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FDA Regulation Provides Another Smokescreen for Marlboro Man

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Officially, the FDA commissioner position is vacant. But symbolically at least, the new commissioner is the Marlboro Man.

That may seem incongruous as Congress poises to pass legislation this week that would allow the Food and Drug Administration to add regulation of cigarettes to its portfolio of regulating food and pharmaceuticals.

Under the new legislation, the Family Smoking Prevention and Tobacco Control Act, Philip Morris, maker of the market-dominating Marlboro brand and by far the biggest of Big Tobacco, likely will have a seat at the FDA's table. Literally. A non-voting seat on an advisory board.

In fact the industry will be footing the bill for the alleged regulation of its own products. This is window-dressing masquerading as regulation. The foxes will be guarding the henhouse.

The lions of health policy, Sen. Ted Kennedy, D-Mass., and Cong. Henry Waxman, D-Calif., favored FDA regulation of tobacco.

But placing the nation's most lethal consumer product -- cigarettes -- under the control of the FDA would be unwise. And asking a food and drug bureau to promulgate "product safety standards" for cigarettes is an oxymoron that will perpetuate the myth, long fostered by the tobacco industry, that this inherently harmful product can be made safer.

Placing cigarettes under the alleged watchful eye of the same agency that regulates cancer chemotherapy drugs is as hilarious as the Saturday Night Live skit for "The Lung Brush" -- a pipe cleaner you slide down your throat to clean your lungs -- or Homer Simpson promoting "Tomacco." Even more absurd is that the FDA can ban a cancer drug, for its deadly side effects, but can't lay a finger on Marlboro.

The ardent support of this bill by Philip Morris, with fully 50 percent of the nation's cigarette market, should prompt skepticism about the measure and its purported public health benefits.

Until 2004, Philip Morris was in lockstep with the rest of the tobacco industry in fiercely opposing FDA regulation. Then, it cut a deal with Waxman.

Prof. Michael Siegel of Boston University School of Public Health, a prolific blogger on tobacco policy and critic of policy that's more symbol than substance, bemoans "the many loopholes in the legislation that were clearly inserted to protect Philip Morris and retain its support for the bill, rather than to protect the public's health."

This continues the tobacco industry's tradition of doing seemingly surprising things that serve its economic interests.

The FDA tobacco bill is déjà vu all over again. For more than 70 years, every report on the dangers of cigarette smoking was disputed by the tobacco industry, who claimed more research was needed and who promised to identify and remove any component of smoke that was found to cause disease. This led to marketing gimmicks to allay public anxiety about smoking such as filters that promised "Double-barreled health protection," or claimed to be "Just what the doctor ordered," and in at least one instance was made of asbestos.

In 1969, the industry pushed through legislation that removed cigarette ads from TV after seeing the early wave of anti-smoking public service ads drive down cigarette sales. The industry knew that once its ads were off the air, the Fairness Doctrine mandating airing of opposing viewpoints would no longer apply.

Indeed, when the cigarette commercials ended, the broadcast networks yanked the anti-smoking ads, while the industry re-emerged on TV immediately on billboards at sports events sponsored by Marlboro, Winston and Virginia Slims.

This circumvention of the law saved the industry tens of millions of dollars a year in cigarette advertising costs.

Five years earlier, with the backing of the American Medical Association (the lone major health organization to drag its feet in endorsing the Surgeon General's indictment of cigarette smoking) the tobacco industry pushed through legislation for placing unobtrusive and unthreatening warning labels on cigarette packages and ads These warning labels provided the industry cover against lawsuits for liability in smoking's role in disabling and killing millions of Americans.

These moves, with the backing of the American Medical Association, saved the industry millions in advertising and enabled the industry to develop a powerful sports promotion strategy. And the warning labels provided the industry cover against suits for liability in tobacco's role in disabling and killing millions of Americans.

Now the FDA can provide new cover for the industry. The FDA, which has a hard enough time tracking salmonella in pistachios and peanuts and conflicts of interest in pharmaceutical approvals, now would be given regulation of cigarettes.

In effect the new FDA legislation would serve as a Marlboro Preservation Act.

It used to be said that what's good for General Motors is good for the USA. In the new business calculation, where GM=USA, what's good for Philip Morris apparently is good for FDA, and vice versa.

There is no evidence that this bill will save any lives at all. To the contrary, the bill will perpetuate great harm through its grandfathering of Marlboro and other existing brands and its elimination of litigation for consumer fraud.

However well-intended, the bill is misguided. And it should carry its own Surgeon General's warning: "This legislation is deceptive, and it will prove devastating to public health."