Henry Waxman and his band of Merry Mad Men

April 7, 2009 9:00 AM

The House passed H.R. 1256, the Family Smoking Prevention and Tobacco Control Act a few days ago. The bill would put regulation of tobacco under the jurisdiction of the F.D.A. Some are critical of this bill, pointing out that Philip Morris is behind it. But the bill does contain many positive elements. Manufacturers would be required to disclose product ingredients to the F.D.A. and marketing to children would be further restricted.

One aspect that hasn't been discussed much online is the impact this would have on the burgeoning hookah market. The hookah, or nargile, has a long history and culture associated with it. Recently, hookah bars have been popping up in the U.S., especially around college towns. The act specfically targets any flavored tobacco, including cloves, which would outlaw most Hookah tobacco or shisha. This could be seen both as an attempt to discourage smoking among young adults who may not see the health risks in hookah smoking and a move by big tobacco to eliminate new competition.

There is one interesting exception from this flavor ban, menthol cigarettes.

posted by formless (35 comments total)

I wonder if it's possible to flavor your own tobacco, just before or at the time of use? If this passes I anticipate seeing unflavored hookah tobacco right next to bottles of "essential oils" that you can add back into it.

How many times does Congress need to learn that attempting to legislate something for which there is widespread demand out of existence rarely works? I don't even like flavored tobacco and I think it's painfully stupid.
posted by Kadin2048 at 9:10 AM on April 7

There is one interesting exception from this flavor ban, menthol cigarettes.

Gotta keep those Darkies addicted!

As much as I dislike cigarette-smoking, and as much as I really wouldn't mind seeing it disappear from our culture, this is not the way to accomplish that. When the ostensible aim of your legislation is to significantly weaken a particular industry, and you have the full support of the industry leader, you're probably doing something wrong.
posted by uncleozzy at 9:20 AM on April 7 [3 favorites]

Despite the fact that nearly all the Nay votes were from Republicans - which is normally a persuasive endorsement for something - I have to wonder about the advisability of giving even a non-voting seat on the advisory board to a company that the Oregon Supreme Court blasted for its "extraordinarily reprehensible" conduct.
posted by Joe Beese at 9:23 AM on April 7

(I do enjoy the infrequent cigarette, though, and the somewhat less-infrequent cigar. Nicotine is a pretty nice drug, until you're addicted.)
posted by uncleozzy at 9:24 AM on April 7

I quit about two years ago, and I never looked back, and as much as I'd like to see smoking banned in a 50' area around where ever I happen to be at the time (I never realized how much it stunk till I separated myself from it for a while) I don't think that legislation like this is really going to help. All it's going to do is make smokers feel more marginalized and make them work harder to get their fix. If history is any kind of indicator, that isn't going to make anyone quit doing something they are addicted to.

I don't have a solution, but I really wish I had some way of showing people how easy it was to stop, and how much better life is not doing it.
posted by quin at 10:10 AM on April 7

Wow, the tobacco industry is, if anything, smart. The trend in tobacco smoking has been sort of like the microbrew phenomena in beers. Good luck on small ventures having funding to deal with the massive bureaucracy that is the FDA. This just turns tobacco into a government related monopoly. With the high taxation on cigarettes, it is slowly turning into a government enterprise itself. I guess they already do this with the lottery, of course this is a classic scenario where a single entity will produce less for the consumer than in even light competition. Have you ever checked the bolita payoffs vs Powerball payoffs. Bolita always pays off better (ergo the incentive to play it vs state lotto tickets).
posted by geoff. at 10:43 AM on April 7 [2 favorites]

All it's going to do is make smokers feel more marginalized and make them work harder to get their fix.

As a fellow ex-smoker, I agree.

Or as Warren Ellis so eloquently put it: Body Nazis Can Eat My Smoky Fuck
posted by homunculus at 10:59 AM on April 7

Weird. Waxman represents West L.A., including Westwood, which is heavily Persian and has more than a few hookah bars.
posted by drjimmy11 at 11:16 AM on April 7

There's an interesting First Amendment issue in this story. The federal government does not want cigarette manufacturers to label their product with words to the effect of, "This product is regulated and approved by the FDA". Section 103 (tt) prevents them from doing precisely that. And since that's a violation of the manufacturers' First Amendment rights, it will likely be over turned by an appeals court. Good coverage of this aspect, here.

The blog owner had a contest to determine the best public relations statement making use of this future opportunity. My favorite:

10. "We don't want your kids to smoke. But if they do, you can rest assured that our cigarettes are manufactured to comply with the strictest safety standards set by the federal Food and Drug Administration."

-----

Good luck on small ventures having funding to deal with the massive bureaucracy that is the FDA. This just turns tobacco into a government related monopoly. With the high taxation on cigarettes, it is slowly turning into a government enterprise itself. I guess they already do this with the lottery, of course this is a classic scenario where a single entity will produce less for the consumer than in even light competition.

Yes. This is an excellent example of government regulation hurting small business and the consumer, benefiting only the corporation.
posted by BigSky at 11:20 AM on April 7 [2 favorites]

Yes. This is an excellent example of government regulation hurting small business and the consumer, benefiting only the corporation.

The term for this is usually "regulatory capture."

What we're seeing now is the crucial moment where the prey sticks its neck out to grab the tasty morsel, too focused on the prize to notice the snare.
posted by Kadin2048 at 11:56 AM on April 7

From the bill:

(A) SPECIAL RULE FOR CIGARETTES- Beginning 3 months after the date of enactment of the Family Smoking Prevention and Tobacco Control Act, a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke. Nothing in this subparagraph shall be construed to limit the Secretary’s authority to take action under this section or other sections of this Act applicable to menthol or any artificial or natural flavor, herb, or spice not specified in this subparagraph.

So Djarums, etc., would become unavailable in the U.S. as well?
posted by gimonca at 12:20 PM on April 7

This is an excellent first step in making tobacco products safer. They currently contain an unknown mix of chemicals and it seems that this bill will give the FDA the power to start regulating what besides tobacco can go into cigarettes. It is also a foot in the door to more robust regulation. If we never did anything until we had the perfect bill, rest assured we would never do anything.
posted by caddis at 12:24 PM on April 7

This is an excellent first step in creating a black market for tobacco. I can't wait to get arrested in a raid on an illegal hookah shop.
posted by mullingitover at 12:38 PM on April 7 [2 favorites]

I've always wondered why there isn't more grassroots support for banning tobacco products altogether. One would suspect, obviously, to find little federal legislative support as a result of the powerful tobacco lobby. Yet, people get in the US get in a tizzy about (and make illegal) all sorts of things that are equally or less dangerous than smoking and which have lower external societal costs. One example: motorcycle helmet laws. If I don't have a family, who the fuck cares if I don't want to wear a motorcycle helmet (or a seatbelt)? And I would even venture a guess that if I smoke a pack a day it is more likely to kill me than going my whole life without wearing a motorcycle helmet assuming I am a safe driver. But, in many states this is against the law. Another example, the ban on trans-fats in New York. I hardly think that having a little transfat every once in a while is more dangerous to me than smoking... Yet the former is illegal and not the latter. Why no love for a banning smoking altogether? At least transfat things taste and smell good -- unlike the disgusting smoke stench. (Note: I don't necessarily support a smoking ban, just wondering why you don't hear this brought up as an option by the American supermajority of non-smokers.)
posted by gagglezoomer at 1:03 PM on April 7

Why no love for a banning smoking altogether?

Yes, the whole eighteenth amendment thing turned out smashingly.
posted by caddis at 1:40 PM on April 7 [2 favorites]

What else is a guy meant to do with his kids if not a trip now and then to flavour country? Think of it as lining their lungs to help them better cope with the harsh realities of traffic congestion.
posted by turgid dahlia at 1:47 PM on April 7

While I'm not a lawmonger I don't think this puts the ban on hookahs, though it would seem to ban cloves.

(A) SPECIAL RULE FOR CIGARETTES- Beginning 3 months after the date of enactment of the Family Smoking Prevention and Tobacco Control Act, a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor ...

What's a cigarette?:

‘(3) CIGARETTE- The term ‘cigarette’--

‘(A) means a product that--

‘(i) is a tobacco product; and

‘(ii) meets the definition of the term ‘cigarette’ in section 3(1) of the Federal Cigarette Labeling and Advertising Act; and

‘(B) includes tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette or as roll-your-own tobacco.

‘(4) CIGARETTE TOBACCO- The term ‘cigarette tobacco’ means any product that consists of loose tobacco that is intended for use by consumers in a cigarette. Unless otherwise stated, the requirements applicable to cigarettes under this chapter shall also apply to cigarette tobacco.

...

‘(15) ROLL-YOUR-OWN TOBACCO- The term ‘roll-your-own tobacco’ means any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes.

Federal Cigarette Labeling and Advertising Act:

(1) The term “cigarette” means—
(A) any roll of tobacco wrapped in paper or in any substance not containing tobacco, and
(B) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subparagraph (A).
posted by TheOnlyCoolTim at 2:08 PM on April 7 [1 favorite]

Argh. I'd be fine with regulating tobacco more, but banning flavored cigarettes is just stupid, and arguably racist (cloves, for example, are most heavily smoked by nonwhites). Of course menthol is excepted, because Philip Morris and the other big cigarette companies here make those. Other flavors, which they don't make, are banned. Surprise. It's like getting Exxon to write the rules for alternative energy: anything is fine as long as it uses oil.

On the positive side, if marijuana gets legalized/decriminalized here in CA, the weed dealers will have a new market in cigarettes. I was feeling bad for them.
posted by wildcrdj at 2:20 PM on April 7

Yes, the whole eighteenth amendment thing turned out smashingly.

Ergo, society should never enact prohibitions against behaviors/activities/substances that are harmful to the general health or well being of its citizens.

But seriously, can you imagine cigarette "speakeasies"?
posted by gagglezoomer at 2:22 PM on April 7

Wildcrdj: w/r/t racism and flavored cigarettes - isn't the true racist behavior by the tobacco companies that target minorities with flavored cigarette advertising?
posted by gagglezoomer at 2:23 PM on April 7

(cloves, for example, are most heavily smoked by nonwhites).

Cite? You clearly did not attend my high school.
posted by applemeat at 2:59 PM on April 7

Yeah, there's an interesting demographic question in there — is there any part of the country with more Indonesians than goths?
posted by nebulawindphone at 3:11 PM on April 7

(cloves, for example, are most heavily smoked by nonwhites).

You mean like goths? Are they even a race? I know they were, but are they still?
posted by turgid dahlia at 4:00 PM on April 7

But seriously, can you imagine cigarette "speakeasies"?

speakeasies? no, crime and smuggling, yes, big time.
posted by caddis at 4:07 PM on April 7

gagglezoomer: "Ergo, society should never enact prohibitions against behaviors/activities/substances that are harmful to the general health or well being of its citizens.

"But seriously, can you imagine cigarette 'speakeasies'?"

If you don't understand that a full-fledged black market complete with gangsters and bloodshed would spring up the very second cigarettes are outlawed, you should sit down: I have some bad news about Santa Claus.
posted by mullingitover at 5:48 PM on April 7 [1 favorite]

speakeasies? no, crime and smuggling, yes, big time.

A win-win situation for the state.
posted by telstar at 5:50 PM on April 7

Hmmm, good catch TheOnlyCoolTim. From the sections you quoted, I guess the question is: Is hookah tobacco "suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes."?

I don't think shisha tobacco can be easily rolled up and smoked. It's moist, and from what I understand doesn't burn that well in that form. I think the FDA will go after this form of tobacco though, and once they have the authority it will be easier to implement restrictions.
posted by formless at 6:23 PM on April 7

This is an excellent first step in making tobacco products safer.

caddis, i couldn't disagree with you more. this bill has absolutely nothing to do with making tobacco products safer. it's the same old politics as usual. please check out dr. michael siegel's blog and get informed.


posted by brandz at 6:50 PM on April 7

http://tobaccoanalysis.blogspot.com/
posted by brandz at 6:55 PM on April 7 [1 favorite]

caddis, i couldn't disagree with you more. this bill has absolutely nothing to do with making tobacco products safer. it's the same old politics as usual. please check out dr. michael siegel's blog and get informed.

So, what would you do to solve this issue?
posted by caddis at 7:21 PM on April 7

The hookah, or nargile, has a long history and culture associated with it.

My socks are missing. I blame the nargiles.
posted by scalefree at 8:12 PM on April 7

A nargile hookah gave me crabs.
posted by turgid dahlia at 8:34 PM on April 7

I'm not trying to put words in brandz's mouth, but I'll toss out my two cents regarding what I think ought (but has no chance, sadly) of happening...

First, I don't think tobacco or smoking is really that dire of an "issue" to be "solved" to begin with, particularly not at the Federal level where regulatory capture is all too common. States and localities are doing a pretty fine job creating smoke-free zones and implementing cigarette taxes as residents in various areas decide they like the ideas and are ready for them. This sort of local, bottom-up change is more effective in my experience, and also alienates a hell of a lot fewer people along the way, than ham-fisted, top-down mandates from On High.

But that aside and speaking generally, prohibiting smoking around children or in enclosed public spaces seems utterly reasonable. As a non-smoker, I don't want to be stuck in a subway car and forced to inhale smoke, and I certainly don't want children (who by definition cannot consent) to be.* Cigarette smoke in workplaces should be treated like any other environmental hazard; employers should have the option of offering and ensuring the use of personal protective equipment by employees, abating the smoke via ventilation (which they would have to ensure actually functions) or simply prohibiting smoking. Treat it the same way you would toxic gas and airborne particulates in a coal mine, and my strong suspicion is you'd eliminate smoking in nearly all workplaces, but leave open the option for those establishments focused on smoking to both allow smoking and provide an acceptably-safe workplace.

Requiring tobacco companies to clearly label their products both to identify the ingredients and the fact that they're severely unhealthy are good things. I have no problem with that — anything to help the purchaser make an informed decision. I'd be okay with the full-on European-style cancerous-lung graphic in a black box warning: don't let anybody claim later on that they didn't know cigarettes would kill them, and pretty horribly too. And require printing of the ingredients (or maybe mass-spec analysis of the byproducts of combustion? that seems like it'd be more important) so that buyers can shop for tobacco that either has or is free of additives as they prefer.

But the goal of these labels should not be a reduction in tobacco consumption per se; it should be that all tobacco consumption is done by informed buyers. If adults who despite knowing the health effects of tobacco and its ingredients want to burn and inhale it, they should have the right to do that. They should have the right to smoke whatever flavor of tobacco they want, via whatever device they want (cigarette, cigar, pipe, hookah, etc.), as long as they are not forcing it on anyone who can't or doesn't want to consent to inhaling smoke. Government should recognize that their choice to smoke is a legitimate one and should be respected, and government's role should not be attempting to change their behavior, but attempting to let them do what they want to do as much as possible while reducing or mitigating the harm they do to people other than themselves. Taxes on cigarettes are a legitimate means to this end, as long as they are focused on mitigating external costs paid for by the public and not simply on punishing smokers.

The holy grail, the optimal scenario, is not a world without smoking or smokers, and it's especially not one where smoking is illegal. The optimal outcome is a world where smokers can smoke if they make an informed choice to do so, and can do so without harming anyone but themselves. Where the government tries, as non-judgmentally as possible, to enable smoking for those who want to do it, and quitting for those who want to stop and find they need help (paying for such programs seems a good and reasonable use of tobacco taxes). Any legislation that treats smoking or smokers as something to be eradicated, or as a "problem" to which a "solution" must be found, is inherently misguided.

* I think it goes without saying but I'll just say it to be clear: I think prohibiting underage individuals from smoking — however we want to define 'underage' with regard to making serious, long-term decisions — is quite acceptable.
posted by Kadin2048 at 8:34 PM on April 7

I totally agree Kadin2048 and this bill is an important first step in that direction. The mere fact that FDA gets any say at all is huge, really huge. It is the culmination of years of effort. That this ability to regulate comes with shackles and that the bill has other major flaws should not prevent it from coming into law.l The alternative is doing nothing. I am so sorry to the very tiny minority of people who smoke clove cigarettes. and I can't figure out why this bill has such a hate on for them, but you probably couldn't even fill the seats in Madison Square Garden with the entire clove smoking coven so too bad for them.
posted by caddis at 4:16 AM on April 8

I am so sorry to the very tiny minority of people who smoke clove cigarettes. and I can't figure out why this bill has such a hate on for them, but you probably couldn't even fill the seats in Madison Square Garden with the entire clove smoking coven so too bad for them.

There seem to be a couple of motivations in play. One of them is an overall goal of the bill to let the FDA keep bizarre additions out of cigarettes, which major U.S. tobacco companies have a history of doing. Another one is a bit of hysteria about flavored cigarettes in general, that manifests itself as another "think of the children!" arguing point. This is usually aimed at bidis from India, some of which come in fruity, supposedly "candy" flavors.

Clove cigarettes are smoked by a couple of hundred million people in Indonesia every day, and aren't unusual or bizarre from a global perspective, even if they're more of a subculture thing in the U.S. I don't know about kids these days, I can't imagine that they'd be more or less attractive to them than anything else smokable out there, leaving goth attractions out of the equation. Plus, they're already more expensive because they're imported.

If Djarums, Sampoernas, Gudang Garams, etc. are pulled from U.S. shelves, they'd be collateral damage from the government trying to get rid of genuinely adulterated cigarettes, which does need to happen, and from the government going into hysterics over "candy cigarettes", which to me smells like mostly manufactured hysteria. I don't think that hysteria is some sort of anti-goth thing by any means. I'd guess that the authors of the bill have little idea that cloves are a "goth thing". It looks more like old congressmen freaking out over banana cigarettes supposedly being sold to kids like candy, and cloves just got thrown in the mix.

My prediction about the environment you'd end up with is that cloves would become a grey-market product like absinthe was until recently. It probably wouldn't be illegal to possess them, but it would be illegal to sell them in the U.S., and if a particular customs or border agent notices them during an inspection, they could confiscate them. Ordering them from overseas would be mostly uncomplicated for persons with ability to pay online. (That's only a guess, since law hasn't been passed yet, actual regs haven't been issued, etc.)

CDC fact sheet on bidis and kreteks.
posted by gimonca at 6:07 AM on April 8