Indulge me in a thought experiment. Pretend that drinking something called "lethalcoffee" has been found to cause cancer. There are five or six kinds of gross-flavored lethalcoffees that hardly anyone drinks, like chocolate, cherry, banana, and vanilla. But there's one flavor, mint, that 30 percent of all lethalcoffee drinkers are hooked on. And there's one particular group of lethalcoffee drinkers-let's call them investment bankers-who drink mint lethalcoffee like there's no tomorrow.
Allow 40 years for several million lethalcoffee-related deaths to pile up before the pandemic is taken seriously by the government. (Try to put aside any negative feelings you harbor about investment bankers.) Finally, Congress introduces a Lethalcoffee Safety Act that has a chance of becoming law. Would you imagine that law would:
A) Order the FDA to regulate lethalcoffee but withhold from the agency the power to ban it? B) Ban every flavor of lethalcoffee except mint, the one most people drink? C) Make it really hard for people to sell badcoffee, a new but much less hazardous cousin of lethalcoffee? D) Be co-authored by Starbucks (SBUX)?
How about "E," all of the above? Because that's what Congress is proposing to do in the Family Smoking Prevention and Tobacco Control Act, probably soon to head to President Obama's desk for a signature. Mint-flavored lethalcoffees are menthol cigarettes. The 80 percent of investment bankers who prefer menthols are African-Americans. And the bill was largely shaped by Philip Morris (now called Altria), which sells more cigarettes than nearly every other American tobacco company combined.
"It is a dream come true for Philip Morris," Michael Siegel, a professor at the Boston University School of Public Health, told me. "First, they make it look like they are a reformed company which really cares about reducing the toll of cigarettes and protecting the public's health; and second, they protect their domination of the market and make it impossible for potentially competitive products to enter the market." Other tobacco companies have taken to calling the bill the "Marlboro Monopoly Act of 2009."
It's hard to fathom where Congress is finding the political cover necessary to pass an industry-sponsored love letter like this one. But it's coming from Philip Morris' partner in crafting the legislation: a nonprofit anti-smoking organization called Campaign for Tobacco-Free Kids.
As early as 1998, Philip Morris executives were worried about the continued existence of their industry. Big Tobacco was locked in a battle with Congress over advertising and product regulations. And it was reeling from the $264 billion settlement in the lawsuit brought against it by 46 state attorneys general over Medicare costs for smokers. The future was hazy, and the tobacco companies' ability to fight costly legal battles for the indefinite future was in doubt.
So, as Roll Call recounts, Philip Morris executives made a huge shift in tactics. Rather than beat back every attempt at industry regulation, they initiated the secret Project Sunrise, an effort to help craft those regulations. Part of the strategy was to work with the very anti-smoking groups they had fought for years. Big Tobacco decided to sue for peace in order to win at the negotiating table.
Philip Morris found a willing partner in the Campaign for Tobacco-Free Kids. It was among the more moderate anti-smoking groups, and some of its top staff had worked for Sen. Tom Daschle, so they were well-versed in the art of legislative compromise. The existence of an agreement between Philip Morris and the Campaign is how Rep. Henry Waxman, the bill's main sponsor, has justified the perverseness of Philip Morris' support for a supposed anti-smoking bill.
"Don't let perfect be the enemy of good," has been the old saw the administration uses to admonish interest groups dissatisfied with compromise legislation. But opponents of this bill on both sides are asking, What's the enemy of terrible? Isn't it this bill, which is racist, protectionist, cynical, and misguided? And barring an improbable veto, it will soon become law. Nowhere is the bill's perfidy more obvious than in its failure to ban menthol cigarettes.
The National African American Tobacco Prevention Network released a statement on the bill last May that read, "Tobacco legislation that treats menthol differently from other flavoring additives is incomplete." This is in response to studies showing that menthols are far more addictive then other cigarettes and far harder to quit, no matter what race the smoker is.
And last July, the Harvard School of Public Health released a study showing that tobacco manufacturers carefully controlled the menthol content of cigarettes to maximize its masking of harsh tobacco smoke, even creating new brands for longtime smokers who require increasing amounts of menthol to maintain its numbing, cooling effect.
Menthols accounted for a quarter of the roughly 370 billion cigarettes smoked domestically in 2006 and are more popular here than anywhere else in the world. So far, neither Waxman nor Sen. Ted Kennedy, who shepherded the Senate version through his Health, Education, Labor and Pensions Committee last week, has specifically defended the exclusion of a menthol ban. Waxman notes that after an FDA study, menthol could be banned as well but didn't explain why menthol merited a study period and chocolate cigarettes did not.
By the numbers, the menthol exemption practically paints a bull's-eye on the lungs of African-American smokers. So you might presume that African-American Congress members have an interest in exposing the bill's shortcomings. But of the 42 voting members in the Congressional Black Caucus, 20 are co-sponsors of the bill. Philip Morris' parent company has donated more than $1.5 million to the caucus since 2002 and thousands more to individual members, including James Clyburn, the House whip, and Edolphus Towns, chair of the House committee that favorably reported the smoking legislation. Towns has been dubbed the "Marlboro Man," thanks to his long-standing relationship with Philip Morris. And donations must have been easy for Philip Morris to file; a CBC advisory board member, Shuanise Washington, was treasurer of the organization while she was also Altria's (MO) vice president of government affairs. The tobacconist and the caucus even share a graphic designer.
Ten of the remaining, nonsponsoring CBC members hail from tobacco-producing states that oppose the bill primarily because it puts their home-state tobacco companies at a huge disadvantage to Philip Morris. That leaves 12 African-American Members of Congress who withheld their names from the bill, despite menthol cigarettes' being linked to 14.6 percent of all African-American deaths in 2006. And there are, of course, 217 other co-sponsors, mostly white, ignoring the fact that despite menthol's cultural identification with 4 million African-Americans, double that number of white smokers also partake in the minty tobacco.
The next most popular flavored cigarette, clove, accounts for .09 percent of the market. Those cigarettes will be banned under the bill. Indonesia, which provides 99 percent of the clove cigarettes to the U.S. market, has complained to the U.S. trade representative about the disparity with menthol. If Indonesia brings a protectionist complaint to the World Trade Organization, it would compel our government to prove cloves were banned for health reasons. Namely, the United States would have to show that the flavor of cloves enhances cigarettes' addictive properties. If it can't, the ban could be considered a trade violation.
It's a lose-lose proposition. If the United States proves it banned clove cigarettes strictly for health reasons, it would be admitting that menthol cigarettes, manufactured domestically, are getting a free pass despite their clovelike increased health risks. Which puts the FDA, as the tobacco regulator, in the position of justifying a ban on cloves but not menthols. This is the type of case Siegel refers to when he told me the bill lets "the tobacco companies produce and market the cigarettes and the FDA approve them. The ramifications of this bill go far beyond tobacco control. The bill completely undercuts and undermines the entire system of federal public health regulation in this country."
In other words, the United States will have two choices in the above scenario, both hairy: protect the FDA's independence by admitting it banned cloves but not menthols only to protect Philip Morris' market share or let the FDA manufacture an explanation, contrary to recent studies, by which menthol cigarettes, which are used to lure children to smoke, are just as safe as unflavored cigarettes.
"The fact that the Campaign for Tobacco-Free Kids negotiated this bill with Philip Morris has created a very strange situation," says Siegel. Tobacco-Free Kids currently lists 1,018 organizations that support the bill, but many independent public health experts like Siegel and Elizabeth Whelan, president of the American Council on Science and Health, believe political expedience has forged those alliances. Siegel told me that one part of the bill, which requires the FDA to regulate 4,000 individual chemicals in cigarettes' makeup, even as at least 6,000 other chemicals in cigarettes remain undiscovered and of unknown consequence, "flies in the face of science."
Continues Siegel: "Most health groups are standing shoulder-to-shoulder with Philip Morris in lobbying for this legislation. [But] smaller companies are opposing it. The reason the small companies are standing in opposition is that the bill would essentially freeze current market share." Indeed, a statement by R.J. Reynolds says the bill would make it "virtually impossible for tobacco manufacturers to develop and introduce products that have the potential to reduce the risk of tobacco usage." As troubling as the menthol exemption is, the strangling of these alternative products, and of the competition to Philip Morris, is equally stunning.
Reynolds, in fact, recently rolled out a product developed in Sweden called Snus. The pouches of moist tobacco are sort of a spitless chew for smokers who don't want to go on the patch. While still a health risk, as a replacement for an addicted smoker, studies showed that snus are a "pathway from smoking," rather than, as menthols are, a gateway to it. That's because while menthols taste like a vaporized dinner mint, snus taste more like a "soggy cigarette," according to Forbes. In other words, the product isn't nearly as attractive to young people as it is to hard-core smokers who need their nicotine fix in nonsmoking environments. One study estimates that if all of Europe switched from smokes to Swedish snus, 200,000 fewer people a year would die of lung cancer there.
Then there are electronic cigarettes, tobaccoless sticks that dispense nicotine vapor. These gadgets are already under FDA scrutiny, even though the associated health risks compared to snus are thought to be slimmer still. Anecdotal stories about the novel devices show people are successfully quitting smoking while using them. The smoking bill would further empower the FDA to take action against these cigarette replacements, even though they use no tobacco and aren't made by cigarette manufacturers.
Yet the bill specifically denies the FDA the ability to require nicotine, the main addictive agent in cigarettes, to be eliminated from them. Siegel says: "The industry doesn't have to worry about nicotine being removed and therefore not being able to addict our nation's youth. The age of sale of tobacco cannot be increased. The places where tobacco is sold cannot be restricted. For Philip Morris, there is no longer any serious threat of competition from new, potentially safer, products." (Philip Morris, unlike its competitors, has focused new product development on cigars and chew, two products less affected by the legislation.)
The marketing and advertising restrictions in the bill also seem targeted primarily at Philip Morris' competitors. But even so, Philip Morris, with either towering disingenuousness or a wicked sense of humor, has signaled it will fight those very restrictions, which it used as a chip with legislators and the Campaign to get the bill written. With nary a mention of its role in co-writing the bill, a statement from the company called it "imperfect."
Matthew Myers, the Campaign For Tobacco-Free Kids' director, continues to play the fool. He told ABC News, "Our hope is that the Senate HELP committee will resist all of those efforts to weaken the legislation." It's hard to even understand what Myers means-the doublespeak surrounding the bill is so great its passage will surely be hailed as a victory for anti-tobacco forces. And if Congress could find a way to make the bill any weaker, even the Marlboro Man himself couldn't help but crack a smile.