Dynamic Yet Consistent

Bowling Green (hometown of newly elected Senator Rand Paul) just passed an ordinance to outlaw smoking in public places (there is an exemption for places like tobacco-centric establishments).  The law was passed by a 3-2 vote of the city commission; it had very vocal support from both sides.  I found it a bit odd (out of character may be a better word) that it was brought up by Commissioner Slim Nash who, on other occasions, has expressed many libertarian leanings. [Side note: I am generally a pretty liberal guy, but there are a lot of positions Libertarians take that I strongly support.]

The discussion around this local ordinance got me thinking.

I find it interesting when Libertarians complain about the passage of things like smoking bans.  Isn’t one of the main arguments of libertarianism that laws should be community specific?  I can’t even recall how many times my Libertarian friends have said, "Big government shouldn’t be deciding that, it should be left up to local communities."  The idea is that people can move to communities that share their ideals. Now, it seems to me that things like smoking bans are perfect examples of community based legislation enacted through the will of local communities.  If a business (like the VFW, who strongly opposed the legislation) doesn’t like the law, they are free to move outside city limits and not be covered by the rules.

Maybe I am missing the point, after all, I am not well read on the works of people like Ron Paul or Ayn Rand, but isn’t this a case of Libertarianism in action.  I can understand Libertarians opposing the law while it is up for discussion, but once it passes isn’t it a great example of community based legislation?

For the record, I have mixed feelings on the law, but wanted to post a few thoughts.

A few days ago I wrote a post on the The Family Smoking Prevention and Tobacco Control Act and how it would effectively ban clove cigarettes on September 22 (along with all other flavored cigarettes except menthols.)  Apparently I am not the only one who finds this particular provision of the bill to be backward.  In fact, since making that post, traffic to this blog has more than tripled (and to think, I thought everyone came to read my ponderings on how the Babylonian exile contributed to the concept of an afterlife.)

Earlier I made a few comments on how ludicrous it was to assume that banning flavored cigarettes would decrease smoking among minors.  Sure kids like sweet flavors, but guess what… adults do too.  I mean seriously, how many kids do you know rolling up a pack of Djarum Blacks in their shirt sleeves? If we extend this line of thinking, it is scary to think what else might be banned.  What about sweet liquors?  I know lots of underage youth who like flavored vodka and Jagermeister and schnapps.  Aren’t these possibly contributing to underage drinking?  Probably a lot more than clove cigarettes are contributing to underage smoking — and really, which one is more harmful?  I would say the drinking.  At least you can die a lot quicker with alcohol than you can with smoke.

Does this ban really affect me that much?  No, not really me personally.  But does it irk me?  Absolutely.

Some people are always bashing big government and think any law is infringing on their rights.  I am not part of that crowd, but at the same time I do get frustrated when laws don’t make sense and unfairly limit choice.  What is most frustrating is to see the inconsistencies are that are obviously present because of some major lobbying dollars from Big Tobacco.

I am not the only one who thinks this.  Here are a few comments from others:

I don’t know of any “kids” that smoke clove cigarettes. They are just too expensive for a young adult’s budget. The teenagers and college students that I see smoking use menthol “FLAVORED” cigarettes or Marlboros. What is happening here is a ban on the freedom of choice on what to smoke. Why not eliminate ALL tobacco products? Why not eliminate beer, as that seems to be the alcoholic “beverage of choice” with the local college kids (I live across the street from a large university in Coral Gables, FL.) – Lisa DeTournay

I am extremely disappointed by this legislative move because it is statistically unsound and most of all I would almost consider the ban illegal. If certain types of alcohol (honestly nearly as harmful whether to the persons body or in the damage they cause as a result of being drunk), say for instance any that is over 35%, were banned, the uproar would be as equally widespread. This law is ludicrous and it, in my opinion, is removing a high volume of taxable commodity that the damn US government could be getting revenue from to get its ass out of the economic pig crap were in. Instead of banning them, make the import tax higher. Its really that simple. -Jennifer

In related news, it looks like a few of the major cigarette companies are trying to stop part of the law before it takes affect.  They contend the requirements for packaging and marketing infringe on their free speech.  What is interesting is that this major lawsuit is being filed here in my home town of Bowling Green, KY.  You can read the whole story in the New York Times: Tobacco Companies Sue to Loosen New Limits.

Let’s keep our kids safe, and let’s try to limit underage smoking; but for the love of God, let’s be reasonable and not destroy freedom of choice with asinine laws and regulations.

It is not just a rumor.  As of September 22nd, it will be illegal to sell clove cigarettes in the United States.  On June 11, 2009 the Senate passed H.R. 1256, The Family Smoking Prevention and Tobacco Control Act, with a vote of 79-17.  The next day the House approved the same bill 307-97. (Who said bi-partisanship was dead?!?!).  On June 22 President Obama signed the bill into law.

Here are some of the things the act does:

• Creates a tobacco control center within the FDA and gives the FDA authority to regulate the content, marketing and sale of tobacco products.
• Requires tobacco companies and importers to reveal all product ingredients and seek FDA approval for any new tobacco products.
• Allows the FDA to change tobacco product content and includes a ban on flavorings besides tobacco and menthol.
  • Worthy to note that the ban on flavorings applies to cigarettes only. Pipe tobacco, cigars, and the like are not included.
• Calls for new rules to prevent sales except through direct, face-to-face exchanges between a retailer and a consumer.
• Limits advertising that could attract young smokers.
• Requires cigarette warning labels to cover 50 percent of the front and rear of each pack, with the word warning in capital letters.
• Bars the use of expressions such as “light, “mild” or “low” that give the impression that a particular tobacco product poses less of a health risk^.
  • It is worthy of note that the bill makes no provisions that ban the import of the banned items for personal consumption, only for “sale or distribution”, meaning that the law as it relates to the import of the items in question remains unchanged.

For the most part the regulations require tobacco companies to jump through a few more hoops and be a bit more forthcoming.  There is however one industry that will be completely shut down by this law: the clove cigarette (kretek) industry.  Once the bill goes into effect 3 months after being signed into law (September 22, 2009), it will be illegal to sell cigarettes with any flavoring other than menthol.

Djarum Blacks. A popular clove cigarette that will soon be banned under new legislation.

You can read the pertinent text of the bill below.

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. ~Sec 907.a 1 A of the Family Smoking Prevention and Tobacco Control Bill

What makes this so reprehensible is the fact that the big tobacco companies have been pushing for this legislation.  While it appears to seek to curb products that would be appealing to youth, the truth of the matter is this bill is designed to block competitors of the traditional tobacco dealers.  Just look at the exception of menthols.  Why is that flavor not included?  The answer is simple: because people like Phillip Morris make way too much money to risk pissing them off.  The irony of the matter really comes out when you start looking at statistics.  Are kids using cloves and vanilla cigarettes a “gateway” to “harder” products like Marlboro Reds?  No!  Just read this analysis from Sarah Torribio.

Statistically, however, the flavor kids consider tastiest is straight-up tobacco, in the form of Marlboro brand cigarettes (produced by Philip Morris). Some 81 percent of established teen smokers consider Marlboro to be their ticket to flavor country, according to a February 12 article.

The next most popular flavor is mint, in the form of menthol cigarettes (Philip Morris produces a wide variety of menthol cigarettes, as well). A recent survey by the American Legacy Foundation turned up the following stats: Menthol cigarettes are preferred by 81 percent of black teens, 32 percent of white teens and 45 percent of Hispanic teens.

In 2007, high school students were surveyed about their smoking habits. Twenty percent of teens surveyed said they had smoked in the last month, according to the American Lung Association website.

A relatively small number of these had smoked clove cigarettes (6.8 percent of the 20 percent who had smoked) and candy-flavored bidi cigarettes (1.7 percent).

…

Philip Morris’ reasons for this stipulation are as clear as the numbers. Menthol cigarettes, which add up to 28 percent of cigarettes purchased in the United States, are used by a significant number of teenagers and an even more significant number of minority youths.

Thus, clove cigarettes (which represent .09 percent of all cigarettes purchased in the United States), and flavor cigarettes (which have an even smaller market share) are a red herring.

By supporting this bill, big tobacco companies like Phillip Morris and R.J. Reynolds can appear to be taking a stand against underage smoking, while suffering no ill effects to their bottom line.  In fact, this bill helps them out by reducing the competition.  While I can certainly get behind many of the other elements of the legislation, this ban on flavorings does nothing to protect children and instead limits the choices of adults.  There is no evidence this ban will improve the health or decrease the smoking rate of Americans.  What it best illustrates is how effective big corporations are at shielding their profits because of effective lobbying.  For further analysis I recommend Up in Smoke: How the Tobacco Industry Shaped the New Smoking Bill.