Commentary: The Old Tobacco Industry Playbook and A Game That Two Can Play

“Philip Morris believes in ‘soup to nuts regulation of the entire industry, and we think that the FDA should be involved in all of that,’ says chief legislative counsel Mark Berlind. He says the company wants to see federal oversight of cigarette ingredients, warning labels, manufacturing, and marketing—with, he adds, a few limitations.”

Slate, July 25, 2002

As we head into fall and our national attention turns en masse to the election outcomes in November, I have to admit that I’m still smarting from the huge hit our nation’s public health took in August as a result of the decision by the U.S. Court of Appeals for the D.C. Circuit on graphic warning labels. Most of the major U.S. tobacco companies challenged the U.S. Food and Drug Administration’s (FDA) regulation requiring these labels, arguing that they violate the companies’ First Amendment rights.

The Court ruled against the new warning labels despite the fact that a growing number of nations around the globe, from Canada to Australia, have successfully employed just these kinds of images to educate smokers on the harms of tobacco to decrease consumption. It was a huge opportunity lost when the Court chose to shield our public from the very real results of smoking. It could well result in more loss of life. Nonetheless, we shouldn’t be surprised and even more importantly, get derailed by it.

The landmark legislation that mandated FDA regulation of tobacco, The Family Smoking Prevention and Tobacco Control Act, has yet to become the “silver bullet” tobacco control advocates had waited so long for. Regardless, the FDA’s Center for Tobacco Products continues to hold enormous promise in the effort to safeguard the public from tobacco and save lives. But to be strategic, we need only consult the history books to predict what lies ahead. The tobacco industry – even if its leading manufacturer, Philip Morris, has made a public show of support for regulation — will continue to fight hammer and tongs as they’ve always done to overturn or delay any measures that might jeopardize their profits. These tactics are certainly not unique to the tobacco industry. Our banking industry is hard at work using this same playbook to attack and delay provisions in the Dodd–Frank Wall Street Reform and Consumer Protection Act.

As leaders in public health, it is our job to do just that, protect the consumer. Tobacco has been and remains the number one preventable cause of death for decades and we know this fight to save lives is a marathon, not a sprint. So we must keep our eye on the ball and remember all that we stand to lose if commercial interests continue to trump public health.

Research confirms what works best to drive down smoking rates – effective public education campaigns, increasing tobacco excise taxes and implementing clean indoor air initiatives. Examples of measures won and lost abound but three stand out for me.

Here at Legacy, we saw it firsthand when Lorillard Tobacco spent five long years tying us up in costly litigation in their futile attempt to shut down our social-norm changing truth® campaign, which was credited with 22 percent of the decline in youth smoking from 1999-2002.

We saw it in California earlier this year when the tobacco industry helped raise $47 million to kill Prop 29 – a proposed $1 a pack cigarette tax that would have convinced many price sensitive smokers to quit.

And we saw it happen in June in the small village of Haverstraw, New York, where a local community with the best of intentions enacted an ordinance to ban tobacco product display and pricing information in stores in an effort to decrease youth exposure to them. In response, the three leading U.S. tobacco manufacturers, Philip Morris, RJ Reynolds and Lorillard, along with other manufacturers and retailer associations, filed suit, launching an extraordinary attack on the Haverstraw town council. Their message was obvious — to send a strong message to others should they dare to consider the same.

This battle is daunting but we can’t give up the fight because there is just too much at stake. We know what works to save lives from tobacco, we just need to continue to muster the will to do them. We have a playbook too. Let’s get back to it.

Cheryl G. Healton, DrPH
President and CEO
Legacy®