Wednesday, 24 June 2009 13:29

Is FDA Control of Tobacco Unconstitutional and Other Feedback

Written by Larry Waters
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or, other than Philip Morris, did anyone in Congress or the White House even READ Kennedy/Waxman before it became the Law of the Land?

Ted KennedyAny rational person reading the Kennedy/Waxman legislation President Obama recently signedHenry Waxman - Ted Kennedy has a brain tumor; what's Waxman's excuse? into law would be aghast at how poorly written it was.  The so-called Family Smoking Protection and Tobacco Control Act accomplishes neither.

It is no secret that Black Americans who smoke are overwhelming menthol cigarette smokers.  By keeping menthol legal as a flavoring for cigarettes, FDA is not only mandated to save Lorillard Tobacco and Newport Cigarettes from extinction, but to condemn more Black Children to cigarette addiction.

The joke may be on Lorillard though, as Altria Group's Philip Morris USA; yes the same Philip Morris USA whose lobbyists wrote a large piece of Kennedy/Waxman,  introduced a brand-new Marlboro menthol cigarette just days before President Obama signed the bill into law.  This cigarette is specifically targeted against Newport and Reynolds Tobacco's Camel Crush.


In a phone interview with Chris Burritt of Bloomberg, Altria spokesman Greg Mathe said of the new Marlboro menthol entry into the now FDA-mandated smoke-filled room, "The cigarette, called Marlboro Blend No. 54, has a "richer, bolder" flavor than Philip Morris USA’s regular Marlboro menthol and Marlboro Smooth menthol cigarettes."

Chris Burritt's article continues Retailers and distributors began receiving shipments on June 17, according to an information sheet distributed to wholesalers and confirmed today by Bill Phelps, another spokesman for Richmond, Virginia-based Altria. It’s the first new Marlboro menthol cigarette since 2007.

Chris Burritt's complete and fascinating article, Altria Introduces ‘Richer, Bolder’ Marlboro Menthol Cigarette can be found at  Some of the other quotes Chris obtained are even more disturbing than the above in their cynicism.  What is clear is that Altria/Philip Morris USA wasted no time or money going after the menthol-smoking public as soon as they were sure the verbiage they had inserted into the legislation protecting menthol was a done-deal.

Does anyone really believe that Marlboro Blend No. 54 was created and launched in conjunction with the passage of S. 625 by coincidence?  Philip Morris USA probably began work on Blend No. 54 a couple of years ago....about the same time they entered into an unholy alliance with Matt Myers of Tobacco Free Kids to create and shepard this legislation into law.

What Myers and CTFK's motivation was and is, I have no idea.  Aside from being a fund-raising and propaganda tool, Kennedy/Waxman will not only do nothing to stop cigarette smoking and children illegally smoking, but will actually encourage it.  Tobacco Free Kids, if that really is what they're all about, sold their soul to Altria and Big Tobacco for no reason that makes any logical sense.  Publicity?  Donations? If they really care about children illegally smoking, this law doesn't do very much about it other than to perpetuate it.

There are also significant Constitutional challenges to this law which could easily have been avoided regarding FDA controlling advertising.

In February 2007, my new friend and comrade-in-reduced-harm-products Bill Godshall testified before the US Senate HELP Committee on the FDA tobacco legislation.  He rightly says that:

"Another concern with S. 625 is that some of its tobacco advertising restrictions are virtually certain to be struck down by the Supreme Court for violating a manufacturer's First Amendment right to advertise to its adult customers.  That is precisely why in 2001 the Supreme Court (in Lorillard Tobacco Co. v. Reilly) struck down a Massachusetts regulation that prohibited outdoor tobacco advertisements within one thousand feet of a school or playground.   And yet, a similar one thousand foot outdoor advertising restriction is contained in S. 625."

Most politicians in Washington are either lawyers or married to one.  Either way, Congress employs a lot of lawyers when "crafting" legislation.  The Supreme Court ruled in favor of Lorillard in 2001. Yet the Senate still felt it prudent to pass a law which, at best would be partially overturned by the Supreme Court and waste millions of dollars in Government lawyer's fees to defend?  As I sub-headed this article, doesn't anyone in Washington read this stuff before they overwhelming vote to approve it?

Here is Bill Godshall's full testimony to the US Senate and you can read the Supreme Court's decision on Lorillard Tobacco Co. v. Reilly too.

Chris Burritt's article wasn't the only one raising eyebrows.  If the Senate had even read the papers or on-line media, they would have seen how flawed and toothless this now-law really is.  Kennedy/Waxman wasn't and isn't worth the paper it was written on.  The ink the President used to sign the law is more valuable than the law will prove to be.

Courtesy of Bill's newsletter, below are some articles which highlight the folly of this wonderful new law which instantly makes our children "safer".  They correctly highlight that the only thing made safer by this Law is Marlboro cigarettes market share.

The insanity isn't over yet, though.  The PACT Act which effectively brands any American who buys tobacco products of any type (except cigars) over the Internet or by phone a Terrorist and stops UPS, FedEx, and the rest from delivering tobacco products to these "Terrorists" (except cigars) is in the Senate now.

I started writing about The PACT Act last year when Rep. Weiner (D-NY) first introduced it.  The clock ran out on getting it through the Senate in the 110th Congress.  PACT was reintroduced quickly in the 111th Congress so that wouldn't happen again.

The Family Smoking Prevention and Tobacco Control Act is so pitiful because all it does in reality is help especially Altria/Philip Morris get bigger while eliminating smaller competitors.  The PACT Act on the other hand, is much more insidious.

My last article on PACT;  Taxation of all Internet Sales: I told you so! was written about a month ago.  Rest assured I and others will be writing more on PACT now that the distraction of Kennedy/Waxman is over.  Not much time left to stop The PACT Act, though.  It already has been overwhelmingly passed by the House and is in the Senate as we speak.

While Kennedy/Waxman affects primarily tobacco manufacturers, The PACT Act is ultimately targeted at every American who buys anything over the internet or by phone.  Be afraid.  Be very afraid.


LARRY WATERSSnus Central Founding Member
FORMER Smoker; CURRENT Swedish Snus User
Reporting From


ANA Mounts Suit to Block Tobacco Legislation Ad Groups Call Bill That Gives Marketing Oversight to FDA Unconstitutional

By Rich Thomaselli
Advertising Age
June 16, 2009


By George Will
NY Post
June 18, 2009

The Devil and the FDA

Philadelphia Inquirer (editorial)
June 17, 2009

Will FDA regulation make Big Tobacco even bigger?
New rules could cement market shares, keep Philip Morris on top for good.

By William Spain
Jun 18, 2009

Tobacco Regulation Benefits Industry, Consumers, and the Public

By Martin Barrington  (Executive Vice President and Chief Compliance and Administrative Officer for Altria Group Inc., which is based in Richmond and is the parent company of Philip Morris USA.)
Richmond Times-Dispatch
June 21, 2009

Tobacco Regulation Is Expected to Face a Free-Speech Challenge

By Duff Wilson
New York Times
June 16, 2009

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