FDA Law Layers Headaches
As if the FDA authority were not enough, the sweeping Family Smoking Prevention and Tobacco Control Act (FSPATCA) adds an additional layer of legal headaches for smokers. The FDA, as you are no doubt well aware, has broad authority over tobacco products, as outlined in the new law.
But, did you also know that the law provides a set of other broad controls to states and local authorities over tobacco?
For example, here is what the Tobacco Law Center* outlines in one of its FAQs:
“. . . the law preempts states from separately licensing tobacco manufacturers and suppliers specifically and exclusively for tobacco product regulation purposes.
“While the new law thus limits state and local authority to regulate tobacco product standards, it leaves in the hands of the states an array of options to restrict or eliminate the sale, distribution, and possession of certain types of tobacco products and non-tobacco products that contain nicotine (e.g., so-called electronic cigarettes). Indeed, states retain significant regulatory authority in the area of tobacco product standards.
“The new law’s product standard section directly prohibits any cigarettes with a characterizing flavor other than tobacco or menthol, but it does not mandate similar changes in other tobacco products.
“The FDA has the power to prohibit the use of flavors in all tobacco products, including menthol, but until the agency chooses to do so, states retain their existing authority to ban any or all categories of tobacco products as a function of states’ jurisdiction over sales and distribution.
“States and localities could, for example, outlaw all cigarettes or classes of cigarettes (e.g., bidis), smokeless tobacco products, etc. The law also preserves state and local governments’ authority to implement fire-safe cigarette laws that regulate the ignition propensity of tobacco products, and permits states and localities to impose additional reporting requirements, including ingredient disclosures, on tobacco product manufacturers in the event states identify any information that has not already been obtained or shared by the FDA. Nor does the law appear to change states’ ability to require licenses and permits from manufacturers or other tobacco industry entities for purposes other than tobacco regulation.
“A fundamental feature of the new law is that it requires FDA review and approval of all new tobacco products before they can be introduced to the market.
“While the FDA will have the responsibility to regulate—or, if it deems appropriate, prohibit—novel or new products, including their marketing, sale and distribution, states and localities retain the power to take enforcement actions to ensure that any new products approved by the FDA are marketed and sold in compliance with federal law and do not hamper state tobacco control efforts.
“States also retain the authority to prohibit the sale of non-tobacco products containing nicotine that have not been approved by the FDA, and to tax or restrict the sale, distribution, or marketing of unapproved non-tobacco products containing nicotine. Advocates and lawmakers should be alert to the fact that many state laws contain definitions of ‘cigarette,’ ‘smokeless tobacco,’ and ‘tobacco product’ that may not be sufficiently broad to cover new types of tobacco products for taxation and other purposes. States are well-advised to modify such definitions to close potential gaps or loopholes.”
I know. That is a lot of type to read in one gulp.
Here’s the skinny: Not only do retailers, and pipesmokers, have to worry about the FDA application, but we also have to watch state legislatures, local city councils, local county governments, and other “governmental” agencies under these bodies.
Heed and read!
These are indeed severe times, not unlike the Prohibition days of the 1920s-’30s.
I offer this additional observation from the Cato Institute with its July 17, 1991 publication Policy Analysis no. 157
Alcohol Prohibition Was a Failure
by Mark Thornton, the O. P. Alford III Assistant Professor of Economics at Auburn University.
“National prohibition of alcohol (1920-33)–the “noble experiment”–was undertaken to reduce crime and corruption, solve social problems, reduce the tax burden created by prisons and poorhouses, and improve health and hygiene in America. The results of that experiment clearly indicate that it was a miserable failure on all counts. The evidence affirms sound economic theory, which predicts that prohibition of mutually beneficial exchanges is doomed to failure.
“The lessons of Prohibition remain important today. They apply not only to the debate over the war on drugs but also to the mounting efforts to drastically reduce access to alcohol and tobacco and to such issues as censorship and bans on insider trading, abortion, and gambling.”
The Cato Institute was founded in 1977 by Edward H. Crane. It is a non-profit public policy research foundation headquartered in Washington, D.C. The Institute is named for Cato’s Letters, a series of libertarian pamphlets that helped lay the philosophical foundation for the American Revolution.
Its mission “is to increase the understanding of public policies based on the principles of limited government, free markets, individual liberty, and peace. The Institute will use the most effective means to originate, advocate, promote, and disseminate applicable policy proposals that create free, open, and civil societies in the United States and throughout the world.
“Almost a generation before Washington, and Jefferson were even born, two Englishmen, concealing their identities with the honored ancient name of Cato, wrote newspaper articles condemning tyranny and advancing principles of liberty that immensely influenced American colonists. The Englishmen were John Trenchard and Thomas Gordon. Their prototype was Cato the Younger (95–46 B.C.), the implacable foe of Julius Caesar and a champion of liberty and republican principles. Their 144 essays were published from 1720 to 1723, originally in the London Journal, later in the British Journal. Subsequently collected as Cato’s Letters, these “Essays on Liberty, Civil and Religious” became, as Clinton Rossiter has remarked, “the most popular, quotable, esteemed source of political ideas in the colonial period.”
Again, read and heed the warnings. Become active, or you may find that smoking a pipe with your favorite tobacco in the confines of your own home in violation of public law!
*–About the Tobacco Law Center
The Tobacco Law Center works to improve tobacco control laws and policies at local, national, and international levels. Through research, policy development, and analysis, technical assistance and consulting, the center helps policymakers, nonprofit organizations, advocates, and health professionals address tobacco-related legal issues. http://tobaccolawcenter.org/
I am posting a link to this article at MPC (www.my-pipes.net). This is valuable information. Thank you! Keep the bad news coming… Perhaps we will eventually prevail for the liberty to continue smoking our pipes.