Smoking Abroad and Smokeless at Home: Holding the Tobacco Industry Accountable in a New Era

Abstract

In June of 2009, President Obama signed into law historic legislation that gives the Food and Drug Administration authority to regulate tobacco products. With this law, the government has finally meaningfully addressed the pressing need for national legal regulation of tobacco products, a need that has been apparent for decades. In this article, I assess the new law in light of the means by which the tobacco industry made a deadly and highly addictive product - the cigarette - a defining feature of American society and culture. Numerous scholars have cogently documented and analyzed the industry’s deceptive manufacturing and marketing practices. This article contributes to that literature by providing a theory describing the industry’s strategy, which serves to underscore its extreme malleability and to justify substantial legal intervention. I call the strategy a “disinformation plus path-dependence” strategy, as it consists of (1) the pervasive dissemination of disinformation to encourage nonrational decisionmaking by consumers about product use, and (2) the subsequent deprivation of free choice on the part of those who become addicted to the products, even if the disinformation problem is corrected.

After explaining how the industry used this strategy to sell cigarettes and the government’s inadequate responses, I highlight the two most recent manifestations of the strategy that the industry has implemented in response to declining U.S. cigarette sales: heavy marketing of smokeless-tobacco products in the United States and of cigarettes in other parts of the world, particularly in developing countries. Given the nature of the industry’s strategy, and, in particular, of these two recent manifestations, I argue that, although the new law is a significant step, it will not alone succeed in countering the industry’s most recent or future manifestations of its strategy. I thus call for adoption of further national and transnational policy measures based on the lessons we have learned over our decades-long experience with the “disinformation plus path-dependence” strategy.