Pennsylvania Bar Association Quarterly, p. 147, October 2010
16 Pages Posted: 18 Dec 2010
Date Written: October 16, 2010
According to the Center for Disease Control, approximately 443,000 individuals in the United States die annually due to cigarette smoking. This represents one in five adult deaths each year. Direct medical health costs attributed to smoking are skyrocketing to over $96 billion dollars annually. Cigarette smoking is linked to heart disease and other chronic and often fatal diseases, including lung cancer and respiratory diseases, such as emphysema, bronchitis and pneumonia. Regarding children, the Campaign for Tobacco-Free Kids noted that every day over 3,500 children in the United States try their first cigarette and approximately 1,000 children become daily smokers.
Public awareness of the detrimental health consequences that result from the use of tobacco products has existed since 1964, when the United States Surgeon General informed the nation that smoking causes lung cancer. Congress subsequently initiated tobacco product regulation in 1965 with passage of the Federal Cigarette Labeling and Advertising Act, requiring warning labels and the eventual ban on television and radio advertising. Congress continued to establish a regulatory scheme for tobacco products until the United States Food and Drug Administration (FDA) attempted to regulate tobacco products with the “FDA Rule of 1996”. The FDA Rule of 1996 was the legislation in question before the United States Supreme Court in FDA v. Brown & Williamson Tobacco Corporation in 2000 (Brown). In its opinion, the Court ruled that the FDA lacked the legal authority to regulate tobacco, and invalidated the 1996 FDA Rule.
Due in part to this United States Supreme Court opinion as well as the public health impact of the staggering detrimental impact resulting from use of tobacco products, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act (FSPTCA) on June 22, 2009. The FSPTCA grants the FDA “authority to regulate the manufacturing, marketing and distribution of tobacco products to protect the public health generally and to reduce tobacco use by children and adolescents.” The FSPTCA further requires the FDA to reintroduce the 1996 regulations regarding the restriction of tobacco marketing procedures that promotes the use of tobacco by youth consumers and the restriction of the manner by which cigarette and smokeless tobacco can be sold and distributed.
This legislation has only been in effect for a brief time and therefore the longterm future impact is unknown. One aspect that is certain is the filing of lawsuits against the FDA challenging the FSPTCA. In BBK Tobacco & Foods, LLP v. U.S. Food and Drug Admin. , plaintiffs argued that flavored rolling papers, as utilized in the process of roll-your-own-tobacco cigarettes, did not qualify as tobacco products under the FSPTCA. In another case, Commonwealth Brands, Inc. v. U.S., plaintiff tobacco companies filed suit challenging the constitutionality of the FSPTCA as viable free speech in advertising. As “big tobacco” continues to file these lawsuits, the FDA’s Center for Tobacco Products will have to allocate its limited resources between overseeing the implementation of the provisions of the FSPTCA, continuing to obtain data regarding the achievement of the goals contained in the legislation and advocating for the FSTCA’s legitimacy in courts throughout the United States.
Keywords: Smoking, Tobacco, FDA, Food and Drug Administration, Public Health, Health Law
JEL Classification: K32
Suggested Citation: Suggested Citation
Termini, Roseann B., The Family Smoking Prevention and Tobacco Control Act and Public Health (October 16, 2010). Pennsylvania Bar Association Quarterly, p. 147, October 2010. Available at SSRN: https://ssrn.com/abstract=1726629