A Look Back at the Evolution of the Family Smoking Prevention and Tobacco Control Act and the Present-Day Impact on ‘Overlooked and Belated Issues’ — Electronic Nicotine Delivery Products and the Youth Epidemic, Menthol, Graphic Warnings and Corrective Statements

34 Pages Posted: 17 Jan 2019 Last revised: 6 May 2019

See all articles by Roseann B. Termini

Roseann B. Termini

Widener University Delaware Law School

Date Written: January 7, 2019

Abstract

Admittedly, smoking has plagued the United States for generations; however, it was not until the past several years that this issue received more serious scrutiny. Yet, the reality is that as far back as the 1960s, tobacco products posed a serious threat to human health as evidenced by the Surgeon General report that smoking caused cancer.

Fast forward to current times where the United States Food and Drug Administration (FDA) determined that over 1,300 people die each day in the United States due to smoking and over 8.6 million Americans have chronic illnesses linked to smoking. According to the Centers for Disease Control (CDC) in the United States, cigarette smoking is responsible for more than 480,000 deaths annually, including more than 41,000 deaths resulting from secondhand smoke exposure.

Over the years, the rise in teen smoking from the 1990s has escalated. Based on CDC statistics, about 2,000 youth start smoking and 300 youth become day-to-day smokers. This means that using current rates, of smoking among youth, 5.6 million Americans younger than 18 years of age are expected to die prematurely from a smoking-related illness. This denotes about one in every 13 Americans aged 17 years or younger who are alive today. The Center for Tobacco Products (CTP) within the FDA regulates tobacco products with a focused mission; that is, to diminish tobacco related deaths and diseases. Since its existence, the CTP has maintained a critical focus of prevention of youth smoking. Yet, the use of tobacco related products by teens has escalated.

The Family Smoking Prevention and Tobacco Control Act (FSPTCA or Tobacco Act) became law on June 22, 2009. This historic legislation conferred authority to FDA to regulate tobacco products. The FSPTCA or Tobacco Act amended the FDCA and other federal laws by permitting FDA regulatory authority over the manufacture, marketing, and distribution of tobacco products. This includes cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco. Yet, the FSPTCA was silent on, for example, e-cigarettes and other electronic nicotine delivery systems (ENDS).

There are myriad matters concerning tobacco products regulation. However, this article highlights critical issues important to the public health of the United States. This article provides an overview of tobacco products regulation including the FSPTC or Tobacco Act. Yet, issues persist such as undue delay in terms of reissuing graphic warnings for cigarettes and the lengthy legal battles with the language used in court ordered corrective statements are discussed. Further, when enacted, the FSTCA was silent on other tobacco products besides traditional cigarettes such as cigars, pipe tobacco and electronic nicotine delivery systems such as e-cigarettes. To overcome the lack of inclusion in the predicate law, that is, the FSPTCA, deeming regulations were enacted. Despite the deeming regulations, the use of tobacco products including vaping and e-cigarettes has escalated. Finally, what the FDA has accomplished in this regard is discussed along with further recommendations to stem the rise in youth use of e-delivery products.

Keywords: Tobacco Regulation, E-Cigarettes, Family Smoking Prevention and Tobacco Control Act, Food and Drug Administration, Electronic Nicotine Delivery Systems, Youth Smoking

JEL Classification: K23

Suggested Citation

Termini, Roseann B., A Look Back at the Evolution of the Family Smoking Prevention and Tobacco Control Act and the Present-Day Impact on ‘Overlooked and Belated Issues’ — Electronic Nicotine Delivery Products and the Youth Epidemic, Menthol, Graphic Warnings and Corrective Statements (January 7, 2019). Available at SSRN: https://ssrn.com/abstract=3311583 or http://dx.doi.org/10.2139/ssrn.3311583

Roseann B. Termini (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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