WASHINGTON -- Politicians have extraordinary shoulder joints that enable them to pat themselves on the back, and last week the president, a master of that calisthenic, performed it in the Rose Garden. His subject -- aside from himself, as usual -- was the bill by which Congress authorized the Food and Drug Administration to regulate tobacco. The president called this "a bill that truly defines change in Washington" and "changes the way Washington works and who Washington works for."
Our leaders are often wrong but rarely so precisely wrong. In two important particulars the bill is a crystalline example of Washington business as usual -- the protection of the strong. The bill was supported by America's biggest tobacco company and by the Democratic Party's fountain of funds, the trial bar.
Congress could ban cigarettes, therefore it could ban tobacco advertising. Instead, tobacco advertising and promotions will be even more severely curtailed. These restrictions merit a constitutional challenge. Although commercial speech does not receive full First Amendment protection, Congress should not be allowed to effectively prohibit truthful communication about a legal product. Philip Morris, however, can live -- indeed, can flourish -- with the new restrictions on the marketing measures by which less powerful companies might threaten its dominance. And lest courts conclude that companies cannot be sued for behavior (selling cigarettes) governed, hence authorized, by a regulatory body, the bill stipulates that it shall not be construed to limit "the liability of any person under the product liability law of any state."
Government policy regarding tobacco, as regarding so much else, is contradictory and unlovely. Nevertheless, it has been, on balance, a success: Americans are behaving much more sensibly.
Before the surgeon general declared tobacco addictive (1988) and carcinogenic (1964), before a character in a 1906 O. Henry story asked, "Say, sport, have you got a coffin nail on you?" people intuitively understood that inhaling smoke is unhealthy. Smoking is addictive (although there are about as many ex-smokers as smokers), sickening, often fatal and usually childish: Ninety percent of all smokers start by age 18; few start after 21. But death and intelligence cost the companies 6,000 customers a day, so that many new smokers must be made daily just to keep up.
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