Family Smoking Prevention and Tobacco Control Act
Encyclopedia
The Family Smoking Prevention and Tobacco Control Act, is a United States
federal law that gives the Food and Drug Administration
the power to regulate the tobacco industry
. A signature element of the law imposes new warnings and labels on tobacco packaging and their advertisements, with the goal of discouraging minors and young adults from smoking.
, whose CEO noted in a press release that "[t]his bill forces Big Tobacco to disclose the poisons in its products and has the power to finally break the dangerous chain of addiction for generations to come." The ACS press release also noted that the legislation would "require cigarette companies to disclose all ingredients used in cigarettes and to stop using words like 'light' and 'ultra-light' to give the impression that some tobacco products have a lower health risk." The legislation also garnered support from the American Heart Association
, whose CEO noted that the bill "provides a tremendous opportunity to finally hold tobacco companies accountable and restrict efforts to addict more children and adults."
The law was criticized by some as ineffectual, with community health
sciences professor Michael Siegel stating that it "creates the appearance of regulation without allowing actual regulation." Critics argue that without the authority to eliminate nicotine completely, the reduction of nicotine levels in cigarettes may result in compensation by existing smokers, increasing their cigarette smoke inhalation to consume a level of nicotine which will satisfy their cravings. In addition, marketing restrictions enacted by the bill make it more difficult to promote safer smokeless alternatives to cigarettes (though there is no consensus that smokeless tobacco products are, in fact, safer). The restrictions have been disputed on the grounds of free speech, with some stating that the legislation violates the First Amendment to the United States Constitution
.
The bill bans flavored cigarettes, including cloves
, cinnamon, candy, and fruit flavors, with a special exception for menthol cigarette
s. Because the exception helps the largest maker of menthols, Philip Morris
, and eliminates potential competition, the bill has been nicknamed the Marlboro Monopoly Act of 2009. Philip Morris strongly supports FDA regulation. The exemption was reportedly influenced by the Congressional Black Caucus
. The Tobacco Products Scientific Advisory Committee provisioned under the bill is to submit a recommendation on menthol cigarettes to the United States Secretary of Health and Human Services
no later than one year after its establishment.
in FDA v. Brown & Williamson Tobacco Corp.
held that based on their reading of the Federal Food, Drug, and Cosmetic Act
, particularly when considering "Congress’ subsequent tobacco-specific legislation," that Congress had not given the FDA the authority to regulate tobacco products
as customarily marketed. Thus the Family Smoking Prevention and Tobacco Control Act was introduced to respond to the decision, which had held that the Clinton administration's FDA had "overreached" its Congressionally delegated authority, thus giving the FDA the authority the Court determined it had lacked.
on April 2, 2009, by a vote of 298 to 112. The House bill had 178 cosponsors and the companion legislation in the Senate, had 57 cosponsors. On May 20, 2009, the Senate Committee on Health, Education, Labor, and Pensions ordered the Senate bill to be reported favorably with amendments on a 15-8 vote.
The Capitol Hill newspaper The Hill
reported on May 25, 2009, that Senate Majority Leader Reid
planned to move on the bill during the month of June 2009; however it noted that Senators Burr
and Hagan of North Carolina
were proposing alternative legislation.
On June 2, the Senate voted 84-11 to proceed to consideration of the House bill. On June 8, the Senate voted 61-30 on cloture on amendments to the Senate bill. The "Senate bill requires that cigarette health warning labels be large enough to make up 50 percent of the front and rear panels of the package and that the word “warning” appear in capital letters."
On June 11, the Senate passed H.R. 1256 by a vote of 79-17, with 3 Senators not voting. Passage of the legislation came a week later than was originally scheduled. The Senate's version of the bill was approved by the House on June 12, by a bipartisan vote of 307-97.
Media accounts noted that the opposition in the Senate was largely from tobacco farming states, particularly Kentucky, North Carolina, South Carolina and Georgia, with the only Democrat in opposition being Kay Hagan, from North Carolina. Notable exceptions were Virginia Senators Jim Webb
and Mark Warner
who supported the measure, despite the state's connection to the tobacco industry.
The Family Smoking Prevention and Tobacco Control Act was signed into law on June 22, 2009 by President Barack Obama
.
The bill makes no provisions that ban the import of the banned items for personal consumption, only for "sale or distribution". (Division A Title II Section 201)
, Lorillard, Liggett Group
and Commonwealth Brands, filed a lawsuit against the FDA in August 2011. It should be noted that Altria did not take any legal action. On November 7, 2011, US district judge Richard Leon granted a temporary injunction postponing the implementation of the new warnings, ruling that "It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking - an objective wholly apart from disseminating purely factual and uncontroversial information." It is believed that the issue will ultimately be decided by the supreme court.
In June 2011, the FDA released nine new warning signs containing both graphic text and images that should be included on all cigarette packaging and advertisement by September 2012. Four tobacco companies responded to the mandate by filing a legal challenge in August.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
federal law that gives the Food and Drug Administration
Food and Drug Administration
The Food and Drug Administration is an agency of the United States Department of Health and Human Services, one of the United States federal executive departments...
the power to regulate the tobacco industry
Tobacco industry
The tobacco industry comprises those persons and companies engaged in the growth, preparation for sale, shipment, advertisement, and distribution of tobacco and tobacco-related products. It is a global industry; tobacco can grow in any warm, moist environment, which means it can be farmed on all...
. A signature element of the law imposes new warnings and labels on tobacco packaging and their advertisements, with the goal of discouraging minors and young adults from smoking.
Reception
Passage of the law was supported by the American Cancer SocietyAmerican Cancer Society
The American Cancer Society is the "nationwide community-based voluntary health organization" dedicated, in their own words, "to eliminating cancer as a major health problem by preventing cancer, saving lives, and diminishing suffering from cancer, through research, education, advocacy, and...
, whose CEO noted in a press release that "[t]his bill forces Big Tobacco to disclose the poisons in its products and has the power to finally break the dangerous chain of addiction for generations to come." The ACS press release also noted that the legislation would "require cigarette companies to disclose all ingredients used in cigarettes and to stop using words like 'light' and 'ultra-light' to give the impression that some tobacco products have a lower health risk." The legislation also garnered support from the American Heart Association
American Heart Association
The American Heart Association is a non-profit organization in the United States that fosters appropriate cardiac care in an effort to reduce disability and deaths caused by cardiovascular disease and stroke. It is headquartered in Dallas, Texas...
, whose CEO noted that the bill "provides a tremendous opportunity to finally hold tobacco companies accountable and restrict efforts to addict more children and adults."
The law was criticized by some as ineffectual, with community health
Community health
Community health, a field of public health, is a discipline that concerns itself with the study and betterment of the health characteristics of biological communities. While the term community can be broadly defined, community health tends to focus on geographic areas rather than people with shared...
sciences professor Michael Siegel stating that it "creates the appearance of regulation without allowing actual regulation." Critics argue that without the authority to eliminate nicotine completely, the reduction of nicotine levels in cigarettes may result in compensation by existing smokers, increasing their cigarette smoke inhalation to consume a level of nicotine which will satisfy their cravings. In addition, marketing restrictions enacted by the bill make it more difficult to promote safer smokeless alternatives to cigarettes (though there is no consensus that smokeless tobacco products are, in fact, safer). The restrictions have been disputed on the grounds of free speech, with some stating that the legislation violates the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
.
The bill bans flavored cigarettes, including cloves
Kretek
Kretek are cigarettes made with a blend of tobacco, cloves and other flavors. The word "kretek" itself is an onomatopoetic term for the crackling sound of burning cloves. Haji Jamahri, a resident of Kudus, Java, created kreteks in the early 1880s as a means to deliver the eugenol of cloves to the...
, cinnamon, candy, and fruit flavors, with a special exception for menthol cigarette
Menthol cigarette
A menthol cigarette is a cigarette flavored with the compound menthol, a substance which triggers the cold-sensitive nerves in the skin without actually providing a drop in temperature....
s. Because the exception helps the largest maker of menthols, Philip Morris
Philip Morris USA
Philip Morris USA is the United States tobacco division of Altria Group, Inc. Philip Morris USA brands include Marlboro, Virginia Slims, Benson and Hedges, Merit, Parliament, Alpine, Basic, Cambridge, Bucks, Dave's, Chesterfield, Collector's Choice, Commander, English Ovals, Lark, L&M, Players and...
, and eliminates potential competition, the bill has been nicknamed the Marlboro Monopoly Act of 2009. Philip Morris strongly supports FDA regulation. The exemption was reportedly influenced by the Congressional Black Caucus
Congressional Black Caucus
The Congressional Black Caucus is an organization representing the black members of the United States Congress. Membership is exclusive to blacks, and its chair in the 112th Congress is Representative Emanuel Cleaver of Missouri.-Aims:...
. The Tobacco Products Scientific Advisory Committee provisioned under the bill is to submit a recommendation on menthol cigarettes to the United States Secretary of Health and Human Services
United States Secretary of Health and Human Services
The United States Secretary of Health and Human Services is the head of the United States Department of Health and Human Services, concerned with health matters. The Secretary is a member of the President's Cabinet...
no later than one year after its establishment.
Background
On March 21, 2000, the Supreme CourtSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in FDA v. Brown & Williamson Tobacco Corp.
FDA v. Brown & Williamson Tobacco Corp.
FDA v. Brown & Williamson Tobacco Corp., is an important case in the development of American administrative law.-Legal principle:The scope of authority held by an agency is determined by the agency's organic statute...
held that based on their reading of the Federal Food, Drug, and Cosmetic Act
Federal Food, Drug, and Cosmetic Act
The United States Federal Food, Drug, and Cosmetic Act , is a set of laws passed by Congress in 1938 giving authority to the U.S. Food and Drug Administration to oversee the safety of food, drugs, and cosmetics. A principal author of this law was Royal S. Copeland, a three-term U.S. Senator from...
, particularly when considering "Congress’ subsequent tobacco-specific legislation," that Congress had not given the FDA the authority to regulate tobacco products
Regulation of tobacco by the U.S. Food and Drug Administration
Regulation of tobacco by the U.S. Food and Drug Administration began in 2009 with the passage of the Family Smoking Prevention and Tobacco Control Act by the United States Congress...
as customarily marketed. Thus the Family Smoking Prevention and Tobacco Control Act was introduced to respond to the decision, which had held that the Clinton administration's FDA had "overreached" its Congressionally delegated authority, thus giving the FDA the authority the Court determined it had lacked.
Legislative history
The bill passed the United States House of RepresentativesUnited States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
on April 2, 2009, by a vote of 298 to 112. The House bill had 178 cosponsors and the companion legislation in the Senate, had 57 cosponsors. On May 20, 2009, the Senate Committee on Health, Education, Labor, and Pensions ordered the Senate bill to be reported favorably with amendments on a 15-8 vote.
The Capitol Hill newspaper The Hill
The Hill (newspaper)
The Hill, a subsidiary of News Communications Inc., is a newspaper published in Washington, D.C. since 1994.Its first editor was Martin Tolchin, a veteran correspondent in the Washington bureau of The New York Times....
reported on May 25, 2009, that Senate Majority Leader Reid
Harry Reid
Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...
planned to move on the bill during the month of June 2009; however it noted that Senators Burr
Richard Burr
Richard Mauze Burr is the senior United States Senator from North Carolina and a member of the Republican Party. Previously, Burr represented North Carolina's 5th congressional district in the United States House of Representatives....
and Hagan of North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
were proposing alternative legislation.
On June 2, the Senate voted 84-11 to proceed to consideration of the House bill. On June 8, the Senate voted 61-30 on cloture on amendments to the Senate bill. The "Senate bill requires that cigarette health warning labels be large enough to make up 50 percent of the front and rear panels of the package and that the word “warning” appear in capital letters."
On June 11, the Senate passed H.R. 1256 by a vote of 79-17, with 3 Senators not voting. Passage of the legislation came a week later than was originally scheduled. The Senate's version of the bill was approved by the House on June 12, by a bipartisan vote of 307-97.
Media accounts noted that the opposition in the Senate was largely from tobacco farming states, particularly Kentucky, North Carolina, South Carolina and Georgia, with the only Democrat in opposition being Kay Hagan, from North Carolina. Notable exceptions were Virginia Senators Jim Webb
Jim Webb
James Henry "Jim" Webb, Jr. is the senior United States Senator from Virginia. He is also an author and a former Secretary of the Navy. He is a member of the Democratic Party....
and Mark Warner
Mark Warner
Mark Robert Warner is an American politician and businessman, currently serving in the United States Senate as the junior senator from the Commonwealth of Virginia. He is a member of the Democratic Party. Warner was the 69th governor of Virginia from 2002 to 2006 and is the honorary chairman of...
who supported the measure, despite the state's connection to the tobacco industry.
The Family Smoking Prevention and Tobacco Control Act was signed into law on June 22, 2009 by President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
.
Provisions
- Creates a tobacco control center within the FDA and gives the FDA authority to regulate the content, marketing and sale of tobacco products.
- Requires tobacco companies and importers to reveal all product ingredients and seek FDA approval for any new tobacco products.
- Allows the FDA to change tobacco product content.
- The ban on flavoring applies to any product meeting the definition of a "cigarette" according to section 3(1) of the Federal Cigarette Labeling and Advertising Act. This includes any tobacco that comes rolled such as cigarettes and cigars, and added to this definition in the Family Smoking Prevention and Tobacco Control Act is any tobacco with the purpose to be rolled such as rolling tobacco.
- Calls for new rules to prevent sales except through direct, face-to-face exchanges between a retailer and a consumer.
- Limits advertising that could attract young smokers.
- Requires cigarette warning labels to cover 50 percent of the front and rear of each pack, with the word warning in capital letters.
- Requires FDA approval for the use of expressions such as "light, "mild" or "low" that give the impression that a particular tobacco product poses less of a health risk.
The bill makes no provisions that ban the import of the banned items for personal consumption, only for "sale or distribution". (Division A Title II Section 201)
Constitutionaly
The constitutionally of the provision requiring graphic warnings on cigarette packs has been questioned with tobacco companies and others saying that the new warnings violated the first amendment by go beyond being informational and require manufactures of a legal product to "engage in anti-smoking advocacy" on the government's behalf. R.J. ReynoldsR.J. Reynolds
Richard Joshua "R. J." Reynolds was an American businessman and founder of the R. J. Reynolds Tobacco Company....
, Lorillard, Liggett Group
Liggett Group
Liggett Group , formerly known as Liggett & Myers Tobacco Company, is the fourth largest tobacco company in the United States. Its headquarters are located in Durham, North Carolina, though its manufacturing facility is 30 miles to the west in Mebane, North Carolina...
and Commonwealth Brands, filed a lawsuit against the FDA in August 2011. It should be noted that Altria did not take any legal action. On November 7, 2011, US district judge Richard Leon granted a temporary injunction postponing the implementation of the new warnings, ruling that "It is abundantly clear from viewing these images that the emotional response they were crafted to induce is calculated to provoke the viewer to quit, or never to start smoking - an objective wholly apart from disseminating purely factual and uncontroversial information." It is believed that the issue will ultimately be decided by the supreme court.
Lawsuit against FSPTCA
- On August 31 2009,Commonwealth Brands, Inc. v.United States. Filed a filed suit against the United States and the FDA. Alleging that the advertising restrictions embodied in the FSPTCA unconstitutionally infringe on the First Amendment.These provisions include: restricting advertising to black-and-white text; restricting tobacco companies from advertising “light” cigarettes; prohibiting advertising within 1,000 feet of areas where children congregate; banning event sponsorship by tobacco companies; and prohibiting free sample distribution of cigarettes.
In June 2011, the FDA released nine new warning signs containing both graphic text and images that should be included on all cigarette packaging and advertisement by September 2012. Four tobacco companies responded to the mandate by filing a legal challenge in August.
- BBK Tobacco & Foods, LLP vs U.S. Food and Drug Admin., the 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
- Lorillard Inc. filed lawsuit in the U.S. District Court for the District of Columbia and was joined by R.J. Reynolds Tobacco Co., Commonwealth Brands Inc. and Liggett Group LLC, challenging the constitutionality of the FSPTCA, regarding free speech in advertising claims