Does big tobacco have a legal leg to stand on with labeling requirements?

On Tuesday, big tobacco filed suit against FDA over tobacco product labeling, claiming that the agency had overstepped its authority. The lawsuit is in response to a guidance issued in March which requires that tobacco companies submit their labeling changes for approval.

Marlboro, Camel, and Newport cigarettes, all subsidiaries of Altria Group Inc., Reynolds-American Inc. and Lorillard Inc., have come together in a lawsuit arguing that the Tobacco Control Act, which initially gave FDA authority to regulate the industry, gave limited control over labeling. FDA said that it does not comment on lawsuits.

“We disagree that FDA’s new requirements that manufacturers must obtain agency authorization before changing certain product labels when the actual physical tobacco product remains exactly the same,” said Brian May, an Altria spokesman to Morningstar News. “We’re asking the court to resolve these issues so that we and other manufacturers know how to proceed.”

Big tobacco says that the labeling requirements could be something as minor as a color or logo change.

According to The Consumerist:

The plaintiff tobacco companies contend that, even though the guidelines are not legally binding, following them has the effect of locking manufacturers into all existing packaging designs or opens them up to financial and legal costs if they make changes.

The industry contends that FDA has a right to regulate labeling changes that present a lower risk to the smoker, while not regulating all labeling. Such requirements would be in violation of big tobacco’s First Amendment Rights.

In its latest guidance, FDA said that it wanted premarket approval of any new tobacco products and it considered new labeling to be part of that guidance. According to FDA:

FDA does conclude, however, that if a product’s label is modified in any way that renders the product distinct from the predicate, even if its characteristics remain the same, the modified product is a new product under section 910(a)(1)(A) of the FD&C Act because that product was not commercially marketed in the United States as of February 15, 2007.

The 2009 Family Smoking Prevention and Tobacco Control Act requires that a pictorial warning label cover 50 percent of the back panel of a cigarette box. The new labels have been found to effectively inform smokers of the impact that cigarettes can have on their health. Those that regularly smoke are also constantly exposed to the warning labels. Furthermore, the warning labels help create the image that not smoking is the norm and that smoking presents an unnecessary risk to consumers. This is a good thing considering that there are still 43.8 million smokers in the U.S. and half of them will die prematurely as a result of their addiction. It’s a label that is in fact incredibly accurate and conveys the risk at hand for those that choose to smoke cigarettes.

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Image of a tobacco box from Shuttershock

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Electronic cigarettes, also known as e-cigarettes, may contain 10 times the amount of carcinogens when compared to regular tobacco, according to Japanese researchers. And even worse, they’re most popular among young people and those trying to quit smoking.

Electronic cigarette sales have blown through the roof, in fact, the industry hit $2 billion in 2013, tripling its figures from the year before. Some think that electronic cigarettes may actually surpass cigarettes in popularity within the next decade and that’s a big market to fill.

E-cigarettes work by heating a flavored liquid that contains nicotine into a vapor which is then inhaled–like cigarettes but without the smoke. Researchers have found that e-cigarettes may contain chemicals like formaldehyde, a known carcinogen used in building materials and embalming fluids.

“In one brand of e-cigarette the team found more than 10 times the level of carcinogens contained in one regular cigarette,” said researcher Naoki Kunugita to AFP, adding that the amount of formaldehyde detected varied through the course of analysis.

“Especially when the… wire (which vaporises the liquid) gets overheated, higher amounts of those harmful substances seemed to be produced.”

Japan, like many other countries does not regulate e-cigarettes because so little is known about them. In the U.S., they’re also unregulated even though FDA is currently looking into them. Companies don’t have to list ingredients and some have been found to contain diethylene glycol, an ingredient found in antifreeze.

In August, the World Health Organization called for governments to ban the sale of e-cigarettes to minors warning of the risk to unborn children and young people. Additionally, a United Nations health body said they should be banned from public indoor spaces.

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Electronic cigarettes are hailed as the healthier, more considerate alternative to traditional tobacco, but new research may force those claims to go up in smoke.

It took a long time, and a lot of public education, but cigarette smoking is at an all time low. The American Cancer Society reports that “cigarette smoking has decreased among adults in the United States from about 42% of the population in 1965 to about 19% in 2011.” Before you start your victory dance, that still means that about 43.8 million (or 1 in every 5) adults smoke cigarettes.

In recent years, electronic cigarettes have emerged as a possible antidote to our cultural obsession with smoking. Rather than burning tobacco, these battery-powered devices use heat to vaporize liquid nicotine. This delivers the desired buzz, but produces no smoke, which means anti-smoking regulations don’t apply.

Sounds great, right? Smokers get the nicotine they crave and the rest of us get to breathe clean air. There’s even some evidence that people who switch from real tobacco to electronic cigarettes are more likely than those who use nicotine patches to quit smoking altogether. Unfortunately, new research also suggests that these hand-held vaporizers might not be the benign substitute that e-cigarette companies want us to think they are (surprise, surprise).

A study published recently in France’s National Consumer Institute claims that electronic cigarettes contain “a significant quantity of carcinogenic molecules” despite the fact that they don’t burn real tobacco.

“Using a new method of testing, researchers found that in three out of the ten e-cigs studied, the level of formaldehyde, a known carcinogen, came close to the amount in conventional cigarettes,” reports The Week. “Furthermore, a highly toxic molecule called acrolein was detected “sometimes at levels even higher than in traditional cigarettes,” said Thomas Laurenceau, chief editor of the magazine.

These findings confirm what the US Food and Drug Administration hinted at back in 2009. At the time, the agency, which has not approved electronic cigarettes, said that some samples contained ingredients found in anti-freeze.

If this is true, and electronic cigarettes do contain all of the same cancer-causing crap as traditional tobacco products, is it wrong to exempt them from smoking bans? Is allowing these vaporizers to be used indoors, even on airplanes, a dangerous hypocrisy that puts the rest of us at risk?

New York City Mayor Bloomberg seems to think so. Electronic cigarettes are the focus of the ban-happy Mayor’s latest health campaign. “The city’s Health Committee is considering several proposed ordinances related to cigarettes, including one that would classify e-cigarettes as tobacco products,” reports The Week. If successful, e-cig smokers would be out in the cold with their tobacco-smoking counterparts.

Such a ban, just like laws against traditional smoking in public places, is controversial. Should people be allowed to decide what they put into their bodies, harmful or not? Or is it the government’s place to protect public health by limiting the use of both real and electronic cigarettes? Share your thoughts in a comment.

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“The beauty of quitting is, now that I’ve quit, I can have one, ’cause I’ve quit.” – Tom Waits

As a conscious human living in America you have probably been aware for some time now that smoking is bad. It increases the incidence of lung cancer, heart disease, birth defects and dead puppies. But young adults of the 18-to-25 variety – especially those of the lady persuasion – are smoking more than any other age group, even though they’ve grown up with the most complete access to information on smoking’s attendant health risks. Seriously, is this because of Mad Men?

Health organizations and anti-smoking activists have herded American smokers out of the public sphere, hustling them away from parks, bars, restaurants, airports, federal buildings, and malls, generally for the greater good. Fewer smokers lighting-up in fewer places is good news for public health and sanitation. Yet while the number of American smokers has decreased almost by half since the 1960s, the number of young adults who smoke has remained steady for the last decade. At a certain point, anti-smoking ads featuring hundreds of ‘dead’ baby dolls stop being effective and start being ridiculous. Demonizing smoking as being its own separate brand of evil (as opposed to obesity or binge drinking) doesn’t do much to reduce smoking, although it does go a long way toward making nonsmokers feel morally superior.

Accepting that for a certain subset of the population smoking will most likely always be a popular recreational activity may be more useful in reducing its environmental impact than trying to shame smokers into hiding. The electronic cigarette, or ‘e-cigarette’, a reusable, battery-powered nicotine-delivery system is a definite step in the right direction. It’s still chocked full of all those hard-to-pronounce chemicals like acetylpyrazine and terpineol (in other words, it’s still not good for you), and its legal status in many countries is still under review. It vaporizes a liquid nicotine cartridge (rather than using fire, as a traditional cigarette), has no disposable filters to end up in the trash or on the sidewalk, and comes recommended as a better alternative to cigarettes, pipes and cigars by the American Association of Public Health Physicians.

The e-cigarette isn’t green by any stretch of the imagination. Quitting smoking, or not starting at all, is still ideal. But anything that reduces the incidence of second-hand smoke and hazardous litter is something worth investigating. Plus, you’ll still look totally cool puffing away. Don Draper might just approve.

Image: SuperFantastic

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