News-Record.com

Update: Here's my story from Thursday's paper.

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Updating the menthol story: The U.S. House passed HR 1108, a bill to give the FDA power to regulate tobacco.

But in the final version of the bill that got approval Wednesday afternoon contained this language:

(A) SPECIAL RULE FOR CIGARETTES- Beginning 3 months after the date of enactment of the Family Smoking Prevention and Tobacco Control Act, a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke. Nothing in this subparagraph shall be construed to limit the Secretary's authority to take action under this section or other sections of this Act applicable to menthol or any artificial or natural flavor, herb, or spice not specified in this subparagraph. For purposes of this section, a cigarette or any of its component parts has a characterizing flavor if the cigarette, its tobacco smoke, or the component part imparts a distinguishable taste or aroma other than tobacco or menthol either prior to consumption or during consumption, or is advertised or marketed as having or producing a flavor, taste, or aroma other than tobacco or menthol.

Translation: the bill outlaws cherry, vanilla and other flavors but not menthol. If this bill were passed into law, the FDA could regulate menthol in cigarettes but only after scientific study and a federal rulemaking process - and we all know how fun and straightforward THAT is.

Why is menthol regulation a big deal? Well, if you're Greensboro-based Lorillard or a company like Commonwealth Brands and a bunch of your sales is tied up in Menthol sales, it's a big honking deal. Lorillard owns about a third of the U.S. mentholated cigarette market.

There are a lot of backers of the bill who say that the menthol exception is just fine and worth the tradeoff to get some sort of tobacco regulation rolling. Others take exception.

"More than 80 percent of the smokers in the African American community smoke mentholated products," said William Robinson of the National African American Tobacco Prevention Network. His group initially backed HR 1108 but withdrew its support over the menthol issue. "Why set menthol aside and not immediately ban it like all the candy and fruit flavors?"

Click here to see votes on the bill.
No votes from North Carolina: Greensboro's Howard Coble (R), Virginia Foxx (R), Heath Shuler (D).

Coble offered these prepared remarks during the floor debate:

“During my tenure in Congress I have consistently opposed granting the Food and Drug Administration the authority to regulate tobacco. I do so based upon my philosophical beliefs and the ramifications this legislation would have upon my congressional district and state.

“As I have stated on many occasions, I believe allowing FDA to regulate tobacco in any capacity would inevitably lead to FDA regulating the family farm.

“Permitting FDA on the farm creates uncertainty and adds another burden to the already overwhelmed FDA. Let’s be honest, should the FDA spend its time regulating tobacco on the farm and in manufacturing facilities, despite the warning on cigarettes which alerts users to their danger, or should it focus on the core mission of ensuring the safety and soundness of our food, drugs, and cosmetics.

“I also have concerns with the impact this legislation would have upon tobacco manufacturers and their employees. These companies employ many hard-working North Carolinians, and I believe FDA regulation of tobacco could negatively affect these manufacturing jobs.

“Finally, taxing tobacco companies to fund additional regulation and avoid pay-go problems is ill conceived and will create an incentive for black market activity such as counterfeiting and smuggling.

“Madam Speaker, this legislation is misguided, and in my opinion will not achieve the goals identified by proponents. Instead, I believe it will further exacerbate an already stretched FDA, negatively impact manufacturers and farmers, and create a strain on federal revenues to the Treasury. I adamantly oppose this measure and urge my colleagues to do the same.

“Madam Speaker, tobacco is a product that is lawfully grown, lawfully marketed, lawfully manufactured, and lawfully consumed. We don’t need the FDA inserting its oars into these waters.”

And despite getting the menthol exemption, Lorillard wasn't completely happy with the bill. The company put out the following after the vote:

GREENSBORO, N.C. – July 30, 2008 – The Lorillard Tobacco Company (a wholly-owned subsidiary of Lorillard, Inc. (NYSE: LO)) said that it is disappointed with today’s vote by the House of Representatives to approve a bill that would require the FDA to regulate tobacco. The Company also said that while it fully supports reasonable federal regulation of the tobacco industry, that the FDA is already overburdened and is the wrong agency to carry out this enormous task.

The Company also said that it welcomes the provision in this bill that calls for a scientific review of menthol in cigarettes. While the scientific studies to date do not support a conclusion that menthol cigarettes are more hazardous or addictive than non-menthol cigarettes, the Energy and Commerce Committee noted the importance of ensuring the FDA has the “scientific evidence necessary to make the best decision to protect the public health” for all cigarette additives and constituents.

Lorillard agrees that a proper scientific review based on “sound information and scientific evidence and data,” as the Energy and Commerce Committee report states, with involvement by all interested parties as required under federal rulemaking procedures, will be informative in addressing the questions that are being raised about menthol cigarettes.

The Company said the current challenges facing FDA are well documented. It believes that the addition of a new multi-billion dollar a year industry for the FDA to oversee, when the agency is already struggling to fulfill its core mission, is misguided. The Company said that it is understandable why 82 percent of those surveyed in a February 2008 Zogby poll say they are concerned that regulating tobacco would interfere with FDA’s principle mission to oversee pharmaceutical drugs and the nation’s food supply.

In October 2007, FDA Commissioner Dr. Andrew von Eschenbach, in written testimony before the House Energy and Commerce’s Subcommittee on Health, made it clear that the FDA could play a role in the regulation of tobacco, but that the FDA should not be the responsible agency. Last week, HHS Secretary Michael Leavitt echoed those concerns when he wrote, “The regulatory obligations created by [the FDA] bill would be a significant added responsibility for the Food and Drug Administration and one that is inconsistent with FDA’s mission of ensuring food safety and the safety and effectiveness of drugs, biologics, and medical devices.”

The Company noted that some advocates have characterized this legislation as an important tool to reduce youth smoking. Lorillard firmly believes that cigarette smoking is an adult choice and that children should not smoke. According to government surveys, youth smoking rates are at the lowest levels since the government began studying youth smoking rates more than 30 years ago. Furthermore, for the second consecutive year, all 50 states are in compliance with federal legislation aimed at decreasing youth access to tobacco with the overall rate of compliance at its highest level. The Company added that while more needs to be done to reduce the rate of youth smoking, this specific bill is, in fact, principally focused on adult smokers.

The Company believes the FDA is overburdened and the wrong agency to regulate tobacco – and looks to the Senate for its leadership to find an effective regulatory solution.

There is a companion bill in the Senate that has begun to move through committee over there, although Sen. Richard Burr, R-NC, has expressed some major dislike for the bill.

Update:The Libertarian Party weighs in:

Washington, D.C. – Tobacco regulations that just passed the House "should carry a warning label about their dangerous effects on liberty," says Libertarian Party spokesperson Andrew Davis.

The bill, sponsored by California Democrat Rep. Henry Waxman, would give new powers to the Food and Drug Administration to regulate tobacco ingredients and advertising, as well as the introduction of new products into the market. The bill passed the House 326 to 102 after less than an hour of debate.

"Freedom is going up in smoke," says Davis. "The issue isn't about public health. It is about giving the FDA new powers to regulate a private industry when really we should be moving to privatize the FDA."

Davis says that giving the FDA authority to regulate cigarettes "undermines the notion of individual liberty" for citizens who make informed decisions to smoke. Davis also adds that this regulation will create an artificial monopoly in the tobacco industry by Philip Morris USA--the only major company in the tobacco industry that supports the bill.

Critics have said that only Philip Morris is able to easily adapt to the new regulations, giving it a distinct advantage in the cigarette market over its competitors in what Davis says is "government creating monopolies."

However, "tobacco education is not a problem in the United States," says Davis. "Both private advocacy groups and cigarette manufacturers spend millions on educational programs. We don't need the government obtaining new powers to regulate a personal choice by millions of Americans to light up a cigarette when the risk is clearly known. Yes, smoking is dangerous, but government power is even more dangerous."

Davis says that individuals make a personal choice to smoke, and "government should have no role in helping to make that decision."

"It's a personal choice," says Davis, "and one that an individual should make for himself, as well as pay for the consequences himself."

The Libertarian Party is America's third largest political party, founded in 1971 as an alternative to the two main political parties. You can find more information on the Libertarian Party by visiting www.LP.org. The Libertarian Party proudly stands for smaller government, lower taxes and more freedom.