Former FDA commissioner examines tobacco regulation in ICA talk

Hannah Eason, News Editor

Tobacco regulations during the 1990s were an uphill battle, said David Kessler, who was commissioner of the U.S. Food and Drug Administration from 1990 to 1997, during his talk at the Institute for Contemporary Arts on Monday evening.

While commissioner, Kessler was involved in the implementation of the Nutrition Labeling and Education Act — which required labeling on packaged foods — and the regulation of the tobacco industry. The event was presented by VCU’s Center for the Study of Tobacco Products and the College of Humanities and Sciences.

Here are highlights from the talk. Excerpts have been edited for length and clarity, and historical context has been added.

On tobacco regulation in the early 1990s:

Where do you start to look, and what’s the question? It took us two years just to frame the question the right way. You don’t know if you have jurisdiction over tobacco. No one had ever assumed jurisdiction.

We asked our colleagues at the Federal Trade Commission, who said that they had been regulating tar and nicotine levels for decades, and said they had data back to the 1980s. We said, “Send us all your data.” And you see that on the sales with nicotine and tar levels and smoke as of 1982. Something I didn’t understand is that tar levels would drop, but nicotine levels had increased. How can that happen?

On the late-’90s Supreme Court case regarding the FDA’s attempt to regulate tobacco:

We weren’t as lucky in the Supreme Court. First question from Justice Sandra O’Connor: ‘“Nicotine is no more addictive than a horror movie, is it Solicitor General?” My heart sank. I know it was a generational thing, and they don’t quite understand. We lost 5-4 in the Supreme Court. Normally, Supreme Court looks to the words of the statue, right? Certainly that’s the conservative temperature — looking at the intent of nicotine on the structure and function of the body. We had all this evidence, and they didn’t want to look at any of it.

In March 2000, the Supreme Court ruled that the FDA did not have the authority to regulate tobacco in Food and Drug Administration v. Brown & Williamson Tobacco Corporation. The FDA argued that it had the authority to regulate via the Food, Drug and Cosmetic Act, which gave the administration jurisdiction over “drugs” and “devices.” The tobacco industry argued that nicotine was not a drug.

On the tobacco industry’s marketing toward women in the 1920s:

The real progress came out of the second part of our investigation. Who smoked cigarettes in the early 1900s? Men. Who did the industry target to in the 1920s and 1930s? For women, they were forces of liberty, symbols of freedom. They were granted with emancipation and liberation and the right to vote. There’s always that march down 5th Avenue which convinced women to smoke.

After World War II, public relations expert Edward Bernays was hired by the American Tobacco Company to open the tobacco market to women. Bernays organized a public display of women smoking cigarettes during the 1929 Easter Parade in New York City. The cigarettes were coined “torches of freedom” and symbolized the advancement of women’s rights in the U.S.

On youth tobacco use and fundamental rights:

“Young smokers have been a critical factor in the growth and decline in every major brand and company over the last 50 years. They will continue to be just as important to brands/companies in the future for two simple reasons: The renewal of the market stems almost entirely from 18-year-old smokers. No more than 5 percent of smokers start after age 24. [And] the brand loyalty of 18-year-old smokers far outweighs any tendency to switch with age. … Brands/companies which fail to attract their fair share of younger adult smokers face an uphill battle.” — R.J. Reynolds Tobacco Company report “Young Adult Smokers: Strategies and Opportunities,” 1984.

We got up and said nicotine addiction is a pediatric disease, with 3,000 children beginning to smoke every day, and 1,000 will go on to die. That’s an issue about free will. It was an issue about choice.