FDA’s New Rules Against Smoking
2022-05-23 · Guest: Guy Bentley (Reason Foundation) · 51:17
FDA regulatory war on e-cigarettes and vaping
Bob Zadek and Guy Bentley of the Reason Foundation discuss the FDA’s regulatory war on e-cigarettes and vaping. They explore the history of vaping as a harm-reduction tool, the unintended consequences of prohibition, and the “Baptists and Bootleggers” alliance between big tobacco and anti-smoking groups that stifles competition and harms public health.
Topics: FDA, vaping, e-cigarettes, harm reduction, prohibition, menthol ban, public health, Reason Foundation, nicotine
Speakers: Bob Zadek, Guy Bentley
Introduction: The Question of Grover Norquist and Al Sharpton [00:00]
Bob Zadek: Hello, everyone. Welcome to The Bob Zadek Show, the longest-running libertarian show on all of radio. Thank you so much for listening to us this morning. This morning, we dare to ask the question: Can any of you out there answer the following question? What do Grover Norquist and Al Sharpton have in common? On what subjects might they vote the same? And I dare say, include myself as well.
You will find out the answer to this question, as well as the question: What is the monumental government policy that is always wrong and always tried? What is the policy that took a constitutional amendment to make the first mistake and a constitutional amendment to correct that mistake? And that same mistake, which we will be referring to, is the mistake that is happening today in America.
We are going to be discussing a subject which will be very much in the news, very much in the Congress, very much in the executive branch, and will affect almost all of us who listen to this show. And all of us know that the policy I am referring to you cannot succeed. We are talking about the subject of e-cigarettes. E-cigarettes are, of course, not cigarettes. It is an electronic device. It is a device designed to give people a few moments of somewhat innocent pleasure. And it is a device, like many other experiences we have where we seek a little bit of pleasure, the government, grouch that they are, is in part in the business of finding a way of either depriving us of this innocent pleasure that hurts no one else, or if it can’t deprive us of the pleasure, it will tax that pleasure and eliminate its use.
That is the topic this morning of e-cigarettes. We will examine the government’s irrational approach, almost hysterical approach to the innocent activity of the use of e-cigarettes. To help us understand this issue and how the government once again is seeking to limit, if not totally deprive us of certain of our individual freedoms, I’m happy to welcome to the show for the first time, but by no means the last, Guy Bentley. Guy is with the Reason Foundation. Guy handles consumer freedom research for the Reason Foundation. He has written and studied extensively on this subject of e-cigarettes. And since this is about to hit the headlines, Guy is the perfect guest for us to spend an hour with this afternoon. Guy, welcome to the show.
And e-cigarettes—is there some pending legislation that’s about to hit the statute books that will affect many, many Americans who enjoy the simple, innocent pleasure of using e-cigarettes? The verb has become “vaping.” We’ll explain all of that. So, Guy, tell us the headlines of what’s going on with e-cigarettes, and then we’ll do a deep dive into the wrongheaded approach of our government.
Guy Bentley: Well, Bob, thanks so much for having me. I really appreciate being on the show. And exactly as you say, the e-cigarette issue is really heating up, both at the federal level at Congress and the FDA, and also the state level, where there’s a whole host of bills that have been introduced, many of which I’m happy to say have been defeated this legislative session for all kinds of prohibitions that I can go into later. But at the federal level, what we see is right now there’s some legislation in Congress to massively increase the taxes on e-cigarettes.
What is an E-Cigarette? [05:25]
Bob Zadek: Well, Guy, let’s just back up for a moment, just before we get into e-cigarettes, for anybody out there who may not fully understand what exactly an e-cigarette is. Because we know what it is not—it’s not a cigarette. So tell us about this device. And actually, what it is will become important during this show, because that will tell us which entity regulates it and how do they get to regulate it. So what it is will become important. But first, tell us about the device itself. What is an e-cigarette, and if you will, what is it not?
Guy Bentley: Absolutely. So an e-cigarette—we first know these modern generations of e-cigarettes that originally were invented, the first of its kind in China in the early 2000s, but now have become much more sophisticated with hundreds of different companies and many thousands of brands, flavors, and device types. But the essence of an e-cigarette is that it’s a device that heats and aerosolizes a liquid solution, mostly of nicotine, propylene glycol, and some flavorings. And what that is, is that there’s no tobacco used in this. No leaf tobacco whatsoever. And there’s no combustion. So there’s nothing like with a cigarette where you light it and set it on fire and inhale smoke. What this is, is aerosolizing a liquid solution.
And why that’s so important is because most people are under the misapprehension that nicotine is what causes cancer amongst smokers and all the host of smoking-related diseases. But that’s not actually the case at all. It’s why, for instance, you know, if you use nicotine pouches or gum, you’re not going to get lung cancer. It’s not nicotine that is the problem with cigarettes. It’s the lighting something on fire and inhaling smoke. Once you get rid of the process of burning and translate it into something much safer, that means you slash the amount of toxic chemicals you’re breathing into your body by a huge amount. It’s estimated that e-cigarettes are unlikely to pose 5% of the risks of cigarettes. And to be honest, that figure’s probably on the top end. So that’s in essence what they are and what they’re not.
Bob Zadek: So an e-cigarette is a device, mechanical, if you will, chemical in sorts, device that simply delivers a chemical compound, nicotine, into the human body. It’s a spoon. It’s whatever you want to get nicotine from the outside world into your body. And nicotine in and of itself is not illegal. It’s not cocaine. It’s not illegal. It’s not a poison. It’s a substance that is allowed to find its way into the human body. And if a human gets nicotine from the outside world into the body of the human, no one has been harmed. No one other than, perhaps—we’ll get to that maybe—the human imbibing it. But just like alcohol, the outside world is not harmed if a human takes alcohol and moves it from the outside world into one’s body. And putting aside getting drunk and driving, nicotine does none of that. So there’s no externality involved where other people may be harmed by your abuse of alcohol. The outside world doesn’t get harmed by your abuse of nicotine, per se. So there’s none of that. So we have a mechanical device that gets nicotine from the outside world into the body of the user. Okay, so far so good.
The History and Purpose of Vaping [10:13]
Bob Zadek: Now, why was there a perceived—I don’t even want to say need, but a demand for a device to get nicotine into the body? What need or desire was being filled, and why were e-cigarettes at first invented?
Guy Bentley: That’s a really great question, Bob. And it’s a really fascinating story, the history and invention of the modern-day e-cigarette. It’s also just a great example of basically free market innovation in promoting public health, actually. And the original e-cigarette, invented in the early 2000s by a Chinese chemist called Hon Lik, who was a very heavy smoker himself and his father had died of smoking-related diseases, and he could see that he himself was going to go the same way. He tried all the patches, the gums, the nicotine replacement therapies that we’re familiar with, but unfortunately for about 95% of people plus who try them, they unfortunately don’t get people off cigarettes. It’s great that they work for some people, but unfortunately for the vast majority they don’t.
So he decided that he was going to build his own mousetrap, essentially. And by combining a bit of electronics and a bit of chemistry, invented this early sort of prototype of an e-cigarette, weaned himself off of combustible cigarettes. And that release of that product just sparked an innovation revolution and arms race with then filtering through message boards and the internet throughout the world, and then companies beginning to invest and entrepreneurs starting businesses, improving all the times these products, making them more acceptable to consumers, better and easier to compete with regular cigarettes. And at first, you know, these were not welcomed by either the pharmaceutical industry, which has an interest in selling nicotine replacement therapy, and indeed the traditional tobacco industry, who saw their profits threatened by people getting off traditional cigarettes. That’s all much changed, but that’s the early history, and it’s a really great story.
Bob Zadek: So therefore, what you have just explained to us, Guy, is that e-cigarettes were invented to improve public health. It was not done to destroy or harm anybody. Quite the opposite. It was designed to fix an acknowledged worldwide problem that smoking tobacco kills people. And this was designed as the perfect cure. It was designed to improve public health without depriving the user of a lot of the pleasure one got from cigarettes. So there was not going to be what might be called withdrawal symptoms. You weren’t going to make people unhappy or sick or grouchy by depriving them of something they enjoyed. And the argument that “we’re taking this harmful activity, smoking, away from you because it’s good for you and you’re not strong enough to do it for yourself.” So it is kind of the perfect cure.
The “Quit or Die” Mentality in Public Health [16:12]
Bob Zadek: Unlike—and we’re going to get to this quite a bit—unlike the perception in the early 20th century that alcohol was bad per se. Well, let’s fix the evil of alcohol by criminalizing it, and let’s invent organized crime because we’re not happy with small-time crime. So let’s invent organized crime, and at the same time we will get rid of this harmful alcohol. Unlike that experience, which we will visit during the course of this hour, unlike that experience, we are not creating a black market, not creating an underground economy, not depriving people of a pleasure, and yet, and yet, we are curing a public health problem. So therefore, talk about harm reduction that works—here we have it. Okay, so e-cigarettes are invented, although they are not cigarettes. They are invented to allow people to put into their body nicotine, which they want to do, which is not per se harmless, but in a way that eliminates the harm of tar and other burning chemicals that will harm you.
So now I’m going to say, loaded question, kind of obvious: Well, what’s wrong? Who in their—now, you have pointed out there were powerful economic interests who were being threatened by this new product. Creative destruction we would call it, as a product that is more bad than good is threatened by a product that has no bad, only good. So that product starts to crowd out the other products. So it’s the perfect world, Guy. What went wrong? Why are you and I spending a perfectly lovely afternoon talking about something which is the perfect harm reduction strategy for the evils of tobacco smoking? What went wrong with that product, or with how that product is perceived in America and in the world?
Guy Bentley: Yeah, this is where the story gets depressing. Because as you point out, the invention of e-cigarettes—and there’s been a host of other products sort of similar that have been invented since then—this is really a great solution. As you point out, you can have thousands of companies employing tens of thousands of people, making billions of dollars in revenue by making it easier and funner for people to quit smoking. I mean, that is just a, you know, win-win-win.
But unfortunately, I think e-cigarettes ran, particularly in the United States—not so in the United Kingdom, we could perhaps get to that later—but in the United States, when they started coming onto the market, faced a lot of opposition from what we would call the traditional anti-smoking movement. Because many of us for a long time have thought that the real aims of the anti-smoking movement wasn’t just the elimination of smoking, of smoking cigarettes, but of eliminating recreational nicotine as a drug, which, you know, I mean, nicotine has a similar risk profile to caffeine when it’s divorced from cigarette smoke. But there is a whole, you know, massive industry of the anti-smoking movement, with a lot of it very heavily funded by Michael Bloomberg, that is trying to regulate and tax out of existence not just cigarettes, but much safer alternatives to cigarettes. That approach, I think we would sort of call it the mentality of, you know, “quit or die.” You know, either quit nicotine entirely or continue smoking cigarettes until you die. That’s essentially the sort of abstinence-only prohibitionist approach of the mainstream tobacco control public health movement in the United States.
Fortunately, they have not entirely won the day. We can go into what the current regulation is for e-cigarettes in a moment and how the FDA came to regulate it thanks to a law passed during the Obama administration. But the public health movement has become interestingly split on this question. Because there are many people in public health who are not just for a nicotine-free prohibitionist society at all costs and wanting to control other people’s lives. There are a lot of people in public health who are genuinely interested in trying to get rid of smoking, yes, but just smoking, because smoking is what causes harm, not nicotine. And they see e-cigarettes and safer nicotine alternatives as exactly as you put it, as a great alternative solution. We don’t need to continually tax smokers, who are often some of the poorest people in society, therefore cigarette taxes being very, very regressive. We don’t need to just keep bullying smokers. We can use harm reduction strategies that we’ve used, for instance, in sexual health, where condoms are a harm reduction strategy. With opioids and the drug crisis that hopefully is going to be seeing more of a harm reduction approach than a prohibitionist approach. So there is a large group of and growing group in public health who are trying to be on the side of the angels on this and arguing with often with some of their mentors, colleagues, and friends who they’ve been working with for many decades to get rid of smoking. And now there is this fissure in public health where I never thought I as a libertarian would be on the same side as many of the people who have been formerly working for a lot of these prohibitionist organizations. But a lot of them agree with us and agree that, no, what we want is people, if they want to use nicotine, they’re going to use nicotine, and we want them to do it as safely as possible. And there’s where the division lies, and it’s still an active fight.
The Case Against Nicotine [19:56]
Bob Zadek: Now, those—the Bloomberg group—what make the best case—this is a challenge, Guy—make, if you can, for the harm of nicotine. At its worst, what is the danger of nicotine?
Guy Bentley: Yeah, to give the sort of steel man their argument, this is what a lot of those groups, including, you know, Vital Strategies, Campaign for Tobacco-Free Kids, they would argue that, one, nicotine is addictive in and of itself and promotes addiction. That nicotine in some animal studies suggests that it might harm the adolescent developing brain. So kids who start either vaping nicotine or smoking cigarettes could suffer some kind of neurological damage in terms of shorter attention spans or less ability to defer gratification, so on, that there’s some suggestive evidence that there might be a threat to youth with nicotine. And also that nicotine and nicotine addiction might facilitate other addictions. So, for instance, somebody might become addicted to vaping and then, you know, this might act as a sort of gateway into other substance abuse issues like marijuana, alcohol, and so on. So I put it into those three baskets: it’s addiction, you find yourself addicted to a substance where you don’t want to be; there might be a particularly a threat to youth and the developing adolescent brain; and three, that it might pose a gateway into even more harmful substances. I’m happy to dismantle each one of those claims, but those would be the three big ones that you will consistently hear as to why nicotine is not like caffeine, for instance. It’s not like having a cup of coffee in the morning.
Bob Zadek: In other words, there’s a danger that the misuse of the product under certain circumstances, if the planets are aligned right, it may, may, may ultimately affect the development of younger people, and therefore they are doomed to a tragic life. Sort of like selling lottery tickets in the convenience store. Sort of like having alcohol available in the supermarket. Sort of like cigarettes, which are not illegal and which are not banned. Sort of like gambling. Sort of like so many temptations that we do our best as parents and as guardians and as citizens to make sure that people who are more susceptible are instructed to avoid things that are bad. So all of these other temptations, all of these other—I don’t consider them, but others do—all of these other vices are legal, but we do the best we can as a society through parenting and information to hope that people don’t misuse any product, service, or activity.
The Failure of Prohibition [24:30]
Bob Zadek: And yet, when it comes to e-cigarettes, where as anybody listening to your explanation would have to conclude, “Okay, I understand that argument,” but one would have to say that’s a bit tenuous. That chain of harm is sort of strained, far-fetched, not likely to happen, and part of the risks of opening your eyes in the morning. When you open your eyes in the morning, you expose yourself to risk once you crawl out from under the sheets. You’re at risk, bad things can happen to you, and it is hoped that society would set forth standards of behavior to help us avoid it. But yet with e-cigarettes, there is this temptation, this urge to prohibit it.
Now, we have experienced in our country prohibition. In prohibition, it was the same approach: a perceived harm from the misuse of an otherwise lawful product. Therefore, rather than simply say people are free to do what they wish with themselves—freedom is a word that will pop up quite a bit during the course of our discussion—it was felt as an experiment, required a constitutional amendment, let’s on a national basis prohibit alcohol. And we know what happened. All that happened was the desire existed, it was now illegal, an activity that used to be lawful was sent underground, and therefore it became illegal, the black market, criminals made lots of money, organized crime was invented, or if not invented, became a big-time activity as a result of prohibition. And we ultimately said, “A failed experiment.” Not to learn from our mistakes, we then went ahead and did the same thing with narcotics. Narcotics were for the first 125 years of our country all legal. It may not have been approved of, it was legal. Then for reasons that were wholly irrational, narcotics became illegal. The drug wars arose in earnest, compliments of President Nixon, supported by President Reagan and others after them. And we know what a failure that is. And yet we don’t learn.
FDA Regulation and the Black Market [27:03]
Bob Zadek: So do you see, Guy, with e-cigarettes, is there a reasonable parallel can be learned from those experiences, what we’re about to do with e-cigarettes? And if the prohibition comes, what do you think is likely to be the societal result of the prohibiting, the banning, or hyper-regulation, which is tantamount to banning, of these products?
Guy Bentley: Yeah, I think it’s really great you make the distinction between a sort of outright generalized prohibition and then a sort of hyper-regulation which in effect has a similar result to prohibition. So just to give the listener background on how e-cigarettes are regulated, the current state of them. So e-cigarettes—the main attack or call to ban e-cigarettes is to ban what we would call flavored e-cigarettes. So these are e-cigarettes who come in flavors other than tobacco. Because it’s alleged that these products are overwhelmingly appealing to kids and are overwhelmingly the choice of kids who decide to vape. That’s totally true. Most kids who vape, vape flavored products. But the flip side of that is most adults who vape, vape flavored products. Tobacco-flavored vapes are not very popular amongst people using vaping to quit smoking, because they’re trying to get away from a tobacco flavor. I know this myself. I quit smoking thanks to vaping, and so did my mother, actually, and my fiancee as well. And most people opt for non-tobacco flavors.
So what’s happened is that several states have completely banned flavored e-cigarettes, but many have tried to do the same but fortunately have been defeated. But because the Food and Drug Administration regulates e-cigarettes, e-cigarette manufacturers have to go through a huge regulatory process to get their products approved. I mean, this thing is costs millions and millions of dollars, thousands and thousands of hours in lawyering, that usually only the biggest companies can comply with. And right now, the biggest companies that can comply with those are traditional cigarette companies, Big Tobacco companies, who have their own lines of e-cigarettes now because they’ve been forced to compete with the independent market. They can afford to comply with the FDA regulation. Many of the small entrepreneurs and businesses, you know, that you’ll see servicing your local vape shop, don’t have the money. And if they do, they have to band together and really try and battle this regulatory process.
So what we’ve seen is that I think something around more than 5 million e-cigarettes have been denied, and their various flavors and so on have been denied right of sale by the FDA. So about 98% of e-cigarettes in this country are technically illegal already. And there’s a few hundred thousand applications that are out there at the moment. The FDA has only authorized a handful of e-cigarettes, and they’re all in tobacco flavors. They haven’t authorized a single flavored e-cigarette yet. And unfortunately, it looks like they might not authorize any flavored e-cigarettes, which in essence would be prohibition. So that’s just the roundabout way of, you know, how the prohibition is actually happening. We’re hoping still to have some wins and fights on that front.
But you point out the traditional problems with prohibition. What’s going to happen if we keep banning e-cigarettes, denying more and more companies the right to sell e-cigarettes, is that, one, people who are currently using those products are going to go back to smoking cigarettes. Which is like—that you could not have a worse public health outcome than somebody who’s already switched to vaping an e-cigarette going back to smoking. Two, you’re going to have illegal vapes imported mostly from China, and also people making their own e-liquid mixture in off-label illegal markets, which will not be—they will not have correct product standards, they won’t be subject to thorough inspection, there will be no accountability if the product malfunctions or something bad happens with the product, you’re not going to be able to take this illegal manufacturer to court. You know, there’s going to be a whole host of problems when you’re making the safer product illegal. And cigarettes are going to be on the shelves just as before, perhaps with the exception of menthol in a few years, but that’s another part of the discussion. But combustible cigarettes, Marlboro Lights, Marlboro Reds, Camels—those are all going to be on the shelf, but your local vape store, that’s going to be bankrupted if the FDA gets its way and keeps hurtling towards this sort of death by regulation.
Bob Zadek: And as e-cigarettes are forced into the black market, that means that, as you pointed out, but I want to make sure the audience absorbed what you said—it was quite important—once you send a product into the black market, you lose control over the quality. And there’s no warranty in the black market. There’s no product liability insurance, and there is zero regulation. As if the only two alternatives are regulation to oblivion or zero regulation. There’s no modest regulation, just so you know it has passed some modest test that somebody who is believed to be objective has said, “This is okay, this is just an e-cigarette and it is manufactured pursuant to certain standards.” So by—there comes a point, a tipping point, when products are sent into the black market, we lose the tax revenue that would have come from it. Think of truckloads of cigarettes coming from untaxed Virginia to overly taxed New York and people in trench coats in underground garages passing each other cigarettes that are untaxed. That’s what happens because, as we learned from prohibition, as we learned from drugs, and as we’re about to learn from e-cigarettes, once you ban a product that is in demand, rather than apply reasonable regulation and reasonable taxation, you send it underground and you deny the users any governmental protection whatever, and you deny society any reasonable level of taxation, all only for the benefit of saying, “We did our best, we prohibited another bad product.”
The Baptists and the Bootleggers [34:51]
Bob Zadek: And the harm—we talked about harm reduction. Now, Guy, I want to remind our audience that the need that e-cigarettes fill by being created and being sold are to help, as you have done, to help people stop smoking. And I don’t believe—and you can help me, Guy—no other product has been quite so successful without compromising freedom as helping people get rid of smoking. All the other attempts, all the other methods were unsuccessful. This is successful, and this is the one that’s gotten the ire of the regulatory public.
Guy Bentley: That’s exactly right. I’d say because there’s been two major things that are getting smoking rates down and one minor thing. One is the fact that people just know smoking is bad for you from a young age. So ever since we had the Surgeon General’s report in the 1960s, smoking rates have been going down because fewer young people started smoking because when you were younger you were taught about the health risks of combustible cigarettes and fewer people start smoking to begin with. And that obviously compounds over time the more and more young people who stop starting. Another minor point is cigarette taxes, which do drive down cigarette consumption to an extent, but they’re far less effective than they’re often claimed to be. One reason is that cigarettes are what we would call an inelastic good, in that consumers are very dedicated to that product and it takes an unusually high price for them to either reduce their consumption or give up smoking entirely. So cigarette taxes have some effect but are generally ineffective compared to education.
But what has been really effective is e-cigarettes. And I’ll give two contrasting models here. My home country, the United Kingdom, massively embraced e-cigarettes in the late noughties and early 2010s. The government initially was going to ban these products, but a unit inside Number 10 Downing Street actually advised the Prime Minister, “These things seem to be less harmful than cigarettes. Let’s actually see if we can encourage people to switch to these.” And it became—and then the UK’s public health arms and establishment started researching these products and found that they were far safer and very effective in getting people to quit smoking. So the UK now officially promotes harm reduction in terms of its public health response. There are even vape shops in British hospitals. That’s how much vaping is embraced as a tool of harm reduction in the UK.
But contrast that to the United States where in around 2009, Congress passed something called the Tobacco Control Act under the Obama administration. E-cigarettes weren’t really on the radar then, but it was a huge piece of legislation. And what it did was it made the FDA responsible for the regulation of all tobacco products. And also, that legislation erected this enormous regulatory barrier that then new products would have to go through. And ironically, of course, who were the two groups who worked most closely on this legislation to get it passed? The Campaign for Tobacco-Free Kids and Philip Morris. These were the two groups who both pushed for FDA regulation of tobacco products. The world’s biggest cigarette company and the United States’ biggest anti-smoking group. This is what we would call an alliance of the Baptists and the bootleggers, to go back to prohibition, where the Baptists who were against alcohol wanted it prohibited, but the bootleggers also wanted it prohibited so they could make money off of prohibition. Philip Morris thought that it could comply with FDA regulation and hurt its competitors.
Now, why this was important for e-cigarettes is that e-cigarettes were deemed tobacco products in 2016, so were brought under FDA regulation. And FDA is obligated to look at the costs and benefits of each e-cigarette application that tries to pass through its process. They have to determine whether they are beneficial to public health as a whole. But that standard includes users and non-users, which is a completely irrational standard. So e-cigarettes have to pass a huge burden to even get approved for sale. And also, they are forbidden from informing the public that they’re safer unless they pass another huge regulatory process called the modified risk tobacco product application. So we live in a really, you know, dangerous situation where most of the public thinks e-cigarettes are just as bad or worse than traditional cigarettes, and where it’s near to impossible for most e-cigarettes to come to the market thanks to a regulation or a congressional law that was supported by the world’s biggest cigarette company and also the group that claims that it wants to prevent America’s youth from starting smoking or vaping to begin with. It’s a—I don’t think there’s ever been a more sinister alliance in the history of DC swampland than Philip Morris and the Campaign for Tobacco-Free Kids that is now harming the e-cigarette revolution so much.
The Racial Component: Menthol Bans [39:31]
Bob Zadek: I feel compelled to introduce a related aspect of this discussion, which is the racial component. It’s kind of unpleasant, it’s kind of ugly, and it has a history. The history of drug regulation in our country really started with something called the Harrison Act, I believe in around 1913. And it was the first federal law to regulate what are now called controlled substances—drugs, if you will, narcotics. It was directed at the Chinese, who were then in great disfavor in this country. There was huge bias against Chinese, specifically Asians in general, who were users of opium and they went to opium dens—remember those phrases? And the related subject of attack were Blacks, because Blacks, it was feared, used marijuana. And the New York Times would publish articles—you can find these quotes online—the New York Times worried in news articles, not op-eds, that marijuana made Blacks better pistol shots and made them sex-crazed. So there was an embarrassingly infuriating but profound racial element.
The same goes on throughout a lot of regulation of activities in this country where the users of the activity, the performers, were racial minorities. And now fast forward to the related subject of flavored cigarettes and more directly, flavored e-cigarettes. Tell us, if you will, just to bring this all full circle, what’s going on with menthol cigarettes and the relationship between that and flavored e-cigarettes. And tell us if I am correct, the racial or the apparent racial component. And I’ll just, Guy, before you respond, I’ll remind our audience that remember when cigarettes were in the hands of every white actor and actress in American movies? Cigarettes were then a status symbol and were not regulated or limited. When the white middle and upper class found out that cigarettes were unhealthy and they stopped using it, that’s when cigarette regulation became more strong and more strenuous because the upper white population stopped using it. Now apply what I have just said, Guy, if there is an application to what is going on with e-cigarettes.
Guy Bentley: Yeah, absolutely. Listeners may have seen a couple weeks ago the Food and Drug Administration put out a proposed rule to ban the sale of menthol cigarettes and also flavored small cigars as well. But the main prohibition is against menthol cigarettes. And I think as you sort of allude to in your lead-up, this is so reminiscent of prohibitions we’ve had in the past. This one particularly reminds me of the sentencing discrepancies we saw between crack and powder cocaine, both of which are cocaine, both of which are addictive and potentially dangerous drugs, but one was disproportionately used by Black Americans and the other disproportionately used by whites, and one was treated much more harshly than the other.
So the FDA wants to ban menthol cigarettes because they make a few claims on this. They say that menthol cigarettes are more appealing to youth than regular cigarettes, than non-menthol cigarettes. They say they’re harder to quit and easier to start. And they’re disproportionately used by African Americans and that leads to health disparities. Now, the problem with this reasoning is that, one, they’re not more appealing to youth. That’s just factually inaccurate. In fact, the latest data we show is that more than 60% of kids who smoke—I mean, very few kids smoke these days, it’s around 1.5% of kids, but—and that’s once every 30 days. But out of that 1.5%, the vast majority use non-menthol cigarettes. And in fact, we conducted a study a couple years ago that found that states with the highest menthol consumption actually have the lowest youth smoking rates. So that’s just not correct either.
The idea that they’re harder to quit is also inaccurate. Menthol smokers actually smoke fewer cigarettes per day. And a new study just came out from Vanderbilt University, ironically just a week before FDA announced its potential prohibition, showing that there’s no difference in quit rates between menthol and non-menthol smokers, and there’s no difference in quit rates between African American and white smokers. So lastly, on the point that the FDA says is an equity point, I think it is kind of gross for FDA to cloak a prohibition in the language of equity. I think there’s something particularly slimy about that. And what they’re sort of not paying attention to here is that there’s no difference in the smoking rate between Black adults and white adults in terms of who smokes. They smoke at similar rates, so one isn’t smoking more than the other. And actually, African American youth are less likely to smoke than either whites or Hispanics. So, you know, this is a really sinister targeted prohibition against a minority of a minority, cloaked in the language of equity, but it’s completely disingenuous.
And that’s why we see, as you said at the top of the hour, we see both people like Grover Norquist at Americans for Tax Reform objecting on libertarian grounds, public health grounds, because now we have alternatives like e-cigarettes, we don’t need prohibition to get the smoking rate down. But also people like Al Sharpton, the American Civil Liberties Union has spoken out against this because, as they’ve rightly pointed out, prohibitions whenever they’re introduced are disproportionately targeted at minorities. And what law enforcement will do in this regard is use the illicit sale of menthol cigarettes as a sort of excuse or pretext to investigate suspected individuals for other pretexts like guns, drugs, other things like that. There will be more police interactions in the wake of menthol prohibition. And because African Americans, even though they don’t smoke more than whites, disproportionately choose menthol cigarettes, if you ban menthol cigarettes, then necessarily the illicit market will be concentrated in African American communities and therefore policing will be concentrated in African American communities. So both on the science and also on the criminal justice grounds, it’s just a disastrous idea.
Bob Zadek: And how offensive it is that the perceived elites are not content with putting a warning label on cigarettes. When it comes to menthol cigarettes, they say, “No, the warning label is not enough because it threatens the Black inner-city development.” Now, the implicit message that is so offensive to me is that inner-city Blacks are either not likely to read the side of the cigarette pack or cannot read it. How offensive can you get? Therefore, we cannot trust them to do what’s best for them by simply informing them. We must prevent them and save them from themselves. It is so crassly, so crassly offensively racist.
Policy Recommendations for Vaping [48:13]
Bob Zadek: Now, Guy, as we close, what would be your message, your wish, your hope as to a policy, if a policy is needed—and we only have a few moments—for e-cigarettes, other than perhaps basic regulation? Is anything else needed, or is that enough to allow those who wish to be free of smoking be given the one tool that has been the most effective?
Guy Bentley: That’s a great point. And yeah, what I would say is that what we need is to change the way e-cigarettes are regulated. We need to make it easier for companies to apply and get authorization from FDA to sell e-cigarette products. And second, the FDA needs to actively tell the public that e-cigarettes are safer than combustible cigarettes. They do so but in a very roundabout way that’s very limited, it’s not usually for public consumption, they don’t promote e-cigarettes as a way for people to get off of cigarettes. So we have only 2% of people in America think e-cigarettes are much less harmful than combustible cigarettes. That’s a misinformation disaster if there ever was one.
So, one, change regulation to make it easier for products to come to market. Two, just inform people about the science, about the relative risks, and let them make their own decision. That’s all you need. You don’t need to subsidize e-cigarette companies, you don’t need to do anything in favor of the e-cigarette industry. Just let it be a fair, level playing field, let people make their own choices, and you’ll see public health improve as a result. You don’t need prohibition when you can have healthier choices available to consumers. We see it working in other parts of the world. There’s no reason it can’t work here too.
Bob Zadek: Our guest has been Guy Bentley. Guy is the Director of Consumer Freedom Research at the Reason Foundation. Guy’s email address is guy.bentley@reason.org. Be sure to follow Guy’s work and the work of all the good folks at Reason Foundation, the publishers of Reason magazine. Thank you so much, and Guy, let’s hope that those in power listened at least to the last minute of our show and they get the message. Thanks so much to my friends out there. Thanks to Guy for sharing an hour of his time this afternoon. Have a nice weekend, everybody.