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Big Tobacco finally meeting its match


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POSTED: Wednesday, June 24, 2009

After years of relying on Hawaii and other states to take the lead in combating tobacco, the federal government has entered the battle. A bill signed into law Monday by President Barack Obama gives the Food and Drug Administration regulatory authority over the deadly substance. Combined with various Hawaii laws, the power could contribute greatly to bringing Big Tobacco under control.

The new law, which takes effect in a year, will not create a new era of prohibition but could lead to a reduction in nicotine levels. It gives the FDA authority to regulate what cigarettes contain and restrict misleading labels such as “;light”; and “;low tar.”; It also allows the agency to ban candy flavors such as R.J. Reynolds' “;Kauai Kolada”; and “;Hawaiian Hints of Pineapple and Coconut”; that caused a stir in Hawaii five years ago.

The U.S. Supreme Court ruled in 2000 that the FDA lacked congressional authority over cigarettes, and Congress has considered since then giving it that power. Philip Morris, now renamed Altria, played a major role of achieving that authority by supporting the bill, while the Campaign for Tobacco-Free Kids led the lobbying effort to combat an addiction that kills some 400,000 people a year.

The enactment comes less than three months after the federal tax on cigarettes went from 39 cents to $1.01 a pack. Hawaii's state tax on cigarettes will rise by 40 cents a pack next Wednesday, another 40 cents in July 2010 and an additional 40 cents in July 2011.

The new federal law is expected to reduce youth smoking by 11 percent and adult smoking by 2 percent over the next decade, according to the Congressional Budget Office. The price increases could have an even greater effect: The Centers for Disease Control and Prevention estimates that each 10 percent increase in prices reduces consumption by 3 percent to 5 percent and discourages youths from joining the fifth of American society that is addicted.

Tobacco companies are expected to challenge the new law as infringing on their free-speech rights, but companies are denied full First Amendment protection. In a section that should have little or no effect on billboard-free Hawaii, the law bans outdoor advertising of cigarettes within 1,000 feet of schools and playgrounds. The U.S. Supreme Court in 2001 struck down a similar state prohibition in Massachusetts.

The law also restricts stores and many forms of print advertising to black-and-white text, which tobacco companies contend will interfere with legitimate communication to adults.

The Supreme Court ruled in 2000 that corporate speech can be restricted only if it advances a “;substantial government interest”; and the rule is “;narrowly tailored”; to achieve that interest. Congress says the interest is in reducing youth smoking, a valid interest if ever there was one.