Butt Out

TOBACCO CONTROL AND THOUGHT CONTROL

The great judge Learned Hand once said, "The spirit of liberty is the
spirit which is not too sure that it is right." If so, the tobacco
regulation bill recently passed by Congress indicates that the spirit
of liberty is even scarcer than usual in the halls of government.

What motivates advocates of stricter tobacco regulation is the
unassailable assurance that they are not only completely right but
that their opponents are a) wrong and b) evil. This invigorating
certitude makes it possible to justify almost anything that punishes
cigarette companies, even if it does no actual good -- or does actual
harm.One of the main purposes of the new law is to reduce the number
of smokers in the name of improving "public health." This is a
skillful use of language to confuse rather than enlighten.

An individual decision to take up cigarettes is a private event, not a
public one, and its health effects are almost entirely confined to the
individual making the choice. Swine flu warrants government
intervention because it is transmitted to people without their
consent. Not so with tobacco addiction.

That's not the only Orwellian touch in this measure. It is called the
Family Smoking Prevention and Tobacco Control Act, which raises the
obvious question: What does "family" have to do with it? Answer:
nothing, but doesn't it sound sweet?

Like many intrusive government actions, this law is supposed to
protect children. That's the pretext for telling tobacco companies, in
exhaustive detail, how and where they can communicate with consumers,
actual and potential -- allegedly to prevent the contamination of
young minds.

So: Cigarette-makers are forbidden to use color in ads in any
publication whose readership is less than 85 percent adult. They are
barred from using music in audio ads. They are not allowed to use
pictures in video ads. They may not put product names on race cars,
lighters, caps or T-shirts. From all this, you almost forget the
fleeting passage in the Constitution that says "Congress shall make
no law ... abridging the freedom of speech."

When it gets in a mood to regulate, Congress doesn't like to trouble
itself with nuisances like the 1st Amendment. In 2001, the U.S.
Supreme Court ruled it was unconstitutional for Massachusetts to ban
outdoor ads within 1,000 feet of any schools and playgrounds. So what
does this law do? It bans outdoor ads within 1,000 feet of schools and
playgrounds.

The court said the Massachusetts law was intolerable because it choked
off communication about a legal activity. "In some geographical
areas," complained Justice Sandra Day O'Connor, "these regulations
would constitute nearly a complete ban on the communication of
truthful information about smokeless tobacco and cigars to adult consumers."

But to anti-smoking zealots, that effect is not a bug but a feature.
The only problem they have with imposing "nearly a complete ban" is
the "nearly" part.

The crackdown on magazine ads is supposed to foil a dastardly plot to
enslave middle-schoolers to lifelong nicotine addiction.

In the 1998 legal settlement between states and the tobacco industry,
cigarette-makers agreed not to target adolescents in their
advertising. But since then, reports the Campaign for Tobacco-Free
Kids, tobacco companies have sharply increased outlays on marketing
efforts "that reach and influence kids."

If the point was to recruit new smokers, they've wasted their money.
Students in middle school and high school are 44 percent less likely
to try cigarettes today than they were in 1998. Only 6.4 percent of
teens smoke every day, less than half as many as before.

The Campaign for Tobacco-Free Kids says "cigarettes that are the most
popular among kids are those that are also heavily advertised." But
that doesn't prove advertising causes teens to take up the habit. It
only indicates advertising may affect the brand preference of those
who already smoke.

Corporate marketing doesn't explain very much about teen substance
abuse. There are as many kids who use marijuana once a month or more
as there are who smoke cigarettes that often. When was the last time
you saw an ad for cannabis?

Punishing tobacco companies, which provide a legal product that
consumers want, may not achieve anything in terms of reducing teen
smoking or improving health. But in that case, sponsors may take
satisfaction in the sheer pleasure of inflicting that punishment. Rest
assured, they will.