Good guys don’t always win

November 2019

Sophie Madelrieux

In 1970, Congress passed the CSA (Controlled Substances Act), in order to limit the consumption of drugs and other addictive substances. Unfortunately, when writing this decree, a drug is omitted, tobacco. It seems to me crazy and irresponsible, how can they forget the most dangerous and easiest drug to get.

In the 90s, the truth finally comes out – Tobacco is dangerous and addictive. Nicotine is finally recognized as a drug. At the sight of these discoveries, the FDA can now have the tobacco in its line. The report made by the FDA brought to light data on the methods used by manufacturers to control the level of nicotine in their goods. Industry documents obtained by the Agency have clearly shown how tobacco products are intended to “deliver nicotine, a potent drug with a variety of physiological effects1.”

This meant that the tobacco now fell in the FDA’s jurisdictions, their main objective was to limit the incidence of tobacco for the youth, by imposing prohibitions and restrictions on advertising. The FDA’s battle against tobacco’s magnates was hard and not without ambushes. Industry documents and testimony from former employees like Jeffrey Wigand, supported the FDA’s cause. Unfortunately, strong of their means and their power, the giants of Tobacco, especially Brown & Williamson decided to fight the FDA. Brown & Williamson based their actions in justice against the FDA on one thing: Why would the FDA regulates tobacco, when tobacco was never marketed as to have therapeutic benefit?

Furthermore, the FDA’s jurisdiction was aimed at the youth issue, which Brown & Williamson never directly targeted.

It is questionable whether the FDA could ever have regulated the use of tobacco for adults, but if the Agency wanted to leave the matter open, it should have done so in such a way as to make further regulation subject to independent judicial review, for example by framing its initial legal claims in such a way as to prevent the possibility of any actual ban. In fact the challenge behind the Federal Food, Drug and Cosmetic Act, was that if the FDA would have had the jurisdiction to regulate tobacco it would have meant a complete ban because of the harmfulness of the product. A ban that could have never been possible considering the place of the tobacco in the market, the tobacco industry was enormous and its fall would have led to the fall of many others. Such a thing could have never been approved by the supreme court considering the risks.

Furthermore, how can a company commits crimes and stay untouched? Companies such as Brown & Williamson are committing crimes against civils, they sell, market, advertise a drug. Before the revelation made about tobacco, the industry and every tobacco companies were perpetuating organizational crimes, everyone knew the harm of nicotine and the proven addictiveness. But the money generated by the tobacco was enormous and in a money-driven society, what is a small disease when you can gain billion out of it. If now we are aware of the truth how can this industry remain one of the leading industry in the world. We can believe that maybe if the matter would have been taken into account before, tobacco lobbying would not have gained such an important place in our society.

Note 1: David Kessler, A Question of Intent: A Great American Battle with A Deadly Industry 260 (2001)