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Is the FDA laying the groundwork for another unnecessary regulatory initiative?

Posted By Dennis Whitfield On 5:29 PM 07/20/2010 In | 2 Comments

One of the consistent hallmarks of the Obama administration is the effort to use regulatory agencies to go beyond what even the current Congress is willing to pass in the way of regulatory legislation.  The Food and Drug Administration (FDA) is only the latest example.  Americans are constantly facing the challenge of widespread and needless interventions into everyday life.  But where products are legal, and where there is a lack of clear-cut, unequivocal biological science indicating a negative impact on health, the federal government should not dictate behavior to the American people.

Yet that is exactly where the FDA appears headed.

Recently, many national conservative groups – led by the American Conservative Union – wrote the FDA to call into question that agencies’ examination of menthol cigarettes.  By many outward appearances, the FDA has established a one-track process that could lead to an edict to ban menthol cigarettes.

That conclusion seems apparent after looking at the way the FDA has structured its menthol review.  The first step rests with a scientific advisory committee that will make a recommendation to the FDA on whether menthol cigarettes should be treated differently.  It is a panel that should, by all rights, look at clear biological science – and nothing else.

Yet, so far, this committee appears to have begun the examination with the preconceived goal of prohibiting cigarettes, a step the FDA is specifically barred from seeking under the new tobacco regulation law.  One can reach that conclusion simply by analyzing members of the advisory committee.  At least two members of TPSAC have unambiguously clear financial conflicts through their work on smoking cessation products that would financially benefit if menthol cigarettes were to be banned.

Like many regulatory proceedings, the issue of whether to ban menthol cigarettes concerns questions of freedom and responsibility on the one hand and, on the other hand, the use of government force to compel preferred behavior. On that spectrum, the conclusion is obvious:  The government does not have the right to compel preferred behavior.

One does not have to maintain that tobacco use is a good thing to believe that the use of it and other legal products should be determined by the individual.  The integrity of science-based regulatory decisions demands that the FDA process not be façade for a foregone conclusion regarding menthol in cigarettes.   America does not need another unnecessary regulatory initiative that diminishes consumer freedom and personal choice.

Dennis Whitfield is the Executive Vice President of The American Conservative Union.


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