OPINION: The Feds Don’t Have A Role To Play In Stifling E-Cigarette Advertising


Carrie Wade R Street Institute
Font Size:

A federal regulator on the Federal Communications Commission has weighed in on e-cigarettes, proposing significant federal overreach.

E-cigarettes are the public-health crisis du jour, and FCC Commissioner Jessica Rosenworcel has vowed to take action by banishing e-cigarette advertising from radio and television airwaves. Yet by leveling the marketing playing field between cigarettes and e-cigarettes, the proposed ban not only represents agency overreach, it will likely hurt public health.

As it stands, traditional cigarettes are subject to restrictive advertising regulations — they cannot be advertised outdoors, on public transit, over the airwaves or in much of print media. This ban stems from the Public Health Cigarette Smoking Act, passed in 1969, which banned cigarette advertising under the now-defunct Fairness Doctrine. But these restrictions only apply to cigarettes, small cigars, smokeless tobacco and chewing tobacco. Since e-cigarettes were clearly not in existence in the 1960s, the law does not address them.

Many consider advertising restrictions to be an insult to our right to free speech.

But in the interest of our populace’s health — and with the endorsement of national and international public health agencies as well as a federal appeals court — society has largely accepted far-reaching bans on cigarette advertising as normal. And while Rosenworcel believes that the interests of public health trump any First Amendment concerns, at least one of her colleagues disagrees.

Now that e-cigarettes are here to stay, the debate over proper advertising restrictions is at the forefront of federal regulators’ minds. And, as the regulatory body of broadcast communications, the FCC theoretically has the ability to censor advertisements at will (subject, of course, to the First Amendment and other legal constraints.)

However, the reality is more muddled. In 2009, President Obama signed the Family Smoking Prevention and Tobacco Control Act, which reinstated the Food and Drug Administration’s authority over tobacco product advertising. This arrangement makes sense. Over the years, the FDA has implemented advertising guidelines for nearly every product meant for consumption, which is well within its powers. The power to govern public health interests — even in the advertising realm — should remain with the agency tasked with regulating public health policy, not the one responsible for implementing the nation’s communications law.

Aside from this debate, the fact remains that while advertising bans and other enforcement mechanisms may have helped slow the rate of smoking initiation, many populations still suffer from abysmally high smoking rates. In fact, when compared to the rest of the American population, smoking rates are between two and three times higher for people without postsecondary education, those who are uninsured or on Medicaid, those below the poverty level and those who live in rural areas. And while a ban on e-cigarette advertising might help discourage nonsmokers from taking up vaping, it would also disproportionately harm populations with higher-than-average smoking rates by deterring existing smokers from switching to safer e-cigarettes.

Indeed, the best available science indicates that e-cigarettes are around 95 percent safer than traditional cigarettes. This is because e-cigarettes lack the toxins and combustion process present in their traditional counterparts. Many public health agencies — including Public Health England and the National Academy of Sciences, Engineering, and Medicine — have research to back this claim.

Far from being a problem, then, e-cigarettes likely represent a public health solution. Economic modeling suggests that e-cigarettes are contributing to a more rapid decline in smoking rates than was seen in previous years. This is because thousands of smokers are switching from deadly combustibles to safer e-cigarettes. If only 10 percent of current smokers switch to vaping over the next 10 years, e-cigarettes have the potential to save up to six million lives by the year 2100.

So while there may be logical arguments on both ends of the agency tug-of-war, the costs of cracking down on e-cigarette advertising will likely be higher than the potential gains. Allowing public airwaves to be used to advertise e-cigarettes, then, should be considered a public health win if it leads smokers to a safer way to use nicotine.

Dr. Carrie Wade (@CarrieLWadeis harm-reduction director at the R Street Institute, a nonprofit group promoting limited government and less regulation.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.