Tobacco and the 2008 Presidential Election

With all the political differences between Barack Obama and John McCain, few voters are likely to pay much attention to their differences on tobacco policy. Yet tobacco will continue as the nation and world’s top killer for the next few decades, making tobacco policy an important influence on health. In this report, Corporations and Health Watch reviews the major tobacco issues that the next President will face and analyzes the positions of Senators Obama and McCain on these subjects.

Tobacco decisions for the next Administration

After 2009, the President and Congress will need to decide several questions including:

  • Should the Food and Drug Administration be given the authority to regulate tobacco?
  • Should the federal government raise the excise tax on tobacco?
  • Should the United States ratify the global treaty that seeks to reduce the health burden from tobacco?
  • Should the Federal Trade Commission set new standards for tobacco marketing?
  • What should be the expectations of future Supreme Court justices on such issues as corporate rights, commercial free speech, and the government’s responsibilities for public health?

FDA and tobacco Congress is currently considering legislation to give the Food and Drug Administration oversight of tobacco products. According to the New York Times, the bill calls for the establishment of a new center for tobacco regulation within the F.D.A., gives the agency the authority to regulate the content of tobacco products and bans candy-flavored cigarettes. Recently, legislators have debated whether or not to also regulate menthol in tobacco. The Congressional Black Caucus has opposed a plan to drop menthol from the list of regulated additives, arguing that menthol cigarette advertising targets Black smokers and may exacerbate tobacco’s adverse health impact. The bill calls for the new FDA tobacco unit to be financed by tobacco industry fees projected at more than $5 billion over the next 10 years.

The FDA bill has bipartisan support, with more than 50 Senate and 215 House sponsors. Some Republicans have threatened to block further consideration of the bill and President Bush has not supported it. Big Tobacco has split on the bill, with Philip Morris endorsing it, in part, analysts say, because it will help PM consolidate its position as industry leader by restricting additional advertising. Reynolds American, the second largest tobacco company, opposes the FDA bill and has launched an advertising campaign charging that the FDA lacks the capacity to take on new responsibilities. The TV ads use a vaudeville style plate spinner to make the point that the FDA already has too many responsibilities on its plate.

Federal excise tax on tobacco Currently, the average state excise tax on tobacco is $1.13 (generating $14.5 billion in annual revenue), while the federal excise tax is 39 cents a pack (for annual revenues of $7.3 billion) (www.ryomag.com). Last year, President Bush vetoed the child health insurance bill that included a substantial hike in taxes on cigarettes. The next President and Congress will be hard pressed to find the revenues needed to support rebuilding public health and health care programs. In the current political and economic climate, where new taxes are opposed by many constituencies, tobacco taxes offer a popular source for new income.

Framework Convention on Tobacco Control In 2005, the Framework Convention on Tobacco Control (FCTC), the world’s first public health treaty, became international law. The treaty requires ratifying countries to enact proven measures to reduce tobacco use and its public health and economic burdens.

While the United States joined 167 nations in signing the FCTC, President Bush has yet to send the treaty to the Senate for ratification. In April 2008, Russia ratified the treaty, leaving the United States virtually alone among major nations that have not yet ratified. The next President and Senate will have to decide whether to maintain or change that status.

Federal Trade Commission and Tobacco Currently the Federal Trade Commission provides oversight of tobacco advertising. In the current administration, the FTC has generally favored industry positions on regulation of marketing. While changes in the FDA role may lead to changes in the FTC mandate, a new President and Congress could beef up the FTC. Through appointments, legislation and public pressure, the FTC could again become a force in tobacco control, as it had been at various points in the 1960s.

Supreme Court appointments In a recent analysis of the Supreme Court published in the New York Times magazine, George Washington University law professor Jeffrey Rosen observed that the current court is more pro-business than any in recent history. Even its more liberal members, he writes, regularly support corporate over consumer interests, a trend he attributes to a concerted 35 year effort to transform the court into the most consistently business-friendly branch of government. In 2007, for example, the Supreme Court over-turned an Oregon court’s $79.5-million punitive damages judgment against Philip Morris for its marketing of tobacco; Justice Stephen Breyer, one of the more liberal justices, wrote the majority opinion).

Any tobacco issues related to the FDA, federal taxation, changes in FTC policies or practice, commercial free speech, global treaties, liability litigation or other issues will likely eventually make their way to the Supreme Court. Thus, who the next President appoints and the Senate approves to sit on the Supreme Court will have a major influence on federal oversight of the practices of the tobacco industry. On Jan. 20, 2009, six of the nine Supreme Court justices will be over the age of 70.

McCain and Obama on Tobacco

Whoever wins the 2008 Presidential election, the next occupant of the White House will be a less dependable friend of the tobacco industry than its current resident. As Paul Billings, vice president of national policy advocacy for the American Lung Association, observed, This administration hasn’t been particularly positive on a tobacco-control agenda. Box 1 shows the responses the two candidates provided to the American Cancer Society Cancer Action Network’s (ASC CAN) question on tobacco control.

ACS CAN QUESTION: TOBACCO CONTROL

As president, will you work with Congress to enact legislation (specifically, S. 625/H.R. 1108) to rein in the most egregious manufacturing and marketing practices of the tobacco industry, and will you substantially increase the federal tobacco tax to help improve public health, save lives, and protect children from a lifetime of smoking?

ANSWER: John McCain, Republican
Responses provided by candidate

 John McCain has consistently supported regulation of tobacco products by the Federal Drug Administration and is an original cosponsor of S. 625, the Family Smoking Prevention and Tobacco Control Act. He also was a leading voice in Congress calling on tobacco companies to cease marketing campaigns for tobacco products that target children, such as the Joe Camel campaign. John McCain does not propose to increase tobacco taxes, believes that the more efforts should be made to provide educational and preventive media campaigns to discourage any American from starting to smoke, and will work to make smoking cessation programs more widely available.

ANSWER: Barack Obama, Democrat
Responses provided by candidate

I am a cosponsor of S.625 and support greater tobacco regulation at the federal level. In addition, I was an ardent supporter of reauthorization of the Children’s Health Insurance Program, which included a significant increase in the federal tobacco tax. As president, I will also increase resources for public health programs that tackle smoking, particularly for programs targeting children, individuals with mental illness and other vulnerable populations.

ANSWER: ACS CAN

ACS CAN, along with the prestigious Institute of Medicine and the President’s Cancer Panel, strongly supports giving the US Food and Drug Administration authority to regulate the production and marketing of tobacco products. Today, the tobacco industry markets its deadly products to children with impunity. Every day 4,000 kids try their first cigarette 1,000 of them go on to become regular smokers. Enacting S. 625/H.R. 1108 will prevent more kids from smoking and it will save lives. ACS CAN also supports substantially increasing the federal tobacco tax because we know that every 10% increase in the cost of a pack reduces youth smoking by 7% and overall cigarette consumption by 4%. 87% of lung cancer deaths are caused by tobacco use and more than 400,000 Americans still die from tobacco related causes every year. Sensible regulation of the tobacco industry and increasing cigarette taxes will save lives.

Credit: American Cancer Society Cancer Action Network

Candidates responses to surveys provide one source of information on their positions should they be elected; another comes from their legislative voting record.

McCain’s Record on Tobacco

In the late 1990s, Senator McCain led an ultimately unsuccessful effort to give the FDA a mandate to regulate tobacco in exchange for protecting the tobacco industry against liability claims. In retaliation, the tobacco industry helped to fund negative ads against McCain in the 2000 South Carolina primary election. His loss in that state helped to force him out of the 2000 race. Currently, McCain supports legislation to give the FDA the power to regulate tobacco although he has not spoken out forcefully on the bill.

In the past, McCain has also supported increases in excise taxes on tobacco. In 2007, however, with President Bush, he voted against a children’s health insurance bill that was funded in part by an increase in the federal tobacco excise tax, a funding source McCain now opposes.

Senator McCain has promised to appoint conservative Supreme Court Justices, pointing to Justices Samuel Alito, John Roberts and Antonin Scalia as models. As Steven G. Calabresi and John O. Mcginnis, law professors at Northwestern University, observed in an op ed in the Wall Street Journal, On judicial nominations, [McCain] has voted soundly in the past from Robert Bork in 1987 to Samuel Alito in 2006. It seems unlikely that a President McCain would appoint Justices likely to change the pro-business slant of the current court.

While the tobacco industry has not provided much support to Senator McCain’s Presidential campaign, former tobacco industry lobbyists play key roles in his campaign. Charlie Black, a top campaign aide, was formerly director of BKSH and Associates, one of Washington’s most powerful lobbying groups. According to Open Secrets, since 1998 BKSH earned almost $1.3 million in lobbying fees from Philip Morris. Black’s wife, Judy Black, also an adviser to McCain, was a former executive of the Tobacco Institute, the research arm of the tobacco industry until the Master Settlement Agreement forced its dissolution. Black rejects charges that his former work for tobacco companies disqualifies him to work on McCain’s campaign. I think you can change professions and unless you did something unethical or criminal, your past profession should not be injected into the candidate’s campaign, he said. It’s absurd.

Obama’s Record on Tobacco

Senator Barack Obama has recently quit smoking, claiming that his wife would not let him run for President until he did. His policy positions on tobacco, however, date back to his time in the Illinois state Senate. According to a recent review of Obama’s legislative record on tobacco by Clifford Douglas, the Executive Director of the University of Michigan’s Tobacco Research Network, Barack Obama has:

  • With nine other Senators called on President Bush to send to the Senate for ratification the Framework Convention on Tobacco Control
  • Served as one of the original co-sponsors of legislation to give the FDA the authority to regulate tobacco products and marketing
  • Voted in support of the Display of Tobacco Products Act that makes it illegal to sell or give away tobacco products in self-service settings
  • Co-sponsored an Illinois state bill to use money from the Tobacco Settlement Recovery Fund to support a comprehensive tobacco use prevention program.

None of Obama’s current staff have been found to have worked for the tobacco industry and Obama voted against confirmation of Supreme Court Justices Alito and Roberts. In a recent analysis of the Presidential candidates positions on Supreme Court appointments in the Columbia Journalism Review, Zachary Roth wrote:

For instance, on the issue of the appropriate balance between corporate and individual rights: the press should make clear that Obama’s appointees, in keeping with his desire for empathy, can be expected to take a broader interpretation of laws designed to protect individuals; while McCain’s, if they are indeed in the Roberts-Alito mold, will interpret these laws more narrowly, and more often come down on the side of corporations.

However, whether Barack Obama will appoint Supreme Court Justices (or whether the Senate will confirm them if he does) who can reverse the pro-corporate tilt of the current court and restore a more balanced consideration of the rights of consumers and public health remains an open question.

2008 Election opportunities for tobacco control advocates?

In summary, the 2008 Presidential election campaign offers voters two major party candidates who are likely to provide somewhat more support for tobacco control than the current administration. Unfortunately, it seems unlikely that tobacco control will surface as a major campaign issue. By understanding the similarities and differences between Senators McCain and Obama on tobacco, by linking the issue of tobacco control to debates on health care policy, and by encouraging the candidates and the media to focus on their plans for the Supreme Court, tobacco control advocates may find some windows of opportunity to advance their cause.

View CHW’s coverage on Corporations, Health and the 2008 Presidential Race: Part 1: Following the Money
Part 2: Clinton, Obama and McCain on the Role of Corporations
Part 3: Clinton, McCain, Obama and the Food Industry
Part 4: Fixing the FDA: Options for the Next President