In 2009, a new law authorized the U.S. Food and Drug Administration to regulate cigarettes and reduce their terrible toll on the nation's health. Even though less than 20% of adult Americans smoke, it's still the No. 1 cause of preventable death. But the law set up a basic conflict: On the one hand, it established a regulatory regimen designed to make smoking more dislikable and distasteful. On the other, it clung to the basic tenet that smoking is a personal choice adults should be allowed to make for themselves.
No wonder that just about every attempt to regulate the contents and marketing of cigarettes runs into troubling contradictions. Take the recent scuffle over the FDA's requirement that tobacco companies put graphic warning labels on cigarette packs, including images of diseased lungs and rotting mouths. Such labels might discourage young people from smoking — most new smokers are minors — but a judge ruled against requiring them, saying they were a violation of the companies' free speech rights. In effect, cigarettes would have become the only legal product whose manufacturers would be required not just to provide informational warnings, as they already must do, but to aggressively advertise against themselves on their own packages.
Now the FDA is turning its attention to menthol, and it is running into similar complications. The minty flavoring doesn't make cigarettes more likely to cause disease or death, but it masks the harshness of the smoke, which makes developing a smoking habit easier. It may also make cigarettes somewhat more addictive by acting on the same brain receptors that respond to nicotine. Anti-smoking groups have called on the FDA to ban the flavoring.
Far more science is needed. But even if the addiction theory proves true, a menthol ban would only tinker around the edges of smoking's dangers while reducing the options of adult smokers who prefer a particular kind of cigarette. The big problem with cigarettes isn't menthol or the design of the packaging; it's smoking, period. If the government is going to allow tobacco companies to sell cigarettes, what's the logic of requiring them to make cigarettes taste worse?
Maybe it's time for this country to reopen the tough, underlying debate of whether cigarettes should be banned outright. Perhaps the costs and dangers outweigh the importance of personal liberty and individual choice. But if it's determined that adults do have the right to make this potentially deadly personal decision, regulation should be limited to three main missions: consumer information, such as government-sponsored anti-smoking campaigns and better labeling on cigarette packs that include ingredients and health warnings; protecting minors with crackdowns on marketing and sales targeted to them; and protecting the rights of nonsmokers by banning smoking in places where secondhand smoke can harm others.
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