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Disquisition on the Drug War
The Marijuana-Marlboro® Paradox
Comments on FDA
v. Brown & Williamson Tobacco Corp. et al.
Tobaccos tabu and toboggan's a back seat.
Secret satieties and onanymous letters
make the great unwatched as bad as their betters.
Finnegans Wake1
In a landmark
drug case decided on March 21, 2000, the United States Supreme Court ruled that the Food
and Drug Administration (FDA) does not have jurisdiction over tobacco products and, hence,
has no authority to regulate cigarettes, including advertising targeted at minors. The
Court’s opinion shines a light on the dumbfounding contradictions in our national
drug policy, which drastically distinguishes (legal) drugs such as nicotine and alcohol,
from drugs such as marijuana on which we’ve declared "war."
The Supreme Court’s ruling stemmed from a
1996 FDA rule in which the FDA, for the first time, declared that nicotine is
"drug" and that cigarettes and smokeless tobacco are "drug delivery
devices," which it has the power to regulate. According to the 1996 FDA rule,
nicotine is a "drug" under the agency’s purview because it "exerts
psychoactive, or mood-altering effects on the brain" and these effects are
"intended" by those who manufacture tobacco products. Thus, held the agency, it
could regulate tobacco products and would do so immediately by limiting promotion,
labeling, and selling of tobacco products to minors. A coalition of tobacco manufacturers,
retailers, and advertisers, sued the FDA, asserting that nicotine is not a
"drug" and that the FDA, therefore, lacked jurisdiction to regulate tobacco
products.
In order to understand the FDA’s 1996 rule,
it’s necessary to know a bit about its tobacco policy up until that time. Prior to
1996, the FDA had consistently held that it lacked jurisdiction over tobacco, an
understanding affirmed by Congress, which over the years, rejected several bills that
would have explicitly given the FDA jurisdiction over tobacco products. Thus, up until
1996, tobacco products were exclusively regulated by Congress. In 1965, for example, it
was Congress, not the FDA, that required all cigarettes packs to carry the warning
"Caution: Cigarette Smoking May be Dangerous to Your Health."2
Similarly, in 1969 it was Congress, not the FDA, that banned all radio and television
advertising of cigarettes.
Indeed, prior to its 1996 about-face, the FDA had
long held that cigarettes were not "drugs" within its purview, unless the
manufactures made health or therapeutic claims—something that not even the tobacco
companies were ready to assert.3 In 1996, to the surprise of many, the FDA
reversed itself, ruling that nicotine is a "drug." To justify its change of
position, the FDA extensively documented the dangers associated with tobacco products,
noting that "[m]ore than 400,000 people die each year from tobacco-related illnesses,
such as cancer, respiratory illnesses, and heart disease, often suffering long and painful
deaths," and that "[t]obacco kills more people each year in the United States
than acquired immunodeficiency syndrome (AIDS), car accidents, alcohol, homicides, illegal
drugs, suicides, and fires, combined."4
The FDA recognized, however, that it was forced
into a paradoxical position. The FDA’s core objective is to ensure that any product
within its regulatory power is "safe and effective." Given that it had just
documented the dangers associated with tobacco use, how could it possibly declare
cigarettes and other tobacco products safe? It seemed that if the FDA claimed jurisdiction
over tobacco products it would have no choice but to ban them altogether. Yet, a little
known federal law prevents such a ban, largely for economic reasons:
[t]he marketing of tobacco
constitutes one of the greatest basic industries of the United States with ramifying
activities which directly affect interstate and foreign commerce at every point, and
stable conditions therein are necessary to the general welfare. 5
The only way out of the paradox was for
cigarettes to be both dangerous "drugs" (thereby giving the FDA
jurisdiction over them) yet also "safe" (so that the FDA would not be forced to
ban them). The FDA’s lawyers rose to the occasion.
The FDA lawyers realized that everything turned
on the meaning of "safe." Cigarettes, said the FDA lawyers, were "unsafe,
as that term is conventionally understood," but were indeed "safe" when
the effects of an outright ban were considered.6 According to the FDA, in
determining whether a drug delivery device such as a cigarette is "safe" under
the Food, Drug, and Cosmetics Act, the agency must consider "not only the risks
presented by a product but also any of the countervailing effects of use of the product,
including the consequences of not permitting the product to be marketed."7
As summarized by the Supreme Court:
…the FDA found that, because of the high level of addiction
among tobacco users, a ban would likely be "dangerous." … In particular,
current tobacco users could suffer from extreme withdrawal, the health care system and
available pharmaceuticals might not be able to meet the treatment demands of those
suffering from withdrawal, and a black market offering cigarettes even more dangerous than
those currently sold legally would likely develop. … The FDA therefore concluded
that, ‘while taking cigarettes and smokeless tobacco off the market could prevent
some people from becoming addicted and reduce death and disease for others, the record
does not establish that such a ban is the appropriate health response under the act.’
… 8
Thus, in 1996, the FDA ruled that cigarettes and other tobacco products, despite being
addictive and dangerous, were "safe" when compared to the much greater dangers
associated with prohibition. Thus, the FDA could have its cake and eat it too; cigarettes
were "drugs" within its jurisdiction, yet "safe," so long as they were
not prohibited.
On March 21, 2000, in an opinion rich with
contradictions when tobacco policy is compared with the national War on Drugs, the Supreme
Court ruled that the FDA does not have jurisdiction over nicotine and tobacco.
Congress, not the FDA, said the Court, is in charge of regulating tobacco products. The
Supreme Court refused to let the FDA escape the paradox. According to the Supreme Court,
either cigarettes were unsafe drugs within the FDA’s jurisdiction, in which case they
must be banned, or they were not "drugs" at all. The Supreme Court chose
the latter.
As the Supreme Court explained:
…were the FDA to regulate
cigarettes and smokeless tobacco, the [Food, Drug, and Cosmetic] Act would require the
agency to ban them. In fact, …the FDA itself has taken the position that if tobacco
products were within its jurisdiction, ‘they would have to be removed from the market
because it would be impossible to prove that they were safe for their intended
us[e].’ 9
As a recent examination of national drug policy,
the Supreme Court’s opinion strips the emperor of his clothes, and the process as
well as the result is embarrassing to look at. On the one hand the federal government
permits adults to use nicotine, while on the other hand, it makes them criminals if they
smoke marijuana – even for medicinal reasons.
A study by the U.S. Department of Health and
Human Services, Public Health Service, in 1983 concluded that cigarette smoking is
"the most widespread example of drug dependence in our country," and that
cigarettes "affect the chemistry of the brain and nervous system."10
Five years later the Surgeon General’s Report used even harsher language, concluding
that tobacco products "are addicting" and that "nicotine is
psychoactive" and "causes physical dependence characterized by a withdrawal
symptom" in much the same way as heroin and cocaine. 11
Marijuana, in stark contrast, causes no
physical dependence. In fact, in 1989 the DEA’s own administrative law judge, Francis
L. Young, declared that marijuana is "one of the safest therapeutically active
substances known to man."12 Yet, while any adult can walk down to the
corner store and buy a pack of cigarettes, marijuana (even for medical use), remains a
Schedule I substance – illegal to possess for any reason under federal law.
Likewise, the cognitive enhancing drug MDMA
(ecstasy) is extremely popular right now, yet because the government has declared it
illegal, users are forced to purchase it on the black-market. MDMA users never know for
sure if the drug they are buying is indeed MDMA, or some other drug or combination of
potentially dangerous drugs. Additionally, because MDMA is outlawed, the price of the drug
is artificially inflated to the point were (according to the government) organized crime
is getting involved in its distribution. Prohibiting MDMA and marijuana produces all the
same problems that we saw 70 years ago during alcohol Prohibition—problems that are
much greater than the problems caused by the drugs themselves.
As discussed earlier, the FDA in 1996 determined
that banning cigarettes would actually increase individual and social harm rather than
reducing it. This very same reasoning should be applied to other drugs (such as MDMA and
marijuana) that the government has declared full-scale war on.
It’s clear to any reasonable person who
examines our nation’s drug policy, that it is riddled with contradictions and
outright hypocrisy. The only way out of the so-called Drug War conundrum is to for our
society-at-large, and legislators in particular, to adopt a more mature view of drugs.
Going to "war" on drugs is infantile. A national policy of intolerance (i.e.,
"zero-tolerance") rather than respect, lies at the root of all our drug problems
– both legal and illegal. Rather than cower in the shadows of "just say no"
propaganda and hypocritically proclaim marijuana a dangerous drug that threatens to
destroy our society, while simultaneously employing contortionist reasoning to keep
cigarettes on the market, we should acknowledge that people have a natural drive to
experience multiple modes of consciousness. The government should accept this as a fact
and begin designing drug policy that makes drug use as safe as possible. If (as Justice
Brennan wrote in his dissenting opinion filed in the case), tobacco policy should
"take into account the realities of human behavior," why should our policy with
respect to other drugs be any different?
Adults ought to
have the right, after all to control their own bodies and minds – and our national
drug policy should respect an adult’s autonomy over his or her own body and mind.
Some may chose to smoke cigarettes, while others will choose to smoke marijuana. Smoking
one plant versus another should not be a crime. No one should be made a criminal just for
his or her mind state. All should be permitted, so long as the person does not harm
others. Any policy short of this—any policy built on intolerance rather than
respect—is destined to lead to a host of absurdities and negative social consequences
such as: prison over-crowding, unjust sentences, misdirection of funds away from schools
in order to build more prisons, property forfeiture, kids dying of adulterated "black
market" drugs, organized crime, sick people denied medicine, helicopters hovering
overhead, men in black bashing down the doors of decent people, and corrupt cops. These
problems are produced not by drugs themselves, but by our immature drug policy.
Making an adult a felon for taking a hit of
marijuana rather than smoking a Marlboro® is irrational. The fact of the matter is that
millions of people enjoy using psychoactive drugs such as nicotine, alcohol, caffeine,
marijuana and MDMA. The government should not be in the business of telling adults what
they can or cannot put in their mouths, or declaring, under threat of imprisonment, loss
of property and heavy fines, that its okay to operate your mind with the benefit of one
plant but not another. What goes on inside any given person’s body and mind ought to
be nobody’s business but that person’s.
Lets replace the value of intolerance with one of
respect, and instead of demanding that people "just say no," acknowledge that
adults have the basic human right to control their own bodies and minds, so long as
they do not harm others.
Prohibition is not only passé, it’s bad
policy.
Notes
1 James Joyce, Finnegans Wake (1939) Part:3,
Episode:13, Page:429.
2 Pub. L. 89-92, Sec. 4, 79 Stat. 283.
3 See Cigarette Labeling and
Advertising—1965: Hearings on H.R. 2248 before the House Committee on Interstate and
Foreign Commerce, 89th Cong., 1st Sess., 193; Letter to Directors of
Bureaus, Divisions and Directors of Districts, from FDA Bureau of Enforcement (May 24,
1963), in 1972 Hearings 240 ["[T]obacco marketed for chewing or smoking without
accompanying therapeutic claims, does not meet the definitions in the Food, Drug, and
Cosmetic Act for food, drug, device, or cosmetic"].
4 61 Fed. Reg. 44412, 44398 (1996).
5 7 USC Sec. 1311(a).
6 61 Fed. Reg. 44412 (1996).
7 Ibid., 44412-44413.
8 FDA v. Brown & Williamson Tobacco Corp.
(98-1152) http://supct.law.cornell.edu/supct/html/98-1152.ZO.html [Accessed May 23, 2000].
9 Ibid.
10 U.S. Department of Health and Human Services,
Public Health Service, "Why People Smoke Cigarettes" (1983), in Smoking
Prevention Education Act, Hearings on H.R. 1824 before the Subcommittee on Health and the
Environment of the House Committee on Energy and Commerce, 98th Cong., 1st
Sess., 32-37 (1983).
11 U.S. Dept. of Health and Human Services,
Public Health Service, The Health Consequences of Smoking: Nicotine Addiction 6-9, 14-15,
145-239 (1988).)
12 In the Matter of Marijuana Rescheduling,
Docket 86-22, Opinion, Recommended Ruling, Findings of Fact, Conclusions of Law, and
Decision of Administrative Law Judge, Washington, DC: Drug Enforcement Administration
(6 September 1988). |
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