The Journal of
Cognitive Liberties

This article is from Vol. 2, Issue No. 1 pages 61-68 (Spring/Summer 2000)
© 2000 CENTER FOR COGNITIVE LIBERTY AND ETHICS
All rights reserved worldwide.  ISSN: 1527-3946
 

 

 

 

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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Richard Glen Boire, Esq. is the executive director of the Center for Cognitive Liberty & Ethics.