Seven Thoughts: Fox News Thinks Biden is Going to Ban Cigarettes

Earlier this week, Fox News published a story with the headline, Biden admin working to effectively ban cigarettes in 11th hour proposal a ‘gift’ to cartels, expert says. 

It’s about an ongoing proposal from the U.S. Food & Drug Administration (FDA) to establish nicotine limits for tobacco products. The focus is cigarettes, but it likely would apply to other products, including, depending on when it would get enacted, some—but not all—cigars. In early December, out of the blue, the FDA, advanced the proposal.

This week, thanks to a headline and story that is aimed at riling people up more than explaining what’s actually happening, people are suddenly asking questions like, is America going to ban cigarettes? What would that mean for cigars? Can Biden do this? After one too many messages like this, I had enough. All of this is very dumb.

I have some thoughts and access to a blog, so here we go.

What’s Actually Going On

The very short of it:

• Since 2018, the FDA has been formally looking into whether it would be good to establish a nicotine limit. The idea is pretty simple: if nicotine is so addictive, what happens if we make it so cigarettes don’t have as much nicotine?
• The FDA is not close to making nicotine limits a law.

The nicotine limits proposal is more prolonged than many other actions taken by the FDA. It can be viewed in three (four?) stages:

1. What Has Happened
   • This started in 2018 when the FDA opened a public comment period to seek feedback on this idea. It garnered more than 7,500 comments. Normally, an agency only has to do a single comment period; however, the 2018 comment period is what’s known as an Advance Notice of Proposed Rulemaking (ANPRM). This is an optional step, which is why I’d consider it Stage 0.
   • FDA is trying to move on to the next stage, which is what’s happening now. It has sent a revised version of the proposal to the White House Office of Management and Budget (OMB), which has met with FDA and others, including pro-tobacco groups and tobacco businesses, about the proposal. OMB publishes a list of the meetings it has and who is in them; so far, it appears there were three meetings. Lobbyists representing the cigar industry have attended them all: one, two, and three. 
   • These meetings are wrapped up. If there were going to be more meetings, the rule should still be listed here. The Fox News article says the FDA confirmed the review was completed as of Jan. 3.
2. What Happens Next
   • FDA is required to do something called a Notice of Proposed Rulemaking (NPRM). Since June 2022, it has been formally moving towards doing this.
   • No, not ANPRM; an NPRM. Confusing. I got them confused as recently as today. What you need to know is that the ANPRM doesn’t satisfy the requirements, only the NPRM does.
   • So, after the meetings are wrapped up and after the FDA and the White House come to an agreement about a proposed rule, there will have to be another comment period. That will last for at least 90 days but could be longer.
3. How It Becomes Law
   • After the comment period closes, the FDA will need to review the comments, come up with responses, and then once again work with OMB and the White House to finalize the law.
   • This is the stage that the proposed bans on menthol cigarettes and flavored cigars are currently at. I don’t think it’s very accurate to compare the progress of the menthol cigarette bans versus the nicotine limits, but to give you some idea: the NPRM—the next stage for nicotine limits—for menthol cigarettes wrapped up in the summer of 2022. Two and a half years later, it’s stalled before the end of Stage 2.
   • Also of note, these comment periods can cause big problems for the FDA. The reason why the agency lost the premium cigar regulation lawsuit was because a judge found it ignored a crucial comment and decided to enact a law anyway.
4. Enforcement
   • The final rule would need to be published in the federal register. Typically, the rules will take a few months before they start to go into effect. Based on past policy, a rule like this would likely phase out the higher-nicotine cigarettes over time. So even if the rule went into effect in 2025, the high nicotine cigarettes would probably still be legal until at least next year.
   • Any tobacco regulation is going to be subject to a lawsuit. Sometimes, the rules get put on hold while tobacco companies sue. Sometimes, the lawsuits happen while the rules are in effect. The government’s track record in winning tobacco lawsuits is, at best, spotty. Given the increasing anti-regulatory bent of the federal court system, it probably won’t be improving.

The very short of it: we are years away from it being illegal to buy higher-nicotine cigarettes.

The Fox News Article

Here it is.

There are a few basic premises that the article relies on:

1. This Rule is Being Expedited Without Any Consideration of the Consequences
2. Current Cigarette Smokers Won’t Accept Lower Nicotine Cigarettes
3. Mexican Cartels Will Start Smuggling Higher Nicotine Cigarettes to the U.S.

No one sat down with the regulators?

To quote a quote from the article:

This decision is being thrown down the public’s throat without one ounce of thought and preparation. Nobody sat down with law enforcement, nobody sat down with any doctors, no one sat down with any regulators… — Richard Marianos

In reality: there was a comment period in 2018 and recent meeting with regulators; there will be another comment period, more meetings.

What Would Cigarette Smokers Do?

I don’t know. I don’t think anyone knows. The world is a complex place. Not every cigarette smoker is going to react the same way. My guess is:

• Some who really need the higher nicotine would switch to vaping
• Some would smoke roll-your-own cigarettes
• Some would smoke the lower nicotine cigarettes

I suppose some would buy black-market cigarettes, but I’m guessing that those are the people who are already buying black-market cigarettes in an effort to save on taxes and/or for convenience.

The idea that a large swath of Marlboro Lights smokers who currently buy their cigarettes in a legal way are going to seek out places to buy the cigarettes illegally seems less likely than those other options.

Of course, that’s not the only part of the argument in the article:

Well, if you take down the nicotine levels, people are going to smoke more. That is proven. All you have to do is just drive here in DC and see, you know workers on their smoke break. — Richard Marianos

The “proven” part seemed odd to me. Here’s a double-blind study published in one of the world’s foremost medical journals that says the exact opposite.

Cartels + Smuggling + Tobacco

The article quotes this letter, signed by five senators, about links between the CJNG, a cartel, and a Swiss tobacco company. I read the letter and the sources it references. It does not allege that Mexican cartels are bringing cigarettes over the border to the U.S. Instead, the letter cites reports that the cartel and this Swiss company are engaged in racketeering in the domestic Mexican market by forcing vendors to sell only certain brands of cigarettes or else.

The letter and article also cite this 2015 State Department report about how criminal organizations traffic tobacco. While that report mentions Asian and Eastern European trafficking operations—only some of which involve trafficking to the U.S.—the word Mexico (or Mexican, or cartel) isn’t mentioned at all. That said, there are a few blank pages at the end where you could write those words, a couple of pages even have their own pre-drawn lines.

Biden’s ban is a gift with a bow and balloons to organized crime cartels with it, whether it’s cartels, Chinese organized crime, or Russian mafia. It’s going to keep America smoking, and it’s going to make the streets more violent — Richard Marianos

Even this letter from Rep. Mark Green, R-Tenn., which is solely about cartels trafficking cigarettes, makes no mention of evidence that cartels are doing this, only the potential. While I don’t know much about the profit margins of trafficking fentanyl, cocaine, marijuana or people, each of those would seem to me to be a more profitable business than cigarettes. And if it was that lucrative to be trafficking cigarettes, the cartels would already be doing it.

For Cigar Smokers: This Wouldn’t Apply to “Premium Cigars” (At Least Right Now)

This is quite confusing, but if the rules were magically enacted today—which legally, is not on the table—the nicotine limits wouldn’t apply to “premium cigars.” The aforementioned lawsuit that the FDA lost means that it cannot apply rules like this to “premium cigars,” basically any non-flavored handmade cigar. That ruling is under appeal and that appeal will almost certainly be resolved before the nicotine limits rule gets enacted.

If the government wins the appeal, then these rules could apply to all cigars. There’s also a scenario that involves the FDA losing the appeal but figuring out the premium cigar regulations before the nicotine limits rule gets enacted. That’s a different Pandora’s box, but one many years down the road.

That said, if this rule were to be enacted today, it seems likely that it would apply to machine-made cigars and flavored cigars, though that’s not entirely clear at the moment.

A Note About the Article’s Star Witness

The whole reason why this article was written wasn’t because of what Richard Marianos said, it’s what Fox News failed to point out. His bio includes:

• He spent 27 years at the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
• Adjunct professor at Georgetown University
• Consultant for Big Tobacco

The last part isn’t mentioned in the Fox News story. In fairness, neither is the Georgetown part.

Marianos’ work with Reynolds American (otherwise known as RJR) goes back more than a decade. Other articles also mention him working for/with Altria. Currently, he also serves as the executive director of the Tobacco Law Enforcement Network, which appears to be relatively new, though it is strikingly similar to a project he worked on in 2014 that was “sponsored by” Reynolds.

As someone who is opposed to the nicotine limits rule, I do feel like it’s important for you to know that the fear-mongering about crime is part of Big Tobacco’s strategy against regulation. It’s bipartisan, oftentimes paid for and routinely doesn’t make much sense.

While this genre of PR spin is for the GOP base, Big Tobacco’s message to Democrats is that new tobacco laws will lead to more Black people getting arrested and/or harassed by the police. Al Sharpton was lobbying the Biden administration not to ban menthol cigarettes because of the death of Eric Garner. Whether it was Sharpton or other voices, I believe it worked. I’m not for banning menthol cigarettes, but I feel fairly confident that a ban shouldn’t be based on Garner’s death, which was kicked off via an investigation of whether he was illegally selling cigarettes. Instead, I’d prefer we ground these debates in actual consequences, though it’s quite clear that fear-mongering about the potential of cartels was able to get way more engagement than the way we try to cover the issues.

What you should have been told is that Marianos isn’t just relying on his nearly three decades at the ATF. He’s also advancing one of Big Tobacco’s favorite PR strategies: new tobacco laws will benefit criminals. If he’s doing this work in coordination with Reynolds and with compensation from Reynolds, you definitely should have been told that.