America Has Tobacco Prohibition Through Regulation


Most Americans don’t like tobacco use. That’s why state after state, city after city, has passed increasingly aggressive bans on tobacco use.

The proponents of this sort of policy bristle when they’re called prohibitionists, but they really are. Their goal isn’t public health. Their goal is to limit the choices you and I can make. That reality, I think, is far less popular with the public at large when they’re introduced to it.

And what if you found out that the federal government had issued a de facto sort of prohibition, disallowing any new tobacco products from entering the marketplace? It’s true, and happening right now:

David Sley wants to sell cigarettes. This, by his own admission, does not make him the most sympathetic person to feature in an article about excessive government regulation. Yet Sley, an aspiring entrepreneur who has spent more than two years trying to navigate the Food and Drug Administration’s new tobacco regulations, has legitimate cause to complain. The entire cigarette industry has been brought to a standstill by the FDA, forbidden from introducing any new products since March 2011. Tobacco companies contend that the agency’s actions rest on uncertain scientific and legal grounds — and, for once, they may be right.

The Tobacco Control Act of 2009 granted the FDA unprecedented authority to regulate cigarettes. Among its new powers is pre-market review: New cigarettes cannot be introduced without an order from the agency. The law provides two routes to approval. One route is for completely new tobacco products and requires a highly detailed review. The other is for products that are “substantially equivalent” to those already on the market.

The latter option has become a source of contention between applicants and the FDA. As first reported by Michael Felberbaum of the Associated Press, since 2009 the agency has received about 3,500 substantial equivalence reports. Approximately 115 employees work on reviewing them. And to date they have issued exactly zero rulings.

Mayor Michael Bloomberg, the most high-handed nanny statist in the country, recently appeared on the David Letterman show and defended his ban on large sugary drinks as just being an effort to inform the public. Which, of course, isn’t true at all. The policy was aimed at controlling our choices, and that’s the line government ought not cross.

Inform us? Sure. Deny us choices? Absolutely not.