Close but No Cigar: A Comparative Analysis of the FDA's Attempt to Regulate Tobacco Use

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I. INTRODUCTION

Each year more than three million smokers across the world die from tobacco-related illnesses, including respiratory disorders, heart disease, and cancer. 1 Recent studies indicate that this number will increase substantially over the next few decades unless current smoking habits change significantly.2

In an effort to curb high smoking rates, many nations have developed anti-smoking programs to decrease the popularity and use of tobacco products.3 These programs have employed a number of approaches with varying intensity,4 and consequently, have achieved diverse results.5

In 1991 and 1992 France implemented a three-tiered campaign to reduce tobacco use. First, the French National Assembly enacted legislation that banned smoking in all public areas and the work place and strictly regulated smoking in restaurants, pubs, and other semi-public areas.6 This legislation supplemented an earlier law that banned all forms of tobacco advertising and increased the tax on cigarettes by thirty percent.7

On August 28, 1996, the U.S. Food and Drug Administration (FDA) issued a rule (Final FDA Rule, FDA Rule, or Final Rule) mandating significant federal regulation of the sale, distribution, and advertisement of tobacco products.8 The Final FDA Rule sought to achieve the same goal as the French comprehensive antismoking program-a reduction in the health-care and societal costs resulting from the consumption of tobacco products.9 In contrast to the broad-based French approach, however, the FDA Rule does not address adult tobacco use. 10 Instead, the FDA Rule seeks to reduce long-term tobacco consumption and related costs through restrictions aimed solely at youth smokers. 11

This Note compares and analyzes the anti-smoking programs developed by France and the United States. First, it addresses the factors that motivated the French government to pass anti-smoking legislation. Next, it analyzes provisions of the French program, including an assessment of the compliance with and enforcement of smoking restrictions. In addition, this Note examines the effect of the French government's smoking restrictions, focusing on whether the popularity and use of tobacco has decreased in France.

This Note then reviews the history of federal anti-smoking legislation in the United States and the factors that prompted the FDA to promulgate its anti-smoking rule. Furthermore, it examines the provisions and scope of the Final FDA Rule.

Finally, in light of France's anti-smoking program, this Note concludes that, although the Final FDA Rule will probably reduce smoking rates among minors, it falls short of its potential impact. The Final FDA Rule will not effectively reduce youth access to tobacco products and youth exposure to pro-tobacco advertisements because it (1) preempts stricter state laws; (2) focuses on the purchase of tobacco rather than its possession; (3) fails to ban public smoking; (4) does not impose a cigarette tax increase; and (5) does not ban all non-text tobacco advertising.

II. DISCUSSION

A. Anti-Smoking Programs in France

1. Anti-Smoking Legislation in France Prior to 1992 Although some observers have characterized cigarette smoking in France as a "national symbol,"12 a "national habit,"lX and a "torch of freedom,"14 the French have lived under anti-smoking regulations for over twenty years.l5 In 1976 the French National Assembly enacted the Veil Law, which protected non-smokers from second-hand smoke by banning smoking in public places.l6 During the next two decades, piecemeal legislation also prohibited smoking in cinemas, theaters, post offices, department stores, school classrooms, hospitals, metro cars, buses, commuter trains, and domestic flights operated by the state-owned airline. 17

a. French Smoking Rates Prior to 1992

Despite nearly twenty years of government imposed anti-smoking legislation, a large percentage of the French population continued to smoke regularly as of 1991. …