In 2009, then-President Barack Obama (a former smoker) signed the Family Smoking Prevention and Tobacco Control Act (TCA). The landmark legislation gave the U.S. Food and Drug Administration (FDA) the authority to regulate tobacco products, including cigarettes, cigars, smokeless and other tobacco products. The law also banned the sale of flavors (other than tobacco and/or menthol) in combustible cigarettes and included various regulatory requirements for tobacco manufacturers, including advertising and other restrictions.
In his statement, Obama remarked that the “law will reduce the number of American children who pick up a cigarette and become adult smokers.” While reducing youth use of cigarettes is laudable, the TCA essentially deemed all tobacco products as the same. This broad stroke has wrought confusion and halted innovation with tobacco harm reduction products. Moreover, the FDA has hidden behind the TCA to restrict adult choices, despite Obama stating back in 2009 that the law would “allow adults to make their own choices.”
Like many tobacco policies, lawmakers and public health groups often use youth use of tobacco as reasoning behind bans and draconian regulations. TCA’s impact on youth smoking was negligible in the immediate years after the act.
In 2009, according to the Monitoring the Future study (MTF) conducted by the University of Michigan, 11.2 percent of 12th graders reported smoking combustible cigarettes in the past month. By 2013, this had only decreased by 24.1 percent to 8.5 percent of 12th graders being current smokers.
Also in 2009, data from the Centers for Disease Control and Prevention’s (CDC) Youth Risk Behavior Survey (YRBS) reported that among high school students, 19.5 percent reported past month smoking. By 2013, 15.7 percent of high school students were current smokers – or a 19.5 percent decrease.
Youth data is important, but the CDC also reports on adult smoking. In 2009, according to the CDC’s Behavioral Risk Factor Surveillance Survey (BRFSS), 20 percent of young adults ages 18 to 24 years old were current smokers. By 2013, this had increased by 17.5 percent to 23.5 percent of young adults being current smokers.
Fortunately for the lungs of young Americans, novel tobacco products have been introduced to the U.S. marketplace. These new products have seemingly snuffed out youth and young adult smoking.
Electronic cigarettes were first introduced to the United States’ marketplace in 2007. Between September 2014 and May 2020, sales of e-cigarettes increased by 122.2 percent. During the same time period, youth and young adult smoking rates plummeted.
Among 12th graders, according to data from MTF, current smoking rates decreased by 53.7 percent from 6.7 percent of high school seniors smoking in 2014 to 3.1 percent in 2020. According to the YRBS, current smoking among high school students decreased by 44.4 percent from 10.8 percent in 2015 to six percent in 2019.
And finally, in 2020 (according to the BRFSS) only 9.6 percent of adults aged 18 to 24 years old smoked combustible cigarettes. This is a 45.9 percent decrease from 2015 when 17.7 percent of young adults were current smokers.
But despite these statistics, the FDA still refuses to acknowledge the role of tobacco harm reduction products have had in reducing combustible cigarettes. Worst yet, the FDA is in fact actively blocking adult access to these products.
As of late April 2022, nearly six months after the agency was to determine authorization for millions of e-cigarette products, only three companies have received marketing orders for their e-cigarettes. Thousands of companies have been issued denials. And because of the wording of the TCA, and the fact that all tobacco products are treated the same, the agency has authority to continue denying adult access under the guise of protecting children.
The TCA did give FDA authority to determine, and authorize, the marketing of tobacco products that are less harmful than combustible cigarettes – which are by far the deadliest form of tobacco. Unfortunately, only a handful of companies are permitted to market their products with such “modified risk orders,” and several companies have been awaiting FDA authorization for years.
In 2009, upon the signage of the TCA, then-President Obama remarked that “[o]ne out of every five children in our country are now current smokers when they leave high school.” According to the CDC’s YRBS, in the four years after that speech, three out of 20 students were current smokers. By 2019, after the explosion of novel tobacco products such as vaping, it was three out of 50.
If the TCA was designed to protect public health and youth from the harms associated with tobacco use, it’s long overdue that the FDA recognizes the Act’s failures and embrace harm reduction options.
Lindsey Stroud is director of the Taxpayers Protection Alliance’s Consumer Center.