incentives for attracting more consumers and selling more cigarettes. A more ambitious strategy would ask these questions: Can anything be done to substantially curtail the availability of tobacco products? Can anything be done to change tobacco products to make them less hazardous? Is it possible to bring the industry’s incentives into closer alignment with the public health goals of tobacco control? No existing regulatory statute provides a model for tobacco products because there is no other lawful product for which the declared public goal is to suppress its use altogether. A new legal regime, new models, and new policy paradigms are needed.
The challenge, then, is to craft a policy framework that is aligned with the unique aim of tobacco control policy: to substantially reduce, if not eliminate, the use of this unusually damaging product without replicating the problems associated with the prohibition of alcohol in the 1920s and with the contemporary prohibitions of illegal drugs (e.g., widespread noncompliance, violent black markets, corruption, and high rates of arrest). In this chapter and Chapter 7, the committee offers several ideas for more fundamental change.
It is clear that the U.S. Congress has the constitutional authority to enact national legislation bearing on all domains of tobacco control, including banning the distribution and use of tobacco products, analogous to the authority that it exercises over controlled substances such as peyote and marijuana. The pertinent policy questions are (1) whether Congress should exercise its constitutional authority (by prescribing national rules or by delegating the authority to do so to a federal agency, such as the Food and Drug Administration [FDA]), or, conversely, whether it should allow the states to exercise primary authority to regulate the production, distribution, marketing, and use of tobacco; and (2) if Congress does exercise federal regulatory authority in any of these domains, whether it should leave any room for supplemental state regulation and, if so, within what constraints. The committee believes that the time has come for Congress to exercise its acknowledged authority to regulate the production, marketing, and distribution of tobacco products while freeing the states to supplement federal action with their own measures that aim to suppress tobacco use and that are compatible with federal law.
Setting aside the complexities of a complicated body of federal law, Congress has essentially three options: (1) state control, in which the federal government leaves regulation in a particular domain to the states (and,