by Carl V Phillips
A couple of days ago, I described the FDA’s TPSAC committee’s position on menthol as a recommendation that it be banned. Since that time, there has been much ink devoted to pointing out that they did not explicitly recommend a ban. Well, let’s see: They are a scientific committee looking at health sciences to see if banning menthol would meet a legal standard of reducing health effects, and they declared that it indeed would benefit public health if menthol were banned. That strikes me as a recommendation in every sense that a scientific committee should be making recommendations.
After all, last I checked, the “S” in “TSAC” stood for “scientific” (I think the other letters have something to do with representing the interests of the pharmaceutical industry — I recall reading that somewhere). Reading a scientific report should not involve combing through the tea-leaves for the subtext. Perhaps that would be reasonable if it were a political committee, but it would have to be a Politburo-like one. Scientific conclusions should be made clearly. The scientific conclusion itself either tends to recommend a particular policy when combined with a social policy goal, or it does not. Whether those who write an ostensibly scientific report say something prescriptive about policy is usually of no importance because they are seldom expert at parsing a scientific conclusion with social policy goals (e.g., no serious reader of research reports pays any attention to the stupid “policy recommendations” paragraph that is tacked onto many of them).
Of course, it would be naive to pretend that most of the ostensible scientific analysts working in tobacco are actually doing science. But it is unusual to see them be quite so blatant about it. I am not talking about the committee so much as all the commentators who immediately got so excited about their lack of use of the word “recommend” and then the next day got very excited about a brief statement that the effect on the black market should be considered.
I realize that the committee was probably instructed about what key words to use and not use to avoid an apparent split in the FDA between the “scientific recommendation” and the already-planned policy action, but if such tea-leaves are really the essence of what it is doing, it is sadder than we even thought. As I and everyone who offered useful assessment about the events of that noted, the stock of Lorrilard was up, so those in the ruling class apparently did already know that this would not cause any restrictions, but presumably it was based on some firmer source. But, seriously, has discussion of tobacco descended so far that this is all that passes for scientific analysis anymore? Almost no one actually wrote about the scientific substance of what the science committee said; perhaps everyone is saying we should not care.
The committee made a statement to the effect that the black market needed to be considered. But arguing that this could increase the health cost is an extremely difficult case to make. Increasing the cost of menthol cigarettes to consumers cannot possibly cause them to consume more, and that is exactly what a ban does — increases the cost. Whatever the black market does to fill the gap, it must be at a higher net cost to the current legal consumers (adding together the purchase price and whatever transactions costs result from not just being able to buy at the C-store). If the black market would supply product cheaper than the current legal market, then it already can do that, and thus is doing that, so anyone who is price sensitive already has that option.
Thus arguing that the black market would increase health costs requires one of two arguments. (1) That the black marked product would be substantially less healthy than current commercial products. I would really love to see the FDA-types making that argument, since it requires saying (a) “Big Tobacco” keeps their products healthier than they might be and (b) not all cigarettes pose exactly the same risk (obviously true, but anathema to that political faction). Alternatively, (2) the argument must be that the ban would lead to a restructuring in the black market that would substantially increase its competitiveness or lower costs of supply. While this is certainly possible (government pump priming of the private market — we could use some of that!), it requires some serious analysis to establish.
Extraordinary claims require extraordinary evidence, and the claim that raising the cost of this product would lead to an increase in consumption is rather extraordinary.
Frankly, I think what FDA people and most commentators really care about is loss of tax revenue. Government gets by far the largest share of the net revenue from the purchase price of cigarettes, more than manufacturers, distributors, or retailers. (That is just the cash in, and ignores the savings to the government coffers resulting from reduced pension payments.) So it is not difficult to see why they want to protect this. There is no doubt that if the government lowered the quality of its cigarettes by taking out menthol (hey, if they make the biggest profits, then it is only reasonable to call it the government’s market ), then they would lose a lot of market share to those who did not, a much bigger loss than just the shrinking of the market.
In any case, there is a difference between the scientific analysis of a specific question and a policy decision, and would be really nice if everyone would pay attention to that.