In September 2009, the FDA adopted a new regulation banning flavored tobacco. The ban specifically targets candy and fruit-flavored cigarettes. While this issue may be obscure to some, for others, it’s a big deal–their favorite brands of cigarettes have been made illegal with little public debate while the country is occupied with a tanking economy and more contentious political issues such as health care reform and war.

According to the act authorizing the FDA to make the regulation:

a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.

Fortunately for cigarette aficionados, the law is apparently widely flouted, especially on the Internet. However, even these sources may soon dry up–the FDA has been sending warning letters to those vendors found violating the law.

The FDA claims that seventeen-year-olds are three times as likely to smoke flavored cigarettes when compared to twenty-five-year-olds. Furthermore, since many smokers begin as teens, the agency reasons that removing flavored cigarettes from the market will prevent many smokers from ever taking up the habit in the first place. While it has not yet banned other types of flavored tobacco, such as flavored pipe tobacco, flavored cigars, or shisha, the FDA has stated that it is studying those products.

On Thursday, U.S. District Court Judge Joseph H. McKinley of Kentucky rejected tobacco companies’ arguments for a preliminary injunction designed to halt the ban; however, the case will proceed. Tobacco companies have argued that the new regulations on packaging and flavoring restrict their rights to free speech in marketing as well as hindering their ability to participate in the public debate about tobacco.

While tobacco has become increasingly unpopular with the public, this latest regulation appears to be an instance of over-regulation and a stepping stone to even greater restrictions on Americans’ liberties. Even if seventeen-year-olds are more likely to choose flavored tobacco, the FDA has not shown that making flavored cigarettes unavailable to everyone will prevent these smokers from simply switching to a different tobacco product. Meanwhile, legitimate smokers of flavored tobacco must sacrifice their favorite cigarettes to achieve a vague “save the children” policy goal.

Most worrisome is the FDA’s statement that it is considering wiping out other forms of flavored tobacco. Some types of tobacco, such as shisha, are always flavored. Were the FDA to extend this ban to all other tobaccos, thousands of hookah bars across America would be forced to close their doors. If America’s other experiences with prohibition are any example of what’s to come, pushing flavored tobacco underground will surely do more harm than good.

Brian Van Wyk

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