by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown Law
Imagine a government warning on tobacco products that gave nearly equal prominence to both the pleasures and pains of using tobacco products. The "warning" would tell citizens that whether they should use tobacco products or not was – despite the government's long practice of recommending against such use – actually a pretty close case. Tobacco use is just so pleasurable, it turns out, that its risks – of bad health, of early death – might be worth it.
Or imagine a parent saying the same thing to her child: here are the risks of using tobacco products, she'd say, but here on the other side are the wonderful pleasures. You make the call; it's too close for me to judge.
Despite its strangeness, this is exactly the kind of statement the White House and the Food and Drug Administration have collaborated in propounding in the context of a proposed rule deeming certain tobacco products subject to FDA regulation under the Family Smoking Prevention and Tobacco Control Act. Economists from the FDA and the White House's Office of Management and Budget published a study purporting to estimate the amount by which the health benefits of tobacco use reduction are offset by a loss of the pleasure of using such products. When the FDA's proposed rule on tobacco products went to the White House for review, White House economists, rather than placing this study in the dustbin where it belonged, doubled down on its strange analysis. Indeed, they ended up increasing the FDA's estimate of the extent to which the "lost pleasure" associated with reducing tobacco use offsets the health benefits to be gained.