by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown Law; Co-Faculty Advisor, Georgetown University Law Center ACS Student Chapter
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.
The FDA and the White House, in short, apparently believe just what the odd announcement I posited at the outset would suggest: it is a really close case whether reducing tobacco use is a good idea. Never mind that people addicted to tobacco use tobacco mostly to forestall the displeasure of not feeding their addiction. Never mind that most people who become addicted to tobacco start using tobacco products as adolescents, when fine balancing of present pleasures against future risks is elusive. No matter. The FDA and the White House still apparently believe decisions about tobacco use are the product of rational analysis, and that rational analysis just might favor tobacco.
The fact that the strange FDA/White House analysis is buried deep in regulatory documents that few read, and further hidden in soothingly arcane language like "the welfare gain ratio," does not make it any more palatable. In fact, the government's two faces on this topic – loudly recommending against tobacco use while quietly countermanding this message – are troubling in and of themselves, especially in an administration publicly committed to openness and transparency.
As the comment period on the FDA's proposed rule on tobacco products draws to a close, the FDA and the White House should drop the bizarre suggestion that the pleasure of continued addiction should be weighed in the same scales – and at close to the same level – as the risks to health and life the addiction poses.
It is worth remembering that White House review of agencies' rules, including the FDA's rule on tobacco products, takes place at the direction of President Obama. Maybe someone should ask him if the FDA/White House analysis of the balance between lost pleasure and lost health and life is sensible. I very much doubt this is how he advises his daughters when it comes to tobacco use: it may be good, it may be bad, it's a close case, you make the call. If this isn't what he says in private, perhaps it isn't what the FDA and OMB should suggest in public.
[image via Wikimedia Commons]