Monitoring and Exposing Tobacco Industry Interference in U.S. Public Policy

Nichelle Gray, Kathleen Hoke and Doug Matheny

As the United States and the world grapples with the COVID-19 pandemic, it is important to recognize underlying issues that still drastically impair public health. Tobacco use remains the leading cause of disease and early death in the U.S., accounting for 480,000 deaths annually, including 41,000 from secondhand smoke. An early death is usually preceded by years of illness, with the CDC claiming “For every American who dies because of smoking, at least 30 are living with a serious smoking-related illness.”

While the most effective tools for reducing the tobacco pandemic involve public policy, tobacco industry interference continues to be the greatest barrier to enacting effective tobacco control laws. The U.S. Tobacco Industry Interference Index 2020 highlights many ongoing tactics employed by the tobacco industry to defeat, weaken, or delay proposed public health measures so as to maintain or increase tobacco use, ensure that tobacco users remain addicted, and protect and increase their profits.

Although the U.S. has signed but not yet ratified the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC), The FCTC is the basis for the U.S. report. FCTC Article 5.3 mandates protection of tobacco control policy from tobacco industry interference: “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry.”

This report documents how the FCTC can still serve as a valuable guiding instrument for advocacy efforts in the U.S. In the report, the U.S. received an interference score of 66/100, with a higher score demonstrating a higher level of tobacco industry interference. Although the U.S. score improved slightly from 2019 (72/100), this is only a modest improvement. These scores place the U.S. among the worst of the 57 countries participating in the latest global report. The comprehensive instrument, monitoring 20 indicators over seven categories, underscores an unacceptably high level of tobacco industry interference in the U.S.

Specifically, the U.S. stood out as one of the worst performing countries for tobacco industry interference in the category of policy development. For example, the tobacco industry has a constant presence at the federal level in the Food and Drug Administration’s Tobacco Products Scientific Advisory Committee, with 3 non-voting tobacco industry representatives. The U.S. report also highlighted state and local examples of tobacco industry interference, exposing their multi-tiered approach using all available points of entry. This is so pervasive in the U.S. that only a small percentage of occurrences could be included in the report.

For example, legislatures in the county of Maryland have struggled to adopt effective laws to reduce tobacco use, particularly among young people, because the tobacco industry successfully litigated years ago to secure state preemption of local tobacco control. In 2020, local health officials joined with public health advocates to seek a statewide law prohibiting sales of flavored tobacco products, including menthol. Lacking legal authority, local governments pursued statewide legislation but failed to get the protections needed for their communities. The proposed statewide ban on sales of flavored tobacco that had been lauded by the Speaker of the House, the President of the Senate, and other legislative leaders was beaten back by the tobacco industry. This is not the first time the industry won in Maryland. Local public health leaders and community advocates are now prioritizing regaining local authority to curtail industry impact.

The U.S. has a long way to go in recognizing the full scope and impact of the tobacco industry’s destructive behavior. Polling indicates that most Americans are unaware that major U.S. tobacco companies have been found in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). In the 2006 ruling, a U.S. federal court concluded that the companies would likely continue to commit fraud, which has “permeated all aspects of their operations.”

The tobacco industry has not only misinformed the public, but also lawmakers. In fact, a primary purpose of their organized conspiracy to commit fraud has been to influence public policy. After extensive tobacco company appeals, publication of court-ordered “corrective statements” finally began in late 2017. The massive RICO case remains active, with tobacco companies still fighting to avoid placement of the statements at retail points-of-sale.

The corrective statements will do little good without corrective action. Though there have been pockets of progress, all states’ tobacco control laws continue to fall short of best practices. Many existing state tobacco control laws were written or heavily influenced by tobacco companies. As highlighted in the Maryland example, state preemption of local tobacco-related ordinances, which also occurs in 31 states, has been a tobacco industry strategy since the 1980’s.

Many thousands of lives could have been saved if not for tobacco industry interference in lawmaking. Regular monitoring and reporting of such interference is now a moral imperative. By exposing tobacco industry interference, advocates can help neutralize its impact, thereby reinvigorating stalled tobacco control initiatives and accelerating adoption of effective laws. Norms related to tobacco industry interference will change within legislative bodies only when tobacco companies and their allies are held publicly accountable.

As always in tobacco control policy, effective state and local action is essential. The U.S. Tobacco Industry Interference Index 2020 offers eight recommendations to help advance these efforts, scalable and adaptable for every state and community. The time is now. The full report is available here.

Nichelle Gray is the Program Coordinator at Action on Smoking and Health (ASH U.S.), Kathleen Hoke is the Director of the Legal Resource Center for Public Health Policy and Director of the Network for Public Health Law-Eastern Region, University of Maryland Carey School of Law, Doug Matheny is the Programs Manager for State and Local Policy, TSET Health Promotion Research Center.

All authors have no conflicts of interest to declare.

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