A few years ago, a liberal law professor friend in New York asked me to help her with a lesson. I was tasked with coming up with a public health policy that students across a wide ideological spectrum could agree upon.
I suggested a policy promoting public health education explaining how vaccines work, as part of an educational campaign to support more widespread acceptance of essential vaccinations.
This proposal met some key criteria in that it was not intrusive, it was based on science as well as common-sense, was always timely and was consistent with broad-based public health goals.
The professor reported back that my topic led to a lively discussion about policy-making and was instructive about how to govern effectively, especially in politically polarized environments.
Now I’d like to propose another public health policy discussion that reasonable people with a wide range of ideologies should also agree upon, but this time, we’d evaluate a policy that should be widely rejected.
The same type of fundamental criteria apply. The proposal should be overly-intrusive, based on neither science or common-sense, particularly untimely, and inconsistent with broader public health policy goals.
A bill so ill-conceived is now being introduced by a member of the New York State Assembly who lives in my Upper West Side neighborhood. Assemblymember Linda B. Rosenthal is proposing to ban flavored nicotine pouches used by adult smokers to quit smoking.
These pouches fall into the category known as non-combustible alternative tobacco products. They contain nicotine derived from tobacco, but unlike other forms of oral tobacco such as chewing tobacco and Swedish-style moist snus, they don’t contain actual tobacco leaf. Nonetheless, they are still regulated as tobacco products and are subject to the strict regulatory process now being implemented by the Food and Drug Administration.
Those rules include a requirement that a product be authorized for marketing only if the agency finds it to be “appropriate for the protection of public health.” And, of course, sales of any tobacco product to anyone under 21 are illegal under federal law.
A basic tenet of regulatory policy can be drawn from the restrictions the Supreme Court has placed on laws affecting constitutional rights, which is that a rule must be specifically and narrowly tailored to achieve a compelling government interest.
In the case of a proposed ban on flavors in nicotine pouches, the stated interest is to prevent youth use of a tobacco product. In that regard, it is quite compelling.
But the rule is certainly not at all tailored to achieve that purpose. The ban would apply to all flavored products, not to minors who would purchases it.
In fact, because these are legally considered to be tobacco products, it is already illegal to sell these products to anyone under 21 in New York, as well as the rest of the country. So essentially the law is a ban on the sale of these products to adults.
Another way to evaluate such a proposal is to ask the questions, we asked in the academic setting:
- Is the proposal intrusive?
- Is it based on science as well as common-sense?
- Is it timely?
- Is it consistent with broad-based public health goals?
Such a ban would certainly be intrusive. It would prevent adult smokers from access to a significantly less harmful alternative to cigarettes. Flavors are essential In order for products such as these to be appealing to adult smokers an alternative to a cigarette. “Intrusive” is a rather gentle term when trying to describe a rule that would take ban access to a product that could save an addicted smoker’s life.
The proposal is also devoid of any science. Although the science is clear, youth should not use any nicotine containing products, a ban on the sale of lower-risk nicotine products to adults has no evidentiary basis and undermines the well-established public health principle of harm reduction. Remember, because sales of tobacco to those under 21 are already illegal, the only legal change this rule would cause is a ban on sales to adults. So common sense, together with our national history regarding prohibition, make it clear that Assemblymember Rosenthal’s proposal fails this test miserably as well.
As New York continues to grapple with public health challenges caused by the Coronavirus pandemic, including the tragic scandal related to the state’s handling of nursing homes during the pandemic, now seems like a strange time to introduce an intrusive and unscientific ban on a product which, even the bills’ supporters recognize, aren’t being used by youth, as were e-cigarettes.
In fact, the regulations on e-cigarettes have given fewer acceptable lower-risk alternatives to adult smokers who can’t or won’t stop using nicotine. So now would be a particularly dangerous time to ban the sale of flavored nicotine products to adults.
Finally, the proposed ban is inconsistent with broader public health policy developed by Congress and now being implemented by the Food and Drug Administration. The FDA has consistently explained that “tobacco products exist on a continuum of risk, with combustible cigarettes being the deadliest.” The FDA is counting on lower-risk non-combustible products, authorized by the agency, to replace cigarettes for adults who need or want to use nicotine. A state ban on products the FDA is currently evaluating as a tool for tobacco harm reduction would undermine the difficult but promising regulatory process.
The pandemic has reminded us that the government has tremendous power over everyone’s lives, even in a freedom-loving democracy as ours. But there’s a line — there are standards as outlined above that can help us distinguish between rules which promote public health and those which, no matter how noble the stated intention, serve to undermine it.
Originally published here.