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A Question of Intent: A Great American Battle with a Deadly Industry

How should we regard the tobacco industry? Specifically, how should we view its actions before the late 1990s, when a combination of regulatory and litigation onslaughts changed its very nature? Before that time, was the industry engaged in dishonestly hooking the public on a product that it knew to be deadly, or was it legitimately catering to human desires?

My own view is that once the federal government mandated cigarette warning labels in 1965, people had adequate notice of the risks of smoking. This was so even though the industry continued to argue there was no proven link between smoking and disease, and even though tobacco ads were full of healthy, vibrant people. Perhaps there was a time before 1965 when the industry was culpable, but not after the advent of health warnings.

But even this view leaves many open questions. I didn’t expect to have them all resolved by David Kessler’s book, but I was surprised at how few answers it actually provides.

A Question of Intent is Kessler’s account of his campaign, as head of the Food and Drug Administration (FDA), to regulate tobacco. It begins with his appointment as commissioner in 1990 and ends a decade later, when the Supreme Court ruled that the FDA does not have the power to regulate tobacco as a medical drug or device. The FDA had considered and rejected regulating tobacco before 1990, but it was Kessler who came up with the innovative characterization of smoking as a pediatric disease. His book focuses on his hunt for proof of nicotine “spiking”–that is, that the industry chemically manipulated tobacco to raise either the amount or the impact of nicotine, supposedly to make a more addictive cigarette. If nicotine spiking occurred, this would allegedly be evidence that cigarettes were a pharmacological product subject to FDA control.

But is nicotine spiking bad? Higher nicotine, after all, means that a smoker can get the nicotine he craves with less tar, and tar is the real medical poison in cigarettes. In fact, there was a time when some health researchers expressly advocated nicotine spiking as means of reducing the risks of smoking. Kessler, unfortunately, ducks this issue.

The book occasionally reads like a good detective novel, but too often stumbles on details, mostly involving David Kessler. There is hardly a page that doesn’t contain the words “I” or “me,” and Kessler constantly reminds us of his devotion and diligence. Despite this, we get a surprisingly opaque picture of Kessler himself. Consider his description of his childhood ambitions: “Early on, I knew that I wanted to work in Washington. I also knew that I would become a doctor.” Now the desire to be both a politician and a physician is an unnatural combination of youthful career plans, and begs for explanation. Kessler provides none.

While industry-bashing is to be expected in such a book, Kessler sometimes contradicts his own jibes. He repeatedly criticizes tobacco companies for portraying the FDA’s proposal as a prelude to total prohibition. But as Kessler later admits, the industry wasn’t the only one predicting prohibition; many FDA staffers, including Kessler himself at times, believed that regulation would inevitably lead to a ban.

Kessler does offer, perhaps unintentionally, some arguments for deregulation. He notes that the FDA, in its focus on preventing the approval of unsafe drugs, tended to ignore the risks of delaying needed drugs: “Speeding access to urgently needed products was not nearly so deeply ingrained in our culture. . . . Many drug reviewers had become accustomed to working at an academic tempo, largely devoid of deadline pressure.” Nonetheless, Kessler doesn’t waver in defending the agency’s power.

Similarly, he notes how the very possibility of FDA regulation may have restricted tobacco industry research decades ago. Executives feared that their pharmacology studies might lead not only to a better, safer cigarette, but also to FDA jurisdiction. So on the advice of industry lawyers, the research was carried on clandestinely. As Kessler’s book demonstrates, the lawyers were right–the FDA seized on those studies to build its case.

But the real problem with this book isn’t Kessler’s pro-regulatory ideology, but his refusal to even consider whether cigarettes might not satisfy some legitimate human need. His only explanation of how tobacco executives live with themselves is that they “compartmentalize” their jobs. His only explanation of the Supreme Court’s ruling is that it “followed ideological lines.” His inability to comprehend other points of view is maddening. How would he respond to Cornell Professor Richard Klein’s view, in his book Cigarettes Are Sublime (1993), that “cigarettes, though harmful to health, are a great and beautiful civilizing tool and one of America’s proudest contributions to the world”? And if you asked Dr. Kessler whether it was possible that the industry, through all its playing around with nicotine, was just trying to produce a better smoke, he’d probably be dumbfounded.

Sam Kazman is general counsel of the Washington-based Competitive Enterprise Institute.

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