TOB Magazine

Reading the

Tobacco

and

Marijuana

Leaves

SAN FRANCISCO RECENTLY voted to eli-

minate the sale of all flavored tobacco prod-

ucts starting in April 2018. Consenting adults

will no longer be able to smoke shisha tobacco

at a hookah bar, purchase menthol cigarettes,

or obtain numerous types of cigars and other

tobacco products. While the city is busy fighting

the evils of tobacco, it has simultaneously creat-

ed the Office of Cannabis so it can regulate and

issue permits for recreational marijuana sales.

The idea that marijuana is now legal in Cali-

fornia for “recreational” use is somewhat of a

charade. Anybody who has lived in California

for the last 20 years knows that for all intents

and purposes marijuana has been recreational-

ly legal since the vote in 1996—since then, any

18-year-old with $39 has been able to obtain

the requisite medical marijuana card.

The Bay Area has long been at the fore-

front of legalizing marijuana. On a visit to the

Bay Area, tourists traveling from Fisherman’s

Wharf to Market Street pass numerous mar-

ijuana dispensaries. These offer the consum-

er marijuana in a variety of flavors, including

marijuana-infused cherry gummies, brownies

and chocolate-chip cookies, as well as flavored

marijuana vaporizers. Ironically, all of these

flavored candy and dessert-style products are

legal (and will continue to be even after San

Francisco’s new flavored tobacco ban) because

the products contain marijuana, not tobacco.

This comparison is not meant to cast asper-

sions on the marijuana industry. To the con-

trary, the arguments that proponents provide in

support of marijuana apply equally to tobacco

products, flavored or not. If an informed, con-

senting adult who understands the risks asso-

ciated with smoking marijuana chooses to do

so (without causing risk to third parties—

e.g.

driving while intoxicated), he or she should be

permitted to do so. Similarly, if an informed,

consenting adult chooses to smoke a menthol

cigarette, go to a hookah bar or indulge in a

grape-flavored cigar, he or she should be per-

mitted to do so.

Having recently attended attorney confer-

ences for both tobacco and marijuana, I wit-

nessed the common criticisms and underlying

principles shared by each industry. Ironically,

both industries reach out to both major par-

ties hoping to gain support—the tobacco com-

panies hoping for conservative allies, and the

marijuana industry looking for liberal backing.

One principle that both industries regular-

ly cite, however, is the same: Preclude youth

from using the products, inform adults, and

then allow consenting adults to make their

own decisions, flavored or not.

While politics on the local level have become

increasingly anti-tobacco and more sympa-

thetic to marijuana, politics on the federal level

may be doing the reverse. With the advent of

the Trump administration, the tobacco indus-

try appears to have gained some friendlier ears.

For example, the tobacco industry believes that

President Trump’s appointees—Secretary of

Health and Human Services, Tom Price, as

well as the new commissioner of the U.S. Food

and Drug Administration (FDA), Dr. Scott

Gottlieb, and his nominee for solicitor gener-

al, Noel J. Francisco—will all be more willing

to hear concerns in connection to the current

federal regulatory scheme with regard to tobac-

co. Marijuana, on the other hand, has gained a

potentially tough adversary in Attorney Gener-

al Jeff Sessions. To be clear, neither tobacco nor

marijuana have proponents in government. At

best, each industry has a few individuals on both

sides of the aisle who are willing to stand behind

the individual liberty argument, among others.

By way of background, before his appoint-

ment, Secretary Price represented Georgia’s

6th Congressional District beginning in

2005; prior to that, he practiced as an ortho-

pedic physician in Atlanta. While serving in

Congress, Price voted against a 62-cent ciga-

rette tax hike and against the Family Smok-

ing Prevention and Tobacco Control Act

(“Tobacco Control Act”). The Tobacco Con-

trol Act passed and gave the FDA the author-

ity to regulate a host of tobacco products—

and eventually led to its May 2016 deeming

regulations. Now, in his new role, Secretary

Price has oversight over the organization

that is attempting to exert extensive regula-

tion over the tobacco industry, the FDA—an

authorization of power that Secretary Price

voted against seven years earlier.

Similar to Price, FDA commissioner Dr.

Scott Gottlieb authored a

New York Post

article

in which he claimed that the FDA deeming

cigars to fall under the Tobacco Control Act

would be an overreach of the FDA’s power and

would needlessly result in the loss of tens of

thousands of jobs.

President Trump’s nominee for the position

of solicitor general, Noel J. Francisco, is also

no stranger to the tobacco industry. He was a

partner at the Washington, D.C., powerhouse

law firm, Jones Day, where he represented R.J.

Reynolds on several matters. These included

Discount Tobacco City & Lottery Inc. v. United States

(holding that the FDA’s ban on the use of col-

or and imagery in most tobacco advertising

was grossly overbroad and violated the First

Amendment) and

R.J. Reynolds Tobacco Co. v.

FDA

(holding that the FDA’s final rule requiring

manufacturers to display graphic health warn-

ing labels on the front and back of cigarette

packaging violated the First Amendment).

Attorney General Jeff Sessions, on the other

hand, has made several infamous quotes about

marijuana, including that he felt marijuana

was “only slightly less awful” than heroin.

Sessions’ seemingly anti-marijuana view has

left application of the Cole Memo—a memo

issued under Attorney General Eric Holder

that provided a guide for state marijuana dis-

pensaries to sell marijuana and avoid federal

prosecution—in doubt. At the same time, Ses-

sions’ more recent comments appear to sug-

gest the Cole Memo will stand.

Like the marijuana industry, the tobacco

industry does not seek the elimination of tobac-

co regulations. To the contrary, most in the tobac-

co industry seek strong and principle-based reg-

ulations that prevent youth consumption but

allow informed, consenting adults to make

decisions on how they choose to live their lives.

Unfortunately, as I follow each industry closely,

it appears all we can expect on these issues is

more politics and less informed and thoughtful

dialogue about government interaction in these

two industries.

Noah Steinsapir is the general counsel

for Kretek International.

LEGAL MATTERS

[ NOAH STEINSAPIR ]

[ 84 ]

TOBACCO BUSINESS

[

SEPTEMBER

OCTOBER

17 ]

At the local and federal levels, attitudes about

these two “very different” plants are shifting.