Reading the Tobacco and Marijuana Leaves

At the local and federal levels, attitudes about these two “very different” plants are shifting.

Tobacco and Marijuana Leaves

San Francisco recently voted to eliminate the sale of all flavored tobacco products 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 created the Office of Cannabis so it can regulate and issue permits for recreational marijuana sales.

The idea that marijuana is now legal in California 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 recreationally 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 forefront of legalizing marijuana. On a visit to the Bay Area, tourists traveling from Fisherman’s Wharf to Market Street pass numerous marijuana dispensaries. These offer the consumer 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 aspersions on the marijuana industry. To the contrary, the arguments that proponents provide in support of marijuana apply equally to tobacco products, flavored or not. If an informed, consenting adult who understands the risks associated 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 permitted to do so.

Having recently attended attorney conferences for both tobacco and marijuana, I witnessed the common criticisms and underlying principles shared by each industry. Ironically, both industries reach out to both major parties hoping to gain support—the tobacco companies hoping for conservative allies, and the marijuana industry looking for liberal backing. One principle that both industries regularly 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 sympathetic to marijuana, politics on the federal level may be doing the reverse. With the advent of the Trump administration, the tobacco industry 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 general, Noel J. Francisco—will all be more willing to hear concerns in connection to the current federal regulatory scheme with regard to tobacco. Marijuana, on the other hand, has gained a potentially tough adversary in Attorney General 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 appointment, Secretary Price represented Georgia’s 6th Congressional District beginning in 2005; prior to that, he practiced as an orthopedic physician in Atlanta. While serving in Congress, Price voted against a 62-cent cigarette tax hike and against the Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”). The Tobacco Control Act passed and gave the FDA the authority 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 regulation 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 color 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 warning 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 dispensaries to sell marijuana and avoid federal prosecution—in doubt. At the same time, Sessions’ more recent comments appear to suggest the Cole Memo will stand.

Like the marijuana industry, the tobacco industry does not seek the elimination of tobacco regulations. To the contrary, most in the tobacco industry seek strong and principle-based regulations 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.

Story by Noah Steinsapir, the general counsel for Kretek International

This story first appeared in the September/October 2017 issue of Tobacco Business magazine. Members of the tobacco industry are eligible for a complimentary subscription to our magazine. Click here for details.

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