Reading the Tobacco and Marijuana Leaves

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


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.