Exploring Tobacco Control, Regulatory Science, and Legal Doctrine
Together the Center for Law, Health & Society at Georgia State University College of Law and the Tobacco Center of Regulatory Science at the School of Public Health hosted professor Micah Berman of The Ohio State University as part of a spring seminar series on tobacco control funded by the National Institutes of Health and the Food and Drug Administration Center for Tobacco Products. Berman presented two sessions.
Berman opened the first session, “The Tobacco Control Act and the FDA’s Tobacco Regulation: How Science Informs Policy,” with a picture of a drop-side baby crib, a model that has resulted in the deaths of more than 30 babies and toddlers since 2000. He used this example to demonstrate how data can inform policy – the Consumer Product Safety Commission banned the sale or donation of these cribs in 2011.
The FDA’s role in tobacco product regulation, said Berman, is like the crib ban, but on a much larger scale. Tobacco use is the leading cause of death in the United States, with one of every five deaths in the United States each year associated with smoking cigarettes or second-hand smoke. The Tobacco Control Act gives the FDA authority to regulate cigarettes and also provides for deeming other tobacco products subject to FDA regulatory authority.
“In the last few years, e-cigarettes and other products have gained a strong hold in the tobacco market,” Berman said. “It is inevitable that the tobacco industry will challenge any regulations of tobacco products. Using regulatory science to analyze data on the health impact of various regulatory options can help the FDA craft rules that will stand up to these legal challenges.”
In the second session, “Manipulation, Autonomy and the First Amendment,” Berman examined the implications of the U.S. Supreme Court’s commercial speech doctrine for public health. The doctrine is fundamentally based on the premise that advertising is entitled to First Amendment protection because it communicates information to consumers, allowing them to make more informed, autonomous choices. However, Berman described, many advertisers use marketing methods to elicit emotional and subconscious responses rather than communicate information.
“Marketing tactics such as using humor, product placement and tugging on emotions do not contribute ‘information’ so that consumers can make informed choices, but instead play on cognitive limitations or biases,” Berman said. “The court should revisit whether the manipulative marketing practices should be entitled the same protections as other commercial speech under the First Amendment, particularly when what is being promoted is harmful to the public’s health.”
“Professor Berman’s presentations highlighted the role of law in the emerging field of regulatory science,” Kyle Gregory (J.D./M.S.H.A ’14), a Georgia State Tobacco Center of Regulatory Science fellow. “His research demonstrates an alternative career path for students interested in using their law degrees to influence policy.”