Tobacco Promotion and the "Private-Enterprise" Doctrine

Given the effects of tobacco upon human health, U. S. public policy should aim, alongside education, to remove the promotion of tobacco products through their advertising.

This faces two basic obstacles:

1. The executives of the tobacco companies are hired and fired by shareholders interested in maximizing profits, and the tobacco industry is able to act powerfully in the political system against its opponents.


2. In the United States, the First Amendment adds a fundamental obstacle to regulation against advertising by a legal and privately owned industry, because tobacco companies can argue effectively that their advertising is constitutionally protected "free speech."

In the face of these obstacles, the most effective policy, in the United States, would be the nationalization of the share-rights in the tobacco manufacturing companies, the vesting of the exercise of these share-rights in the Commissioner of the U. S. Food and Drug Administration, and a statutory requirement that all net profits of the nationalized tobacco companies be used solely for public-health purposes related to tobacco, i.e. medical research, public education, and recouping of medical costs caused by tobacco products.

This approach would have several very large advantages:

1. The Commissioner of the U. S. Food and Drug Administration, through exercise of the share-rights, could set general policies, geared to public health, without the government being involved in the details of company management. These general policies could then include the further points below:


2. All advertising by the tobacco companies, through all channels and strategems, could be ended.


3. The threat by the tobacco companies to invoke the First Amendment against restriction or prohibition of advertising would be circumvented altogether. The government could exercise its own property rights to impose whatever policies it saw fit.


4. The entire problem of resistance from executives responsible to private shareholders, and political resistance orchestrated by a private industry, would be removed.


5. All advertising at the retail level could be ended, without the costs and difficulties of enforcing regulations upon millions of private retailers, for one of the general policies could be to channel tobacco products exclusively through a network of government-operated retail outlets, in line with the system long used by some states for retailing of liquor. These outlets could then include educational videos showing effects of tobacco upon lungs and facial effects of surgeries for throat and mouth cancers. A few pictures can be worth a thousand words of exhortation, against skeptical youth and adults.


6. All export of tobacco products could be ended. There is no moral difference between international traffic in hard drugs and knowingly exporting for profit tobacco-induced cancer, which is what the U. S. has long done.


7. A stability could be assured for the tobacco industry, against any possible further litigation. There could be a one-time settlement, in which compensation to the shareholders would be market value minus some final liability assessment.

The underlying obstacle to such a public-health policy, in the United States, is an American hypnotic spell on behalf of "private enterprise." It is high time for that spell to be punctured.