Annals of Health Law
HOW TO REGULATE TOXIC FOODS
smoking are initiatives targeted to adolescents. 143
The Supreme Court has also acknowledged that smoking, and especially
“underage smoking, poses perhaps the single most significant threat to
public health in the United States.” 144 Adolescent feelings of invincibility
make it less likely that they will take the dangers of smoking as seriously as
an adult. 145 But if they make it to adulthood without smoking, it is unlikely
that they will begin smoking thereafter. 146 In recognition of adolescent
vulnerability, the Tobacco Control Act prohibits outdoor advertising within
one thousand feet of a school or playground, mandates that purchasers of
tobacco products be at least eighteen, and prohibits tobacco companies from
sponsoring sports and entertainment events. 147 It also restricts distribution
of free samples of tobacco products148 and bans flavored cigarettes. 149
There are other federal regulatory controls on tobacco use implemented
by various agencies. For example, taxing and spending are also used in the
tobacco context, as they are in other public health contexts. Thus, the IRS
has played a role in taxing tobacco products, 150 while other agencies spend
money to educate the public about the dangers of smoking. 151 The Bureau
143. See, e.g., U.S. DEP’T OF HEALTH AND HUMAN SERV., PREVENTING TOBACCO USE
AMONG YOUNG PEOPLE; A REPORT OF THE SURGEON GENERAL, 5 (1994) (“Nearly all first use
of tobacco occurs before high school graduation; this finding suggests that if adolescents can
be kept tobacco-free, most will never start using tobacco”); Cf. Lorillard Tobacco Co. v.
Reilly, 533 U.S. 525, 564 (2001) (the government has a substantial interest, even a
compelling interest in preventing underage smoking).
144. Food & Drug Administration v. Brown & Williamson Tobacco Co., 529 U.S. 120,
161 (2000); see also Discount Tobacco City & Lottery v. United States, 674 F.3d 509, 519
(6th Cir. 2012) (noting that the government provided extensive evidence that “the use of
tobacco, especially by juveniles, poses an enormous threat to the nation’s health, and
imposes grave costs on the government.”).
145. INSTITUTE OFMEDICINEREPORT, ENDING THETOBACCOPROBLEM:ABLUEPRINT
FOR THE NATION, 93 (2007) (“research suggests that adolescents misperceive the magnitude
of smoking harms and the addictive properties of tobacco and fail to appreciate the long-term
dangers of smoking, especially when they apply the dangers to their own behavior. . . . These
distorted risk perceptions are associated with adolescents’ decisions to initiate tobacco use, a
decision that they will later regret.”).
146. CTRS.FORDISEASECONTROL&MGMT.,OFFICE ONSMOKING&HEALTH,
Preventing Tobacco Use Among Youth and Young Adults, A Report of the Surgeon General,
(“[N]early 9 out of 10 smokers start smoking by age 18, and 99% start by age 26.”).
147. Wigginton, supra note 139, at 536-537.
148. 21 U.S. C. § 387a- 1 (2009).
149. Tobacco product standards, 21 U.S. C. § 387g (a)( 1) (2009).
150. See Jennifer Costello, Comment, The FDA’s Struggle to Regulate Tobacco, 49
ADMIN. L. REV. 671, 678, n 42 (1997).
151. This includes local government initiatives. New York City, for example, has a
variety of tobacco related regulations, including those focused on education. See Legal
Action, N.Y. C. DEPT. OF HEALTH AND MENTAL HYG., http://www.nyc.gov/html/doh/