Smoke Screen

Why is Philip Morris supporting FDA regulation of cigarettes?

Philip Morris, the nation’s largest cigarette manufacturer and historically a leading opponent of tobacco regulation, has broken with the rest of the industry and is embracing the government intervention it has spent decades fighting.

Next week, Senate health committee Chairman Ted Kennedy, a longtime Philip Morris nemesis, is holding hearings on a bill that would put cigarettes under the oversight of the Food and Drug Administration. In a shift that has surprised both allies and opponents, Philip Morris lobbyists say they are eager to see the Kennedy bill move forward.

Philip Morris believes in “soup to nuts regulation of the entire industry, and we think that the FDA should be involved in all of that,” says chief legislative counsel Mark Berlind. He says the company wants to see federal oversight of cigarette ingredients, warning labels, manufacturing, and marketing—with, he adds, a few limitations. But more on that later.

Philip Morris’ flip-flop has left the rest of the tobacco industry feeling confused, angry, and jilted. “They are impenetrable to me. Their strategy is impenetrable, their positions are impenetrable,” says a veteran lobbyist for one of the cigarette makers opposing FDA regulation, who spoke on the condition his name not be used. “I find their positions to be nuts.” By endorsing even limited regulation, he says, Philip Morris is opening a Pandora’s box.

The smaller companies—R.J. Reynolds, British American Tobacco, Lorillard, and chewing tobacco and cigar manufacturers—all stridently oppose FDA regulation.   

“It’s as fractured as the industry has been on an issue,” says Robert Campagnino, senior tobacco analyst for Prudential Securities.

It wasn’t so long ago that Marlboro-maker Philip Morris was public enemy No. 1 in Washington. In 1998, Philip Morris spearheaded a $100 million tobacco-industry advertising and lobbying blitz to fend off the legislation sponsored by Sen. John McCain to put the industry under FDA control.

Its fight was successful, and today cigarettes have less federal oversight than hot dogs. But $74 billion in punitive-damage judgments and more than 1,500 current lawsuits can make even the most recalcitrant corporation rethink its strategy. “We want people to know that we are dealing with the issues that arise from this product, and we think that FDA regulation is the best way to get there,” says Philip Morris’ Berlind.

Philip Morris’ quest for governmental approval is not masochistic: There are solid business reasons for it. The company, which commands more than half of the U.S. tobacco market, earned $20 billion last year from domestic cigarette sales. But that market is, literally and figuratively, dying off at 2 percent to 3 percent a year. Philip Morris sees the future in a line of “safe” cigarettes it is developing. An FDA stamp of approval for them would be a major marketing asset. With its commanding share of the U.S. market, the company figures it can work within FDA rules to swamp its smaller competitors.

“The way they calculate it is they are going to lock in their market share so they can go to the investors and say, ‘Look, we’re practically a utility. We can guarantee this revenue stream. There aren’t any risks out there from government, we’ve solved them all,’ ” says James Derderian, who was chief of staff to the Republican-controlled House Commerce Committee during the late 1990s tobacco wars.

Philip Morris’ struggling rivals can’t afford its boldness. R.J. Reynolds is desperate for a larger share of the U.S. market. The company sold off its profitable foreign operations to Japan Tobacco in 1999, leaving it with billions in potential liability and a shrinking customer base. British American Tobacco, while fighting regulation in the United States, is simultaneously pitching itself as a responsible corporate actor abroad, leading the industry’s fight against smuggling and corruption.

The smallest of the opponents, Loews Corp.’s Lorillard Tobacco Co., calls the Kennedy bill the “Marlboro monopoly act.” “It will virtually eliminate our ability to communicate with adult consumers, thereby locking in Marlboro’s dominant position,” says Lorillard spokesman Steve Watson.

Philip Morris doesn’t accept all the regulation proposed in the Kennedy bill. Probably the most controversial change Philip Morris seeks is to limit the FDA’s ability to ban cigarette ingredients. Berlind says Philip Morris just wants to prevent the FDA from making cigarettes so unpalatable that nobody will smoke them. But according to a longtime policy adviser to the company who spoke on condition of anonymity, Philip Morris is really worried that the FDA will ban nicotine. “If they say you can have half as much nicotine, and then have half as much again, and pretty soon you have a product nobody will buy,” says the adviser.

Public-health advocates are dubious of the Philip Morris reversal—they’re especially leery of Philip Morris’ desire to advertise its new smokes as “safe”—but they are starting to accept that the tobacco giant has changed strategy. “In the beginning I was cynical and thought this was a concerted ploy by the industry, but now I do think there is a real split,” says American Lung Association chief lobbyist Paul Billings, who has been fighting the tobacco industry for a decade.

Philip Morris actually began its campaign to get an FDA stamp of approval right after the Bush administration took office, according to lobbyists who do work for the company. Philip Morris tried to get the administration to sponsor an FDA bill, but Bush advisers decided the president should stick to tax refunds and avoid a messy tobacco fight.

Appalled at their former ally’s betrayal, the remaining tobacco companies have banded together to block any potential regulation. They have scored a lobbying coup by hiring former Rep. Tom Bliley, the pro-tobacco ex-chairman of the Commerce Committee. Bliley was once known as “the congressman from Philip Morris” because his district included the company’s Richmond, Va., manufacturing headquarters. Capitol Hill scuttlebutt has it that Bliley and Philip Morris never really got along, so his working for the competition is not a surprise.

“Bliley is there to make sure that members realize that there’s more than Philip Morris in the industry,” says a lobbyist for one of the cigarette makers in the anti-FDA coalition. He says that Bliley, who did not return a call, has been telling his former GOP colleagues that taking up tobacco control legislation is a waste of time because it’s controversial, tedious, and in the end accomplishes nothing.

But as Bliley should know more than anyone, Philip Morris has spent decades (and millions) getting Congress to do what it wanted—which was usually nothing. Now it wants something done, so something may happen.