For years I've argued that a bill authorizing the Food and Drug Administration (FDA) to regulate tobacco products is bad for consumers. I've said the Family Smoking Prevention and Tobacco Control Act, which Congress is once again considering, would stifle competition, raise prices, reduce variety, block the flow of potentially lifesaving information, and impede the introduction and promotion of safer tobacco products.

Such arguments have attracted remarkably little attention, given that consumer protection is the main rationale for FDA regulation. Now I realize my mistake: I should have said the bill was racist.

In my defense, I did not realize until recently that the bill was racist. Then again, neither did the people making that argument.

Take Joseph Califano, who has been a vociferous opponent of smoking since he served as Jimmy Carter's secretary of health, education and welfare. Despite his longstanding interest in the issue, it seems Califano never got around to reading the tobacco bill, which was first introduced in 2004, or at least did not notice a provision he now deems outrageously discriminatory.

Califano told The New York Times his eyes were opened by Louis Sullivan, secretary of health and human services under George H.W. Bush, who called him to complain that the bill bans all cigarette flavors except menthol. It's not clear why Sullivan only recently got riled up about this provision, which anti-smoking activists have been murmuring about for years.

It may have had something to do with a May 13 New York Times story headlined Cigarette Bill Treats Menthol With Leniency, which reported that "some public health experts are questioning why menthol, the most widely used cigarette flavoring and the most popular cigarette choice of African-American smokers, is receiving special protection as Congress tries to regulate tobacco for the first time." The front-page article quoted William S. Robinson, head of the National African American Tobacco Prevention Network, who explained that his organization and other anti-smoking groups had gone along with the menthol exemption because it was necessary to placate Philip Morris, the only major cigarette maker supporting the bill.

Philip Morris sells a lot of menthol cigarettes, but the flavors forbidden by the bill are offered only by its competitors. The bill's flavoritism is of a piece with its general tendency to help the industry leader maintain its market dominance. Continued...