Capture the Regulator, 2022 Edition

By Chuck Dinerstein, MD, MBA — Aug 03, 2022
Regulatory capture refers to a type of “corruption,” in which a member of a regulatory body goes on to join those they once regulated. It's best thought of as having the fox guard the hen house. Last week, the FDA’s “top” tobacco scientist left for ... Philip Morris International (PMI), the makers of, among other brands, Marlboro cigarettes.
Image by Gerd Altmann from Pixabay

Working for the “opposition” is neither new nor restricted to regulators. Many criminal defense attorneys learned their trade as prosecuting attorneys. And in Washington, sometimes it is more of a revolving, rather than a one-way door, with a regulator coming and going from public service and the private sector with changing administrations.

Matt Holman was the director of the Office of Science at the FDA’s Center for Tobacco Products; Keagan Lenihan was an associate commissioner for external affairs and strategic initiatives and is now VP of governmental affairs and public policy at Philip Morris. This is the second departure from the FDA to Philip Morris in the last few weeks.

What do these regulatory captures bring to the table?

In general, there is no smoking gun bribery involved; instead, there is an exchange of a government for a corporate salary, with the corporation acquiring two priceless quantities. First, they inherit the regulator’s Rolodex (to those less ancient than I, a listing of phone numbers) – the access to, in this case, significant players within the FDA. A good corporate lobbyist will have those numbers but not such ready access, so purchasing the regulator’s work network has some advantages. More importantly, the corporations acquire the intrinsic knowledge of the regulator concerning how specific regulations were developed and their strengths and weaknesses. Knowing the weaknesses makes reducing the corporate consequences of regulation easier. It is no different than the ads we hear for how to reduce your tax burden offered by former IRS tax enforcement officials.

One of the conditions of the change in employment is that these former regulators cannot appear as PMI advocates for up to two years. But, neither the Rolodex nor the “insider” knowledge is part of that restriction.

He [Holman] said he was drawn to Philip Morris because he viewed the company as being committed to the goal of moving cigarette smokers to noncombustible and less harmful products. … “that’s what really drew my attention to PMI. I’m going there not to help them sell more cigarettes, but the opposite.”

NY Times

Holman’s departure has raised some concerns, although the FDA indicated that he had recused himself from decisions while seeking new employment. The most concerning is the decision in the last month regarding withdrawing JUUL from the marketplace; it is a product of Altria, a PMI competitor.

And then there is Amazon

According to Bloomberg, Amazon hired Judd Smith, the counsel to the Senate Judicial Committee. His work among Republican members of the Senate aided in the drafting and approving of a bill that would restrict Amazon’s ability to sell the “Amazon Basics” brand of products. [1] Judd Smith knows how the bill was cobbled together in committee and how it might be blocked in passage. Of course, like the other former public servants, Smith is not allowed to lobby for Amazon before his previous employers, the Senate Judiciary Committee – that leaves him free to work in the House to block passage of the bill.

Regulatory capture can be seen throughout our federal and state governments; it is a form of corruption. It is not as obvious as a bribe or a quid pro quo, but it still allows vested interests to nudge regulations and laws in their desired direction. Why write about this on a website dedicated to science and health? The Matt Holman HIRE is the more obvious EXAMPLE. But the committees that rule on regulatory science and provide funding for research are equally impacted by regulatory capture – the experts on those committees are reflective of the mainstream consensus or what is wished-for as the consensus so that diversity of views that leads to innovation is stifled.


[1] This is considered an anti-trust violation because Amazon has all of the sales and pricing information for similar products already offered on their website so that they can undercut their competition, who must give them the information as part of their participation in what is generally believed to be a “required” web-facing marketplace.


Sources: FDA’s top tobacco scientist takes job at Marlboro-maker Philip Morrisv Ars Technica

FDA's top tobacco scientist takes job at tobacco giant Philip Morris just weeks after he signed off firm's latest vape product Daily Mail


Chuck Dinerstein, MD, MBA

Director of Medicine

Dr. Charles Dinerstein, M.D., MBA, FACS is Director of Medicine at the American Council on Science and Health. He has over 25 years of experience as a vascular surgeon.

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