Supreme Court FDA Can’t Regulate Tobacco

Supreme Court FDA Can’t Regulate Tobacco

Supreme Court: FDA Can’t Regulate Tobacco
But Calls Smoking ‘Most Significant Threat to Public Health’

The government lacks the authority to regulate tobacco as an addictive drug, even though tobacco use may be “the single most significant threat to public health,” the Supreme Court said today.

The 5-4 ruling, which threw out the Clinton administration’s main anti-smoking initiative, said Congress did not authorize the Food and Drug Administration (FDA) to regulate tobacco. President Clinton and others immediately said Congress should pass a law letting the FDA reinstate its rules cracking down on cigarette sales to minors.

“If we are to protect our children from the harms of tobacco, Congress must now enact the provisions of the FDA rule,” Clinton said in a statement issued while he was traveling in India.

Victory for the industry

But Mark Smith, spokesman for Brown & Williamson Tobacco Corp., welcomed the ruling.

“Business and industry throughout the nation ought to breathe a sigh of relief. The highest court in the land has confirmed that a federal agency cannot, on its own, go beyond its limits of authority set by Congress,” he said.

Justice Sandra Day O’Connor, writing for the court, said, “By no means do we question the seriousness of the problem that the FDA has sought to address.

“The agency has amply demonstrated that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States,” she wrote.

However, she said, “We believe that Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products.”

The ruling was a victory for an industry that has been under increasing pressure for selling a product the American Cancer Society calls the leading cause of the disease. Cancer society head John R. Seffrin said he was disappointed by the ruling.

Lawsuit pending

The Justice Department also has a lawsuit pending against the industry, which has agreed to pay the states $246 billion for the cost of treating smoking-related illnesses. Cigarette billboards around the country were taken down last year as part of that agreement.

O’Connor’s opinion was joined by Chief Justice William H. Rehnquist and justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Dissenting were justices Stephen G. Breyer, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. Writing for the four, Breyer said the 1938 federal Food, Drug and Cosmetic Act’s “basic purpose — the protection of public health — supports the inclusion of cigarettes within its scope.”

Senator: Uphold ID requirement

The ruling throws out the FDA’s rule requiring convenience stores and other places that sell cigarettes to require identification from anyone under age 27 seeking to buy tobacco products.

Other FDA rules put on hold earlier would have limited vending-machine cigarette sales to adult-only locations, such as bars, and would have limited cigarette advertising. All 50 states already ban tobacco sales to anyone under 18, and the FDA adopted that rule nationwide.

Sen. Tom Harkin, D-Iowa, said, “I ask the convenience stores, I ask our drugstores, I ask our gas stations [and] other places where kids can buy cigarettes to not pull back. … I urge this community to keep the cigarettes behind the counter, to keep that ID-check sign up” while lawmakers push for federal legislation allowing FDA regulation of tobacco.

Tobacco stocks rise

Vice President Al Gore and several Democratic members of Congress also called for such legislation. Attorney General Janet Reno said, “Nobody can reasonably question the fact that tobacco is harmful to children, and nobody should reasonably question these protections.”

House Majority Leader Dick Armey, R-Texas, said, “I’m not anxious to extend the power and authority to the FDA,” but he also said congressional committees might want to consider it.

On Wall Street, tobacco stocks gained ground after the ruling. Philip Morris rose three-eighths of a point to 20 5/16. Loews Corp., parent of Lorillard Tobacco Co., rose 1 13/16 to 46 15/16 and R.J. Reynolds rose a half-point to 17 by midafternoon.

Manufacturer might accept some regulation

The nation’s largest cigarette maker, Philip Morris Co., said last October that it acknowledges that smoking is addictive and causes cancer. Company executive Mark Berlind today repeated the company’s position that it is willing to discuss some government regulation, perhaps regarding ingredient labeling or efforts to combat youth smoking.

The Clinton administration has called the 1996 initiative the FDA’s most important public health and safety effort in the past 50 years. The best way to cut down on smoking is to reduce the number of teenagers who start, officials contend.

The FDA has said for decades that it lacked the authority to regulate tobacco unless cigarette makers claimed that smoking provided health benefits. But it reversed itself in 1996, citing new evidence that the industry intended its products to feed consumers’ nicotine habits.

Tobacco companies sued, and the 4th U.S. Circuit Court of Appeals ruled in 1998 that Congress did not authorize the FDA to regulate tobacco.

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