Clinton set to OK curbs on tobacco Proposed FDA rules will restrict marketing of cigarettes to teens

Political repercussions?

Tobacco companies, ad agencies expected to challenge in court

August 22, 1996|By Lyle Denniston and Carl M. Cannon | Lyle Denniston and Carl M. Cannon,SUN NATIONAL STAFF

WASHINGTON -- President Clinton is ready to launch the federal government's sweeping assault on cigarettes and smokeless tobacco, treating them as carriers of an addictive drug -- nicotine, the White House said yesterday.

The campaign, aimed primarily at the public promotion and advertising of tobacco, could have major political repercussions, because Clinton and Republican rival Bob Dole fundamentally disagree on the government's power to try to control smoking by discouraging tobacco sales.

As early as tomorrow, officials confirmed, the president is expected to sign an executive order to bolster the Food and Drug Administration's authority. The order will let that agency begin enforcing a year-old plan to regulate the marketing of tobacco with the aim mainly to protect teen-agers.

The president's action awaits final clearance by the Office of Management and Budget of the new FDA rules on tobacco regulation, said White House press secretary Mike McCurry.

Those rules were sent to the White House on Tuesday. McCurry told reporters that the core of the new campaign will be to regulate nicotine "in some fashion" as a drug contained in cigarettes and in smokeless tobacco. With that as the legal basis for FDA to act, the agency would then seek to restrict promotion of those items to teen-agers.

Several sources -- other government officials and outsiders who claimed to know what was in the package -- said the White House was making plans to act tomorrow, and that final regulations were not likely to be changed greatly from the FDA's proposed version made public a year ago. The FDA is likely to put its new rules into effect in stages, rather than at once.

White House and Clinton political campaign officials have organized daily events in the week before the Democratic National Convention to put a spotlight on leadership, to counter GOP claims that the president does not carry out his promises and shifts ground often.

On Monday, Clinton pitched in to rebuild burned-out black churches in Tennessee. Tuesday, he signed into law a minimum wage bill. Yesterday, he signed a bill making health insurance portable for Americans who change jobs but have a pre-existing medical condition. Today, he is set to sign a sweeping overhaul of the nation's welfare system.

Contrast with Dole

White House political advisers believe that Clinton's anti-tobacco campaign works in his favor in two ways.

It reminds voters that Dole and the Republican Party have accepted donations from tobacco companies, and that Dole and the GOP do not support FDA control of nicotine. Dole also has said he doubts that cigarettes are addictive.

And it serves to blunt recent GOP criticism that the Clinton administration has not been tough enough on teen drug use. "Tobacco is a drug," one administration official said yesterday.

Here are the key planks in the anti-tobacco campaign, as outlined in August 1995 by the FDA:

* Nicotine would be officially designated a drug, subject to FDA control, based on the view that it is "intended to affect the structure or function of the body" through chemical change.

* New restrictions would be aimed primarily at protecting minors, not adults.

* Regulations would apply only to cigarettes and smokeless tobacco, classifying them as "drug delivery systems," and would not apply to cigars or pipe tobacco.

* A new federal minimum age of 18 would be set for buying cigarettes or smokeless tobacco, and buyers could be required to prove their age.

* Vending machines for those two products would be banned, as would free samples, mail-order sales and self-service displays.

* Ads in publications catering to teen-agers could use only words, not graphics.

* All outdoor ads would be banned within 1,000 feet of any school or playground.

* Cigarettes and smokeless tobacco products could not be promoted on T-shirts and hats, and tobacco brand names could not be used to sponsor sporting events.

* The plan would last for seven years, with the goal of cutting the consumption of tobacco by those under age 18 in half. If that goal were not met, the FDA would consider new restrictions.

Several sources suggest that the FDA may modify, in its final version, an earlier proposal to require the industry to launch an anti-smoking media campaign and spend $150 million a year on it.

Cigarette companies and advertising agencies and their trade groups are expected to go immediately into a federal court in North Carolina to make a fresh challenge to the FDA's power over tobacco, according to lawyers involved.

Four suits filed last year

Last year, after the FDA's proposal was made public, four lawsuits were filed. The Justice Department tried to have them thrown out on the theory they were premature, because the FDA had not acted in a final way. U.S. District Judge William L. Osteen Sr. of Greensboro, N.C., has not yet ruled on that issue.

But, with release of final rules, Osteen could move directly to rule on the FDA's power to control the marketing of cigarettes and smokeless tobacco products.

Any ruling by Osteen on the issue would go to the 4th U.S. Circuit Court of Appeals in Richmond, Va.

That court already is studying a major test case on the government's authority to regulate tobacco advertising -- a case involving the constitutionality of Baltimore's 2-year-old billboard ordinance designed to protect children from cigarette promotion. The Justice Department has stepped into that case on Baltimore's side.

One key issue in the Baltimore case is whether a Supreme Court ruling in May, providing significant new constitutional protection to advertisers, limits the government's power to regulate tobacco ads and other marketing tactics.

Lawyers for cigarette companies and advertising agencies plan to use that Supreme Court decision in their new assault on the FDA, according to one attorney in Washington.

Pub Date: 8/22/96

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