Justices to decide tobacco controls

High court to review FDA's authority to regulate products, ads

April 27, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Taking on a struggle that is likely to determine the fate of the tobacco industry, the Supreme Court agreed yesterday to rule on the Clinton administration's sweeping plan to control how cigarettes and chewing tobacco are made and sold.

Under that plan, aimed mainly at protecting youths, the Food and Drug Administration would restrict minors' access to tobacco items and control the marketing of those products.

In the future, the agency could regulate the ingredients of cigarettes and smokeless tobacco, probably to reduce or eliminate nicotine.

After an eight-year study, the FDA ruled in August 1996 that the nicotine in cigarettes and chewing tobacco is a drug because it is designed to change the human body's function and causes addiction. Those two forms of tobacco, the FDA determined, are devices intended by the industry to deliver nicotine to the body.

The agency chose not to impose a total ban on those products. But if it succeeds in the Supreme Court and gains the clear authority to regulate tobacco, it would have that power in reserve, should it decide that a ban is necessary toprotect public health. That prospect represents an ultimate threat to the industry's existence.

Even if the agency decided not to ban tobacco products, outside groups that favor a total ban could sue to try to force its hand.

The industry is gambling heavily on the outcome of the dispute now before the court. Tobacco companies argue that if the government wins authority to regulate tobacco, it will have no choice but to ban all products made of tobacco, since the FDA has already ruled that tobacco products cannot be made safe.

Health groups have called that argument a "smoke screen," saying that a ban would be premature anytime soon. The FDA itself has concluded that a major public health problem could arise if millions of addicted tobacco users were forced to withdraw, or turn to a black market where products would be even more unsafe.

The Supreme Court's decision to step into the dispute was a mild surprise. Many legal observers had predicted that the justices would bypass the administration's appeal, because the issue has been ruled on so far only by one federal appeals court.

The justices, in their first look at the appeal, voted to review it, with a hearing likely in November. A final decision is probably at least a year away.

Had the court refused to hear the case, it probably would have meant the end of the FDA's campaign, begun in 1988, to regulate tobacco products. Before that campaign began, the FDA for decades had taken the position that it had no authority over tobacco. But under pressure from health groups, and with the revelation of industry secrets about how tobacco products were made and promoted, the FDA changed its mind.

President Clinton said yesterday that he was "very pleased" that the court had agreed to take up the case.

"I remain fully committed to the FDA rule, which will help stop young people from smoking before they start by eliminating advertising aimed at children and curbing minors' access to tobacco products," Clinton said.

The Justice Department had told the court that the case "is of urgent public importance," presenting "an unparalleled opportunity to curb tobacco use by children." Its appeal has the backing of 39 states, including Maryland. The states argued that they need the federal government as an ally in their war on tobacco use by youths.

The industry countered that the fate of tobacco must be left solely in the hands of Congress, which has never delegated to the FDA any authority to oversee tobacco products. Brown & Williamson Tobacco Co., for example, complained yesterday that the FDA was guilty of "overreaching" and predicted that the court would rule against the FDA.

Between now and the time the court rules, two of the FDA restrictions will remain in effect: a ban on the sale of cigarettes and chewing tobacco to youths under age 18, and a requirement that anyone under age 27 who wants to buy those products show photo identification. All other restrictions are temporarily blocked.

The 4th U.S. Circuit Court of Appeals, in a 2-to-1 ruling in August, said the FDA had no authority to regulate tobacco. If it did, the appeals court majority said, the FDA would have no option but to ban all such products as unsafe, and Congress did not give it the authority to impose such a ban.

"Complying with the statute [governing drug regulation] would trigger a ban on tobacco products, a result not intended by Congress," the appeals court said.

If the Supreme Court ultimately agrees that the FDA has no power in this field, all the restrictions, including the ones now in effect, would be wiped out. The FDA could then gain power over the industry only by persuading the Republican-led Congress to pass a new law -- an unlikely prospect.

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