Justices bar U.S. control of tobacco

Clinton had sought to regulate nicotine as a drug under

FDA Congress has sole authority

March 22, 2000|By Lyle Denniston, | Lyle Denniston,,SUN NATIONAL STAFF

WASHINGTON -- Stopping dead one of President Clinton's boldest social policy moves, a deeply divided Supreme Court barred any federal agency yesterday from controlling how cigarettes and other tobacco items are made or sold.

Splitting 5-4, the court said Congress has kept for itself "exclusive control" over policy-making on smoking and health.

Congress, in 94 years of passing laws to keep the nation's food and drugs safe, has never given any government agency the authority to regulate tobacco's health effects, the court majority added.

The ruling gave the tobacco companies a complete victory in a five-year court battle with the Food and Drug Administration, and they praised the result.

Clinton, Democrats in Congress and a wide array of health organizations lamented the outcome and called upon Congress to fill the void left by the ruling. Republicans reacted cautiously to talk of new legislation.

The president, traveling in India, said that "if we are to protect our children from the harms of tobacco, Congress must now enact the provisions of the FDA rule."

FDA's voluminous regulations put strict limits on promotion, advertising and retail sales of cigarettes and chewing tobacco, banned sales of those items to anyone under 18 and set up an identification-check system. All were aimed at keeping cigarettes and chewing tobacco away from children, lest they grow up addicted to nicotine with its health risks.

Within minutes after the court assembled on the bench yesterday, Justice Sandra Day O'Connor delivered the decision in a lengthy but matter-of-fact recitation from the bench, then yielded to Justice Stephen G. Breyer, who followed with a businesslike reading for the dissenters.

The ruling ends a maneuver, begun by the Clinton administration more than five years ago, to assert regulatory power over tobacco for the first time in the history of federal monitoring of drugs.

The administration's plan -- to treat nicotine as a drug and cigarettes and chewing tobacco as devices for delivering that drug into the human body -- is not included in the FDA's powers, the court ruled.

Accepting almost all of the tobacco industry's legal arguments against government regulation, O'Connor's majority opinion said: "The inescapable conclusion is that there is no room for tobacco products within the regulatory scheme" that Congress has set up for drugs.

O'Connor's opinion did not dispute that tobacco is unsafe, and it said the court was not questioning "the seriousness of the problem."

She said the FDA "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."

But "no matter how important, conspicuous, and controversial the issue," a government agency can regulate something only if it has "a valid grant of authority from Congress. Congress has not given the FDA the authority that it seeks to exercise here," she wrote.

A key component of the majority's reasoning was that because the FDA has found that cigarettes and chewing tobacco are basically unsafe and that no way can be suggested on how to use them safely, government regulation would necessarily mean they had to be banned, and Congress has not allowed such a ban.

Under the law, O'Connor said, the FDA can allow a drug to remain on the market only by determining it to be safe. The court rejected the agency's argument that tobacco could be left on the market, even if unsafe, because removing it would cause a health crisis from addicted smokers trying to withdraw or turning to a black market for tobacco.

The decision excludes the FDA and other federal agencies from any role in trying to protect the health of smokers and users of chewing tobacco -- unless Congress passes a law to create such a role.

It leaves smokers and their relatives free to continue suing the industry for allegedly causing disease and death, and for government agencies to use the courts to try to recover payments for smoking-related benefits.

The ruling does not disturb the significantly narrower restrictions on cigarette sales that the industry agreed to accept in late 1998 when it settled lawsuits by 46 states, including Maryland.

Nor does it interrupt state laws forbidding minors to buy cigarettes, or six federal laws passed since 1965 that ban tobacco ads on radio and television and require cigarette labels and advertising to warn of the health risks.

The court's much-anticipated decision -- one the justices had been been weighing for nearly four months -- immediately shifted the focus of the national debate over smoking and health to these forums.

Congress, where anti-smoking legislators and lobbyists from anti-tobacco organizations immediately called for new legislation to allow FDA to act to put cigarettes and smoking tobacco out of the reach of anyone under 18.

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