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Court: FDA Can’t Regulate Tobacco

March 21, 2000

WASHINGTON (AP) _ The government lacks 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 Tuesday, throwing out the Clinton administration’s main anti-smoking initiative.

The 5-4 ruling, a victory for an industry under pressure from numerous lawsuits, said Congress did not authorize the Food and Drug Administration 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.

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.″ She said, ``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.″

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

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

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.″

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 adults-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 drug stores, I ask our gas stations, 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.

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.″

Senate Majority Leader Trent Lott, R-Miss., said some people will want to give the FDA authority to regulate tobacco but ``I’m not one of those. ... I don’t think they do a very good job with what they’re doing.″ House Majority Leader Dick Armey, R-Texas, added, ``I’m not anxious to extend the power and authority to the FDA.″

Tobacco stocks gained ground after the ruling. Philip Morris rose 31 1/4 cents to $20.25 on the New York Stock Exchange; Loews Corp., parent of Lorillard Tobacco Co., rose $2 to $47.12 1/2 and R.J. Reynolds rose 56 1/4 cents to $17.06 1/4. But the U.S. shares of British American Tobacco, which owns Brown & Williamson, were down 62 1/2 cents at $9.62 1/2.

The nation’s largest cigarette maker, Philip Morris Co., said last October that it acknowledged smoking is addictive and causes cancer. Company executive Mark Berlind on Tuesday repeated the company’s position that it was 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 teen-agers who start, officials contend.

The FDA said for decades that it lacked authority to regulate tobacco so long as cigarette makers did not claim 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.

___

On the Net: For current Supreme Court decisions: http://supct.law.cornell.edu/supct/ and click on ``this month’s decisions.″

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