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  •   Justices to Decide FDA's Role Over Tobacco

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, April 27, 1999; Page A4

    The Supreme Court agreed yesterday to determine whether the Food and Drug Administration has authority to regulate tobacco products, in a case testing the government's effort to control cigarette makers and prevent young people from smoking.

    The FDA asserted broad authority over tobacco in 1996 in light of evidence that manufacturers deliberately fed smokers' nicotine habits and targeted young people with their advertising. But a federal appeals court panel ruled 2 to 1 last August that the agency went too far by imposing policy that is the domain of Congress.

    By granting the government's appeal for a review of the case later this year, the court is intervening in a high-stakes dispute over the government's crusade against tobacco at a time of escalating legal and political attacks on the industry.

    Government lawyers say the FDA rules restricting teenagers' access to cigarettes and preventing tobacco companies from promoting their products to young people offer "an unparalleled opportunity to curb tobacco use by children." Among the new mandates was a national minimum age of 18 for buying cigarettes and smokeless tobacco and a requirement that retailers check the photo identification of any purchaser who looks younger than 27.

    "Every day, 3,000 young people become regular smokers and 1,000 will have their lives cut short as a result," President Clinton said in a statement applauding the court's decision to hear the appeal. "I remain firmly committed to the FDA rule, which will help stop young people from smoking before they start."

    But the cigarette companies, which had urged the justices to let stand the ruling by the U.S. Court of Appeals for the 4th Circuit, contend that Congress has repeatedly denied the agency authority over tobacco products. The FDA regulation, said the tobacco manufacturers and distributors in their brief, "short-circuit[ed] an ongoing political process."

    "We believe the [lower court] correctly interpreted and applied the laws regarding FDA authority, and we believe that court's opinion will be upheld by the Supreme Court," said Charles A. Blixt, general counsel for R.J. Reynolds Tobacco Co.

    For years the federal government, state officials and individuals have waged war in an effort to discourage smoking, especially among the young, and to hold the industry financially responsible for smoking-related illnesses. A proposed national tobacco bill in the Senate that would have guaranteed federal authority over tobacco collapsed last year.

    But the states and industry soon after signed a more limited pact in which tobacco companies agreed to pay states $246 billion. Meanwhile, individual lawsuits brought by smokers have led to a recent spate of big jury awards against the companies.

    When the FDA asserted authority over tobacco, it brought the cigarette industry under its purview for the first time.

    "Without the Food and Drug Administration there is no governmental agency with the authority to rein in the tobacco industry's marketing to children or to require them to reduce the harm caused by the product," said Matthew Myers of the National Center for Tobacco-Free Kids.

    In 1996, the agency reversed a decades-old stance that it lacked control over tobacco. The FDA decided tobacco products are "drugs" and "devices" under the Federal Food, Drug and Cosmetic Act, partly based on the fact that nicotine in tobacco products "affects the structure or any function of the body." The agency relied heavily on newly disclosed industry documents that showed companies long knew of nicotine's addictive quality and manipulated the drug in cigarettes.

    The FDA said it was focusing on children rather than adults in part because "the sudden withdrawal from the market of products to which so many millions of people are addicted would be dangerous."

    The new rules would ban most cigarette vending machines and self-service displays in stores, as well as require retailers to verify that a purchaser is at least 18 years old. Tobacco advertising would be prohibited within 1,000 feet of schools and playgrounds and limited to black and white text. In addition, tobacco brand names would be kept off some sports gear. During the litigation, the only rule in effect has been the national minimum age and a photo ID requirement for purchasers who look younger than 27.

    A federal district judge upheld the FDA authority to regulate tobacco products as drugs and devices but said the agency lacked jurisdiction to restrict advertising. Last year, a panel of the U.S. Court of Appeals for the 4th Circuit reversed the district court, saying the agency lacked all authority over tobacco products.

    "In the 60 years following the passage of the act [in 1938], the FDA has repeatedly informed Congress that cigarettes marketed without therapeutic claims do not fit within the scope of the act," the appeals court said in an opinion, stressing that "neither federal agencies nor the courts can substitute their policy judgments for those of Congress."

    The high court's decision to take Food and Drug Administration v. Brown and Williamson Tobacco means that at least four justices voted to review the 4th Circuit ruling in the term that begins next fall. But nothing in the justices' past writings make clear how a majority (at least five) would decide the merits of the case that could have broad consequences for Big Tobacco, the FDA and all agencies' asserting authority not explicitly sanctioned by Congress.

    Staff writers John Schwartz and Saundra Torry contributed to this report.

    © Copyright 1999 The Washington Post Company

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