New Push Grows for FDA Regulation of Tobacco

After years of falling short, advocates of requiring the Food and Drug Administration to regulate tobacco are again waging that fight in Congress -- and this time, they say, the odds are in their favor. Really.

A bipartisan group of lawmakers introduced legislation last week to grant the FDA authority over the manufacturing, marketing and sale of tobacco products, including the power to restrict advertising, require stronger warning labels, and regulate the amount of nicotine and other ingredients. The agency would not be able to ban tobacco.

"Congress cannot in good conscience allow the federal agency most responsible for protecting the public health to remain powerless to deal with the enormous risks of tobacco, the most deadly of all consumer products," said Sen. Edward M. Kennedy (D-Mass.), the lead sponsor and chairman of the Senate Health, Education, Labor and Pensions Committee.

"This bill is long overdue," said Rep. Henry A. Waxman (D-Calif.), chairman of the House Government Reform Committee and the lead sponsor in the House. "Despite the fact that cigarettes kill over 400,000 Americans each year, and despite the fact this is the most toxic substance that is sold legally and when used as intended has the potential to kill, there is virtually no regulation of tobacco by the federal government."

Rhetoric like this has been flying around Capitol Hill for years. The FDA claimed the authority to regulate tobacco in the mid-1990s during the Clinton administration, but the effort was challenged by tobacco companies and overturned by the Supreme Court in 2000. What followed were several attempts to pass legislation in Congress, many of which attracted broad-based support -- including from cigarette maker Philip Morris USA. But invariably the bills hit an impasse and died. Legislation to regulate tobacco won approval in the Senate in 2004, but GOP leaders never allowed a vote on it in the House, the bill's supporters say.

Now, with Democrats in control of Congress for the first time since 1994, proponents say the legislation has a far better chance.

"This is the year when we can pass meaningful legislation," said Rep. Thomas M. Davis III, the lead GOP sponsor in the House, whose father died of emphysema.

Sen. John Cornyn (Tex.), the top Republican sponsor in the Senate, said 54 percent of smokers take up the habit before age 18. The legislation "is the best way to address the public health concerns and the marketing concerns we have about children being targeted and addicted to a drug like nicotine," he said.

The FDA would have the power to end vending-machine and self-service sales, prohibit tobacco advertising near schools and playgrounds, ban fruit- or candy-flavored cigarettes and stop cigarette makers from using claims such as "light" or "low-tar" unless they are scientifically proven.

The White House, generally no fan of expanding government regulation, referred calls to the Department of Health and Human Services, where a spokeswoman said officials were still reviewing the legislation. It is supported by groups such as the American Heart Association and the Campaign for Tobacco Free Kids, and it once again has the backing of market leader Philip Morris USA, maker of Marlboro cigarettes.

"In the long term, it's good for our business if fewer people get sick and die from smoking," said Steven C. Parrish, a senior vice president of Altria Group Inc., Philip Morris's parent company.

But R.J. Reynolds Tobacco Co. plans to fight the legislation, saying it would help entrench Philip Morris's dominant position by limiting advertising opportunities, something Philip Morris denies.

"If you eliminate ways for competition to communicate with an audience, common sense and logic tells you that the primary beneficiary of that is the marketplace leader," said Reynolds spokesman David Howard, who added that the company was open to discussing "reasonable" regulation.

Sen. Richard Burr (R-N.C.) has said he opposes the bill. Another potential roadblock is Senate Minority Leader Mitch McConnell (R-Ky.), whose state is also home to many tobacco growers.

"I am concerned that giving the FDA the authority to regulate tobacco will have a major impact our farmers, therefore, I will closely review the legislation . . . to ensure that it not only protects our children but also the farmers, their families and the communities they support," McConnell said in a statement.

Daniel E. Smith, president of the American Cancer Society Cancer Action Network, a lobbying group, predicted "a heck of a fight with Senator McConnell." But Smith said Cornyn's support should help garner the 60 votes needed to avoid a filibuster in the Senate.

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, said, "This will be a dogfight because the opposition is well funded and will stop at no end, but it appears there is now a broad bipartisan consensus to push it over the top."