Court: FDA Can't Regulate Tobacco
By Laurie Asseo
Associated Press Writer
Tuesday, March 21, 2000; 12:41 p.m. EST
WASHINGTON –– The Supreme Court ruled today the government lacks authority to regulate tobacco as an addictive drug, rejecting the Clinton administration's main anti-smoking initiative.
Ruling 5-4, the justices said the Food and Drug Administration overreached when it reversed a decades-old policy in 1996 and sought to crack down on cigarette sales to minors.
"We believe that Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products," Justice Sandra Day O'Connor wrote for the court.
"By no means do we question the seriousness of the problem that the FDA has sought to address," O'Connor 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 added, "It is plain that Congress has not given the FDA the authority that it seeks to exercise here."
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 federal Food, Drug and Cosmetic Act allows the FDA to regulate tobacco. "Far more than most, this particular drug and device risks the life-threatening harms that administrative regulation seeks to rectify," he added.
Mark Smith, spokesman for Brown & Williamson Tobacco Corp., said, "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."
The Justice Department had no immediate reaction to the ruling.
John F. Banzhaf of Action on Smoking and Health, which supported the government's appeal, said he was disappointed but not surprised and said the ruling "will put tremendous pressure on Congress, especially during an election year, to ensure that nicotine does not remain the only totally unregulated drug."
On Wall Street, most tobacco stocks gained ground after the ruling. Philip Morris was up 93¾ cents at $20.87½ at late morning on the New York Stock Exchange, where R.J. Reynolds Tobacco was up 43¾ cents at $16.93¾, and Loews, which owns Lorillard, was up $2.12½ at $47.25. But the U.S. shares of British American Tobacco, which owns Brown & Williamson, were down 37½ cents at $$9.87½.
The Clinton administration 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 contended.
The tobacco industry has been under increasing pressure for selling a product the American Cancer Society calls the leading cause of cancer. The Justice Department is suing the industry, which already has agreed to pay the states $246 billion for the cost of treating smoking-related illnesses.
The nation's largest cigarette maker, Philip Morris Co., acknowledged last October that smoking is addictive and causes cancer. The third-biggest company, Brown & Williamson Tobacco, said in April 1999 that smokers "are taking significant health risks."
In February, a Philip Morris Co. executive said the company was willing to discuss some government regulation of the tobacco industry, but that the company still opposed the FDA's effort to regulate tobacco as a drug.
The FDA said for decades that it lacked authority under a 1938 law to regulate tobacco so long as cigarette makers did not claim that smoking provided health benefits.
But it reversed itself in 1996, saying it could regulate tobacco because of new evidence that the industry intended its products to feed consumers' nicotine habits.
All 50 states already ban tobacco sales to anyone under 18. In addition to adopting that as a federal rule, the FDA required stores to demand photo I.D. from all tobacco purchasers under age 27 and limited vending-machine cigarette sales to adults-only locations, such as bars.
Tobacco companies sued, and the 4th U.S. Circuit Court of Appeals ruled in 1998 that the FDA could not regulate tobacco. The court said that decision is up to Congress, which previously has banned broadcast advertising of tobacco, prohibited smoking on airlines and required warning labels on cigarette packages.
During arguments before the Supreme Court last December, Solicitor General Seth Waxman said the FDA can regulate tobacco as a drug because nicotine is "highly addictive" and acts as a stimulant, a sedative and an appetite suppressant, and also feeds smokers' addictions.
Forty states backed the government's appeal.
But the tobacco industry's lawyer argued that if FDA regulation were allowed, the government would be forced to ban tobacco products because they have not been shown to be safe.
O'Connor's opinion noted that the FDA has concluded that cigarettes are unsafe and dangerous. As a result, she said, federal law "would require the FDA to remove them from the market entirely."
"The inescapable conclusion is that there is no room for tobacco products within the (federal law's) regulatory scheme," she wrote. "If they cannot be used safely for any therapeutic purpose, and yet they cannot be banned, they simply do not fit."
Breyer said he did not believe the law would require a ban on cigarettes.
He also said the fact that only 2.5 percent of smokers manage to quit each year "illustrates a certain reality – the reality that the nicotine in cigarettes creates a powerful physiological addiction flowing from chemically induced changes in the brain."
All 50 states have reached settlements in which tobacco companies will pay them $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.
The Justice Department also sued the industry last September, seeking additional billions of dollars to repay federal health-insurance costs.
A Florida jury ruled in a class-action lawsuit last July that the five largest cigarette-makers produced a defective and deadly product. A jury is considering damages that industry lawyers say could exceed $300 billion.
Among the Supreme Court's nine justices, Rehnquist and Scalia are smokers, while Thomas used to smoke cigars.
The case is FDA vs. Brown & Williamson Tobacco Corp., 98-1152.
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On the Net: For current Supreme Court decisions: http://supct.law.cornell.edu/supct/ and click on "this month's decisions."
© Copyright 2000 The Associated Press
Joe
------------------
Joe's Second Amendment Message Board
By Laurie Asseo
Associated Press Writer
Tuesday, March 21, 2000; 12:41 p.m. EST
WASHINGTON –– The Supreme Court ruled today the government lacks authority to regulate tobacco as an addictive drug, rejecting the Clinton administration's main anti-smoking initiative.
Ruling 5-4, the justices said the Food and Drug Administration overreached when it reversed a decades-old policy in 1996 and sought to crack down on cigarette sales to minors.
"We believe that Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products," Justice Sandra Day O'Connor wrote for the court.
"By no means do we question the seriousness of the problem that the FDA has sought to address," O'Connor 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 added, "It is plain that Congress has not given the FDA the authority that it seeks to exercise here."
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 federal Food, Drug and Cosmetic Act allows the FDA to regulate tobacco. "Far more than most, this particular drug and device risks the life-threatening harms that administrative regulation seeks to rectify," he added.
Mark Smith, spokesman for Brown & Williamson Tobacco Corp., said, "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."
The Justice Department had no immediate reaction to the ruling.
John F. Banzhaf of Action on Smoking and Health, which supported the government's appeal, said he was disappointed but not surprised and said the ruling "will put tremendous pressure on Congress, especially during an election year, to ensure that nicotine does not remain the only totally unregulated drug."
On Wall Street, most tobacco stocks gained ground after the ruling. Philip Morris was up 93¾ cents at $20.87½ at late morning on the New York Stock Exchange, where R.J. Reynolds Tobacco was up 43¾ cents at $16.93¾, and Loews, which owns Lorillard, was up $2.12½ at $47.25. But the U.S. shares of British American Tobacco, which owns Brown & Williamson, were down 37½ cents at $$9.87½.
The Clinton administration 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 contended.
The tobacco industry has been under increasing pressure for selling a product the American Cancer Society calls the leading cause of cancer. The Justice Department is suing the industry, which already has agreed to pay the states $246 billion for the cost of treating smoking-related illnesses.
The nation's largest cigarette maker, Philip Morris Co., acknowledged last October that smoking is addictive and causes cancer. The third-biggest company, Brown & Williamson Tobacco, said in April 1999 that smokers "are taking significant health risks."
In February, a Philip Morris Co. executive said the company was willing to discuss some government regulation of the tobacco industry, but that the company still opposed the FDA's effort to regulate tobacco as a drug.
The FDA said for decades that it lacked authority under a 1938 law to regulate tobacco so long as cigarette makers did not claim that smoking provided health benefits.
But it reversed itself in 1996, saying it could regulate tobacco because of new evidence that the industry intended its products to feed consumers' nicotine habits.
All 50 states already ban tobacco sales to anyone under 18. In addition to adopting that as a federal rule, the FDA required stores to demand photo I.D. from all tobacco purchasers under age 27 and limited vending-machine cigarette sales to adults-only locations, such as bars.
Tobacco companies sued, and the 4th U.S. Circuit Court of Appeals ruled in 1998 that the FDA could not regulate tobacco. The court said that decision is up to Congress, which previously has banned broadcast advertising of tobacco, prohibited smoking on airlines and required warning labels on cigarette packages.
During arguments before the Supreme Court last December, Solicitor General Seth Waxman said the FDA can regulate tobacco as a drug because nicotine is "highly addictive" and acts as a stimulant, a sedative and an appetite suppressant, and also feeds smokers' addictions.
Forty states backed the government's appeal.
But the tobacco industry's lawyer argued that if FDA regulation were allowed, the government would be forced to ban tobacco products because they have not been shown to be safe.
O'Connor's opinion noted that the FDA has concluded that cigarettes are unsafe and dangerous. As a result, she said, federal law "would require the FDA to remove them from the market entirely."
"The inescapable conclusion is that there is no room for tobacco products within the (federal law's) regulatory scheme," she wrote. "If they cannot be used safely for any therapeutic purpose, and yet they cannot be banned, they simply do not fit."
Breyer said he did not believe the law would require a ban on cigarettes.
He also said the fact that only 2.5 percent of smokers manage to quit each year "illustrates a certain reality – the reality that the nicotine in cigarettes creates a powerful physiological addiction flowing from chemically induced changes in the brain."
All 50 states have reached settlements in which tobacco companies will pay them $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.
The Justice Department also sued the industry last September, seeking additional billions of dollars to repay federal health-insurance costs.
A Florida jury ruled in a class-action lawsuit last July that the five largest cigarette-makers produced a defective and deadly product. A jury is considering damages that industry lawyers say could exceed $300 billion.
Among the Supreme Court's nine justices, Rehnquist and Scalia are smokers, while Thomas used to smoke cigars.
The case is FDA vs. Brown & Williamson Tobacco Corp., 98-1152.
–––
On the Net: For current Supreme Court decisions: http://supct.law.cornell.edu/supct/ and click on "this month's decisions."
© Copyright 2000 The Associated Press
Joe
------------------
Joe's Second Amendment Message Board
