Supreme Court: FDA Can't Regulate Tobacco! Could this help us?

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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


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Joe's Second Amendment Message Board
 
So it would take an act of congress to ban cigarettes or classify them as a controlled substance before the FDA could regulate them as such. Yet, the lawsuits against the tobacco companies can and will continue. HUD is not seeking to regulate guns, but is threatening lawsuits if the manufacturers don't comply with HUD's wishes. It would seem that, no matter how favorably the courts rule on RKBA, the lawsuits could keep coming, unless a court rules that the lawsuits impact
the Second Amendment.

We need a constitutional scholar here. ;)

Dick
 
I heard the National Propaganda radio report on this. I was struck bu a statement from the majority on this decision. They were talking about how dangerous and deadly tobacco is ( something along the order of firearm, automobile, pool, genocide, wold wars, etc). I think congress should be challenged. The creeps on both sides of the Isle want to be seen "doing something" about this problem and that, but they don't want to have thier totalitarian impulses shown. Screw that. Ban it, or shut the Bleep up. Either I'm a free person with the CHOICE to do things which may harm ONLY me, or not! Either those Ba***ds think I'm thier property or not. Fish of cut bait, S***t or get of the pot! GRRRRRRRRRRR !!!!!!!!!!!

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Rob
From the Committee to Use Proffesional Politicians as Lab Animals
 
So when do we sue Central American Indian tribes to pay the costs of tobacco addictions (and, while at it, of syphilis which was another one of Columbus' imports back in the 1490s)?
 
This shows the hypocracy of the Clinton admin.

If Congress were to give FDA control over tobacco...FDA has no moral choice other than to ban it outright. But they won't...way too much tax revenue. They'll bleed the T companies dry for another 20-30 yrs.

You can bet your wallet that if tobacco was banned, our taxes will shoot up.


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"Quis custodiet ipsos custodes" RKBA!
 
DC, the federal government gives subsidies to tobacco farmers. The government also buys tobacco from these farmers and sells it overseas. The government uses the taxes it collects on cigarettes (about $2.40+ on a $2.80 pack) to fund everything from highways
to missiles. It would seem to me that the real purveyor of tobacco is the government. Shouldn't _we_ be suing the FDA? And, while I'm on a rant, shouldn't the money collected from tobacco lawsuits go to the "victims" of the tobacco companies, namely the smokers?

Hey, everybody else is cashing in on "who wants to be a millionaire litigant." Why not me? :D

Dick
 
I see it as an affirmation that the supreme Ct. still works.......what concerns me is the fact that the constitutionality of this was voted 5 to 4........lets hope that the three supreme ct judges that are do to be replaced come from the 4.......fubsy.
 
First, as Fusby notes, the 5 to 4 vote of the court indicates that the next president will pick justices that may alter the balance of the court away from the currently proper one it has now. Vote for Bush.

Second, yes, this ruling does have some potentially positive benefits for the RKBA because it says that the President cannot just do anything he wants for the sake of public safety or health. Congress makes the laws, for better or worse.

Yet, even Congress can overstep it constitutional limits, as it did with portions of the Brady law and the "gun free school zone" law. There is a pattern here. The current court is exercising checks and balances. Let us hope that it continues to do so.

Third, Justice Breyer's assertion 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" is complete and absolute horsepuckey.

I am sick and tired of hearing how nicotine is as supposedly dangerous as heroine and cocaine when it is clearly not. A habitual nicotine user may be screwing himself over, but he is not as nearly as impossible to deal with as a narcotics addict.

As a former smoker, I can tell you anyone can quit. It's no big deal. You must decide who you are: Smoker or Non-Smoker. I made my choice, so there it is.
 
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