FDA JURISDICTION: Supreme Court Grants Hearing
Bucking the predictions of many legal and financial analysts, the Supreme Court announced yesterday without comment that it would review a lower court decision barring the FDA from regulating tobacco products. "It will be the most important public health case the Supreme Court hears in decades," said Dr. David Kessler, dean of Yale University Medical School and former FDA head. Matthew Myers of the Campaign for Tobacco-Free Kids said, "Today's decision reflects the Supreme Court's appreciation of the extraordinary public health implications of this case, separate from the legal issues. It will determine whether an industry can escape federal legislation by hiding the truth from Congress and federal regulators for decades" (Rosen, Raleigh News & Observer, 4/27). Applauding the decision, President Clinton said, "I remain firmly committed to the FDA rule, which will help stop young people from smoking before they start by eliminating advertising aimed at children and curbing minors' access to tobacco products" (Gibson, Lexington Herald-Leader, 4/27).
The Washington Post reports that the Court's decision to hear Food and Drug Administration v. Brown and Williamson Tobacco means only that "at least four justices voted to review the 4th Circuit ruling. ... [N]othing in the justices' past writings make clear how a majority (at least five) would decide the merits of the case" (Biskupic, 4/27). Salomon Smith Barney analyst Martin Feldman said, "The Supreme Court could just as easily have decided to take the case simply to make a declarative judgement that government agencies should stop trying to usurp the authority of Congress." A statement by Brown & Williamson suggested that the merits are on its side, saying, "This is precisely the sort of government overreaching that the Supreme Court has struck down in the past" (Curriden, Dallas Morning News, 4/27). Sen. John Edwards (D-NC) agreed, saying, "I think congressional intent in this area is clear. Congress has never shown the slightest intent to put tobacco under the FDA, and it's had numerous opportunities to do so" (News & Observer, 4/27).
Should the Court side with the FDA, the agency would gain sweeping power over tobacco. Ethan Siegal, president of the Washington Exchange, said, "It's the biggest unknown out there. The industry has the power, if it wants to, to settle smoker lawsuits. The regulatory aspect is something that, once it falls under the power of an agency, is less and less under the industry's control" (Bloomberg/New York Post, 4/27). In fact, the industry "maintains that FDA control would ultimately result in a cigarette ban" (Savage, Los Angeles Times, 4/27). In an effort to ward off such an outcome, the industry already has in its pocket several backup challenges should it lose the case, including a First Amendment claim against the proposed advertising restrictions (Greenhouse, New York Times, 4/27). The court is expected to hear arguments on the case in the fall, and issue a decision by June 2000 (Hardin, Richmond Times-Dispatch, 4/27). Tobacco stocks fell yesterday on the news (Greenberger/Hwang, Wall Street Journal, 4/27).