TOBACCO: Supreme Court Denies FDA Power Over Industry
Dealing a blow to the White House's anti-tobacco crusade, the U.S. Supreme Court yesterday ruled 5-4 that the FDA cannot regulate tobacco. Writing for the majority, Justice Sandra Day O'Connor said, "By no means do we question the seriousness of the problem that the FDA has sought to address. 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." But, she continued, the federal agency lacks congressional authority over the industry. "Congress, for better or worse, has created a distinct regulatory scheme for tobacco products, squarely rejected proposals to give the FDA jurisdiction over tobacco and repeatedly acted to preclude any agency from exercising significant policymaking authority in the area," O'Connor wrote. She was joined in her opinion by Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. Calling the majority opinion "counter-intuitive," dissenting Justices Stephen Breyer, John Paul Stevens, David Souter and Ruth Bader Ginsburg decried the ruling, arguing that the court "should have interpreted the relevant statutes 'in light of Congress' overall desire to protect health.'" Breyer wrote, "The upshot is that the court today holds that a regulatory statute aimed at unsafe drugs and devices does not authorize regulation of a drug (nicotine) and a device (a cigarette) that the court itself finds unsafe" (Biskupic, Washington Post, 3/22).
Back to Congress
Yesterday's ruling "hands the question of national tobacco regulation back to Congress," where a 1998 drive for FDA jurisdiction over tobacco gained some bipartisan support but "became mired in a broader debate over whether to give the cigarette industry immunity from damage suits," the New York Times reports (Greenhouse, 3/22). Speaking from New Delhi, India, President Clinton immediately urged Congress to take action. "If we are to protect our children from the harms of tobacco, Congress must now enact the provisions of the FDA rule," he said (Murray, Washington Times, 3/22). Presidential candidates George W. Bush (R) and Al Gore (D) also called for greater restrictions over tobacco. Although he did not address the issue of FDA regulation, Bush said in a statement that Congress and state legislatures should "pass laws to restrict access to tobacco by minors" (Broder, New York Times, 3/22). On the campaign trail in New York, Gore challenged Bush and the GOP-led Congress to "put aside partisanship and 'stand up to big tobacco.'" He said, "It is time for the Republicans in Congress to show their independence from the tobacco lobby and do the right thing" (Getlin, Los Angeles Times, 3/22). But those calls are likely to go unheeded, as congressional GOP leaders yesterday indicated they would not give the FDA more power over tobacco. Sen. Majority Leader Trent Lott (R-Miss.) said, "I think [the] FDA has a very broad jurisdiction as it is, and I don't think they do a very good job ... now without more requirements being dumped on them. When you look at the delays and the long process in getting pharmaceuticals and medical procedures approved as it is, I think that they need to be doing a better job of what they already have to do." House Majority Leader Dick Armey (R-Texas) added, "I'm not anxious to extend the power and authority of the FDA" (Hudson, Washington Times, 3/22).
Delaying the Inevitable?
Yet, despite opposition from GOP leaders and the Supreme Court decision, Congress will likely impose some restrictions over tobacco, especially since industry executives themselves seem to be pushing for regulation, the Washington Post reports. While they were "pleased" with the High Court's decision that "there is no sense to regulating cigarettes as pharmaceutical products," officials at Philip Morris yesterday issued this "conciliatory" statement: "[W]e think this is an opportunity to proceed with discussions on what is the right way to come up with a tough, sensible, common-sense approach to the regulation of cigarettes." And R.J. Reynolds Tobacco Executive Vice President Charles Blixt said, "We are willing to begin a dialogue with Congress on reasonable options for additional regulation of the design and manufacture of cigarettes at the federal level." Analysts attribute the turnabout to the recent assault on the industry. "The bottom line is that the industry wants peace -- they want their stocks to be stable," analyst Mary Aronson said, adding, "The only way they see to an end of the litigation threat is if Congress is reinvolved. So I think the industry is positioning itself so it can go to Congress and ask for some kind of protection from tobacco litigation in exchange for regulation." Salomon Smith Barney analyst Martin Feldman agreed, noting, "I have no doubt that in the next two or three years there will be an overhaul of the entire regulatory environment for tobacco. The fact the industry won the Supreme Court claim will in the long run make very little difference" (Kaufman, 3/22).