On March 21 the Supreme Court held unanimously that tobacco use is "perhaps the single most significant threat to public health in the United States." Unfortunately, five of the Justices also found that Congress had deliberately withheld from the Food and Drug Administration the power to regulate tobacco products. The four-member minority argued that Congress's intent was far from clear, and that it would defy reason for the Court to rule that the FDA had plenary authority to police the safety of all drugs but the single most lethal and addictive one. Neither majority nor minority expressed any doubt that Congress had the power and the responsibility to act. And so it must.
What happens now? This year, only talk, tobacco smoke and mirrors if Senate majority leader Trent Lott and other Republican leaders indentured to big-tobacco campaign cash get their way. Lott has already proclaimed that he opposes legislation giving the FDA jurisdiction, saying, "I don't think they're doing a very good job of what they are supposed to be doing now." But based on the two major presidential candidates' instant responses to the Supreme Court's decision, we can discern the outlines of two sharply divergent scenarios next year.
Gore reflected the strong consensus of public-health advocates that Congress must grant the FDA full power to regulate nicotine as an addictive drug. Bush, guided by his closest adviser, Karl Rove, a former media strategist for Philip Morris, spoke for that company. Bush's statement said he "believes Congress should pass tough laws to keep tobacco out of the hands of kids." Nothing about regulating nicotine or the carcinogens in tobacco products. Similarly, Steven Parrish, senior vice president of Philip Morris, magnanimously urged Congress "to come up with a tough, sensible, common-sense approach to the regulation of cigarettes." Parrish has made clear, however, that to Philip Morris a "common-sense approach" does not include FDA regulation of nicotine, only of advertising and marketing practices.
What could FDA regulation of nicotine mean? Here's one possibility: The agency could conduct an honest scientific assessment of the best way to reduce the number of people who die from tobacco use and require tobacco companies to do what other industries are already required to do--make their products as safe as technologically possible. Perhaps the science will demonstrate that the best approach is to promote a technological race to remove carcinogens and other toxic fumes from tobacco products. Or perhaps the evidence will prove that it is possible to wean smokers from nicotine, without creating a black market, by gradually reducing nicotine levels. Within ten years tobacco cigarettes might be virtually nicotine-free. Kids who take up smoking to ape their peers will soon tire of it and, unaddicted, easily quit. Those smokers who smoke, as the tobacco marketers insist, "for the taste of fine tobacco," not a nicotine fix, would continue to smoke but would live longer. Others would have a choice of FDA-regulated nicotine-delivery devices--patches and inhalers--that could be designed and marketed by the tobacco companies, which are already in fierce competition with the drug companies to develop better nicotine mousetraps. In time, addicted smokers, hooked on highly toxic cigarettes, would become a doubly endangered species. And in the United States, at least, Big Tobacco would shrink in size, profitability and political power.
Philip Morris's and R.J. Reynolds's public-relations machinery has been cranking up for the past year to spin the cigarette companies as reformed sinners, worthy and responsible negotiation partners for the Administration and Congress in reaching a consensus on "common sense" regulation. Lest anyone be lulled by Philip …