Judge Backs Regulation of Tobacco as Drug: But Rules for Industry on Ads

By Kaplan, Peter | The Washington Times (Washington, DC), April 26, 1997 | Go to article overview

Judge Backs Regulation of Tobacco as Drug: But Rules for Industry on Ads


Kaplan, Peter, The Washington Times (Washington, DC)


A federal judge in the heart of North Carolina's tobacco country yesterday upheld the government's contention that tobacco is a drug subject to federal regulation.

Handing the Clinton administration a victory in its war on smoking, U.S. District Judge William Osteen rejected the tobacco industry's request to strike down a series of regulations imposed by the administration earlier this year.

But the judge sided with the tobacco industry on another key issue by concluding the government has no authority to restrict the advertising and promotion of cigarettes.

The rulings were seen as a mixed bag by many tobacco analysts. But on balance, legal experts said, government officials and anti-smoking groups will have added leverage in their ongoing settlement negotiations with industry executives.

Tobacco companies such as Philip Morris and RJR Nabisco have long argued that tobacco isn't a drug, and that Congress never intended the government to regulate it.

Yesterday's ruling stems from a lawsuit first filed by the tobacco companies in 1995, in which they challenged the FDA's authority to regulate them.

Judge Osteen shook up the industry in a single statement of yesterday's 65-page decision: "The court finds that tobacco products fit within the [Food, Drug and Cosmetic Act]'s definition of `drug' and `device,' " he wrote.

The conclusion sent tobacco stocks tumbling by as much as 9 percent. Philip Morris, maker of Marlboro, Benson & Hedges, Merit and Virginia Slims, dropped as much as 8 percent and finished off $2.12 at $39.50 on the New York Stock Exchange. Shares of RJR Nabisco, manufacturer of Winston, Salem, Camel, Doral and Vantage, lost as much as 9.5 percent during the day and finished down $2.75 to $28.88 on the NYSE.

The decision surprised many industry experts because it came from a conservative Republican judge who had expressed skepticism about the government's efforts to regulate the industry. Anti-smoking groups said yesterday that the tobacco industry chose the federal court in Greensboro expecting it would get "home court" advantage there.

"It's a huge victory for public health," said Bill Novelli, president of the nonprofit Campaign for Tobacco-Free Kids. "It's the biggest victory over tobacco ever in the American court system."

President Clinton welcomed the decision as "a historic and landmark day for the nation's health and children," and he said the government would appeal the

parts of the ruling that went against it.

The ruling means the government will be able to keep in place restrictions on tobacco sales that went into effect at the end of February, including a requirement that stores check ID of cutomers buying cigarettes and smokeless tobacco, and a ban on cigarette vending machines in some areas. …

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