The US Supreme Court has handed the tobacco industry a major
victory by ruling that the Food and Drug Administration does not
have authority to regulate tobacco.
In a long-awaited decision, the nation's highest court split 5 to
4 in determining that national lawmakers in Congress - rather than
unelected bureaucrats at the FDA - hold the power to regulate Big
The March 21 decision deals a severe blow to President Clinton in
his efforts to curb youth smoking. It puts the issue of regulation
back in the aisles of Congress.
In its ruling, the court said regulation may be accomplished
through direct legislation or by expanding the FDA's mandate to
include federal rules governing products containing addictive
nicotine, such as cigarettes. But failing such a direct grant of FDA
authority, the agency is powerless to act on its own, even for the
most noble of causes.
"Congress, for better or worse, has created a distinct regulatory
scheme for tobacco products [and] squarely rejected proposals to
give the FDA jurisdiction over tobacco," Justice Sandra Day O'Connor
writes for the majority.
"Owing to its unique place in American history and society,
tobacco has its own unique political history," she says. "Given this
history and the breadth of the authority that the FDA has asserted,
we are obliged to defer not to the agency's expansive construction
of the statute, but to Congress' consistent judgment to deny the FDA
The question now is: If the FDA is powerless to enforce
regulations aimed at protecting children, will Congress take any
action? Antitobacco activists say that is unlikely in an election
year, in part because of substantial and well-placed campaign
contributions made by Big Tobacco.
"Tobacco has lots of friends in the Congress," says Kathryn
Kahler Vose of the Campaign for Tobacco-Free Kids. "They've spent
years and millions of dollars buying lots of influence. Clearly,
passing legislation will be a battle."
But, she adds, "The public feels strongly that tobacco should be
The high-court ruling comes as Philip Morris, the nation's
largest tobacco company, is suggesting a dialogue with Congress and
the public-health community to discuss some form of regulation.
"We are ready and eager to engage in a useful and positive
discussion on these issues," said a statement issued by Philip
Morris. "Federal regulation of cigarettes - as cigarettes dealing
with youth smoking while respecting an adult's right to smoke -
makes sense for smokers and manufacturers alike."
The industry's conciliatory stance may be intended to head off an
antitobacco backlash in the wake of the Supreme Court decision, say
analysts say. They see the move as consistent with an industry
public-relations campaign to boost its image after damaging
revelations about Big Tobacco deception over research findings and
Skeptical antitobacco activists say the industry wants to
position itself to play a role in a regulation process that may
become inevitable. Regulations, they say, could actually make it
easier for the tobacco industry to sell and market certain kinds of
"The more the public engages on this issue - when they realize
tobacco is a rogue product, promoted by a rogue industry, exempt
from consumer-protection and health-and-safety laws - then we think
there will be a lot of support [for congressional legislation],"
says Paul Billings of the American Lung Association. …