Published Online: May 7, 1997

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FDA Plan To Ban Tobacco Sales to Minors Upheld

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The federal Food and Drug Administration may regulate tobacco products but cannot restrict the industry's advertising or promotional campaigns that many critics charge are directed at children, a federal judge has ruled.

In the April 25 decision in U.S. District Court in Greensboro, N.C., Judge William L. Osteen ruled--in the first such finding by a court--that tobacco products, which contain nicotine, are drug-delivery devices and can be regulated by the federal government.

Only days later, the U.S. Supreme Court declined to hear a case challenging two 1994 Baltimore ordinances banning billboard advertising of alcohol and cigarettes.

Judge Osteen's decision lets stand the FDA's plan to impose a national prohibition on cigarette sales to minors. It grants the agency authority to require retailers to check the photo identification of persons younger than 27 who buy cigarettes. The court also left intact FDA regulations that mandate warning labels on cigarettes and bar cigarette vending machines from facilities frequented by minors.

"This is a historic and landmark day for the nation's health and children," President Clinton said in a statement.

Administration officials were disappointed, however, that the court chose to strike down FDA rules that would have limited advertising and marketing of tobacco products to minors. The judge blocked the FDA ban that would limit billboards within 1,000 feet of schools and playgrounds. He also rejected the government's plan to restrict print publications with a substantial number of young readers from running color ads.

Plans To Appeal

While tobacco companies applauded the judge's decision not to curtail their marketing, they said they would fight the decision that grants the FDA regulatory power over their products. "This is going to be a long haul," said Peggy Carter, a spokeswoman for the R.J. Reynolds Tobacco Co. in Winston-Salem, N.C.

The FDA is also planning to appeal the decision in an effort to reinstate the advertising restrictions. The administration was buoyed, meanwhile, by the Supreme Court's April 28 announcement that it would not review the Baltimore case.

The high court's action cleared the way for Baltimore to remove ads in certain areas of the city. Lawyers for the city said the move is intended to protect children from "any inducements to drink and smoke."

The Baltimore case has emboldened the country's largest city to curtail further cigarette advertising. Last week, the speaker of the New York City Council proposed barring cigarette ads on billboards, placards, and any other publicly visible sign located within 1,000 feet of a school, playground, or day-care center.

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