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Published in Print: May 5, 1999, as Supreme Court To Decide if FDA Can Regulate Tobacco

Supreme Court To Decide if FDA Can Regulate Tobacco

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The U.S. Supreme Court agreed last week to step into the high-stakes battle over tobacco regulation, accepting a Clinton administration appeal in a case involving federal regulations aimed at curbing youth smoking.

The court on April 26 agreed to decide whether the Food and Drug Administration has the authority to regulate tobacco as a drug. The federal agency, which for years had no major role in regulating tobacco, changed course in 1996 and asserted its authority to do so.

The FDA that year issued rules that prohibit the sale of cigarettes and smokeless-tobacco products to anyone under 18, require retailers to check the identification of anyone under 27, and restrict vending-machine cigarette sales.

The regulations also ban outdoor advertising of tobacco products within 1,000 feet of schools and playgrounds, and prohibit the distribution of promotional items such as T-shirts with tobacco brand names or logos.

'Unparalleled Opportunity'

The tobacco industry, along with retailers and advertisers, challenged the FDA's legal authority to regulate tobacco in a lawsuit filed in federal district court in North Carolina. The district court upheld the agency's authority, with the exception of the regulation of advertising and promotion of tobacco.

A panel of the U.S. Court of Appeals for the 4th Circuit ruled 2-1 last year in favor of the tobacco industry. The ruling stated that the FDA lacks jurisdiction to regulate tobacco and that its regulations, therefore, are invalid.

The Clinton administration, in its appeal in Food and Drug Administration v. Brown and Williamson Tobacco Corp. (Case No. 98-1152), urged the high court to accept the appeal and reverse the 4th Circuit court.

"Unless this court grants review, an unparalleled opportunity to curb tobacco use by children and to reduce the disease and death associated with such use will be lost," the administration's brief said.

In urging the court not to accept the appeal, lawyers for the tobacco industry said that Congress has never explicitly granted the FDA authority to regulate tobacco.

"Tobacco products have long presented public-policy issues very different from those presented by foods, drugs, medical devices, and cosmetics," the areas traditionally regulated by the FDA, the industry said in its brief.

The court will hear the case during its next term, which begins in October, and will likely issue a ruling by July 2000.

Vol. 18, Issue 34, Page 23

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