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Published in Print: March 29, 2000, as FDA Lacks Authority To Regulate Tobacco, Court Rules

FDA Lacks Authority To Regulate Tobacco, Court Rules

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The U.S. Supreme Court dealt a blow last week to the Clinton administration's efforts to curb youth smoking by ruling that the Food and Drug Administration lacks the authority to regulate tobacco.

Meanwhile, in another closely watched decision, the court ruled that universities may collect mandatory activities fees that provide money to a broad range of student groups, as long as the money is distributed on a viewpoint-neutral basis.

In the tobacco case, the court ruled 5-4 on March 21 that the FDA lacks authority from Congress to begin regulating nicotine as a drug, and cigarettes as drug-delivery devices, under a 1934 federal law.

After decades of disclaiming any authority to regulate tobacco, the FDA changed course in 1995 and proposed broad rules concerning the marketing of tobacco products to children and adolescents.

The rules prohibited the sale of cigarettes or smokeless tobacco to anyone under 18 and required retailers to verify the age of tobacco buyers. The rules also barred sales through vending machines except in adults-only locations and prohibited outdoor tobacco advertising within 1,000 feet of a playground or school.

Only the age requirement and age-verification rule were allowed to take effect after the major tobacco companies sued the FDA. The others were put on hold.

The U.S. Court of Appeals for the 4th Circuit, based in Richmond, Va., overruled a federal district court in 1998 and held that the FDA had no jurisdiction to regulate tobacco.

In the Supreme Court's decision last week in Food and Drug Administration v. Brown and Williamson Tobacco Corp. (Case No. 98-1152), both the majority and dissenting opinions discussed tobacco as a major health threat.

The FDA "has amply demonstrated that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States," Justice Sandra Day O'Connor said for the majority, which included Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

But "it is plain that Congress has not given the FDA the authority that it seeks to exercise here," she added.

Justice Stephen G. Breyer, joined in dissent by Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg, said the agency had good reason to assert regulatory control over tobacco because only in the past decade has it gathered evidence that the tobacco companies knew nicotine had harmful chemical effects on the body, "even at a time when the companies were publicly denying such knowledge."

Kathryn Kahler Vose, a vice president of the Washington-based Campaign for Tobacco-Free Kids, said anti-tobacco forces would now turn to lobbying Congress to give the FDA clear authority to regulate tobacco products.

"We're disappointed, but it's not the end of the battle," she said.

Mandatory Fees

In the activity-fees case, the court ruled unanimously on March 22 that the University of Wisconsin-Madison could charge mandatory fees even when some students objected to having a portion of the money go to groups whose views they found offensive.

Justice Kennedy, in the main opinion in Board of Regents of the University of Wisconsin System v. Southworth (No. 98-1189), said the First Amendment does not compel a public university to provide students who object to certain student groups with a mechanism for withholding part of their activity fees.

A university is "entitled to impose a mandatory fee to sustain an open dialogue" on campus, he said. The First Amendment rights of students who object to certain groups will be respected as long as the funds are distributed regardless of viewpoint, he said.

Justices Stevens, Souter, and Breyer agreed with the result but signed a concurring opinion offering a rationale slightly different from Justice Kennedy's.

While the student-fees issue has roiled a number of public universities in recent years, K-12 schools have not directly confronted it. But major First Amendment rulings by the Supreme Court generally have future implications in broader contexts.

Vol. 19, Issue 29, Page 33

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