Gov't, Tobacco Industry in Court
WASHINGTON (AP) - The Clinton administration's groundbreaking effort to curb smoking ran into trouble Wednesday as most Supreme Court justices expressed doubts the government has the authority to regulate tobacco as an addictive drug.
Such regulation by the Food and Drug Administration ``just doesn't fit'' under a federal law that requires the FDA to ensure drugs that are safe and effective, said Justice Sandra Day O'Connor.
``Is it the position of the government that the use of tobacco is safe and effective?'' she asked Solicitor General Seth Waxman. The government has asked the justices to overturn a lower court ruling and let the FDA regulate tobacco and crack down on sales to minors.
The government has called the 1996 initiative the FDA's most important public health and safety effort in the past 50 years. The tobacco industry has been under increasing attack for selling a product that the American Cancer Society says is the leading cause of cancer.
Waxman contended the FDA has the authority to act because the nicotine contained in tobacco is ``highly addictive'' and acts as a stimulant, a sedative and an appetite suppressant and feeds smokers' addictions.
But tobacco industry lawyer Richard M. Cooper insisted the government's action was ``lawless'' because cigarettes are not promoted as having positive effects on health.
Several justices seemed concerned about the industry's argument that if FDA regulation were allowed, it would have to ban tobacco products.
``We tried a ban of (alcohol) and decided, forget about it,'' Justice Antonin Scalia said.
Scalia said that even if a 1938 law could give the FDA authority to regulate tobacco, ``There's a lot of water over the dam since then'' during which the government said it could not regulate the industry.
``I have the same concerns with the case,'' added Justice Anthony M. Kennedy.
A federal appeals court said Congress, not the FDA, had the power to decide whether to regulate tobacco. Forty states are backing the government's appeal, and the Supreme Court is expected to rule by July.
No matter what the justices decide, Congress could decide to change the result by passing a new law.
Chief Justice William H. Rehnquist questioned why the FDA decided to regulate tobacco in 1996 when the surgeon general's office determined three decades earlier that smoking was dangerous to people's health.
Waxman noted that executives of seven major tobacco companies testified to Congress in 1994 that nicotine was not addictive and that cigarette makers did not manipulate their products' nicotine content.
``As far as the former is concerned, nobody believed them,'' Scalia responded, and Rehnquist quickly added, ``Nobody believed them.''
Justice David H. Souter also seemed troubled by Waxman's argument.
However, Justice Stephen G. Breyer noted that ``nobody can kid themselves any more'' about the effects of smoking. ``Is the word 'safety' in this statute supposed to stop the FDA from looking at the real world?''
Justice Ruth Bader Ginsburg asked Cooper, ``Are you saying that if heroin were legalized, the FDA could not regulate it?''
Among the court's nine justices, Rehnquist and Scalia are smokers, while Clarence Thomas used to smoke cigars.
All 50 states have reached settlements in which tobacco companies will pay them $246 billion for the cost of treating smoking-related illnesses. The Justice Department sued the industry in September, seeking additional billions of dollars to repay federal health-insurance costs.
In July, a Florida jury ruled in a class-action lawsuit that the five largest cigarette makers produced a defective and deadly product. The jury is considering damages that industry lawyers say could exceed $300 billion.
The FDA said its decision to start regulating tobacco in 1996 was prompted by new evidence that the industry intended its products to feed consumers' nicotine habits.
All 50 states already ban tobacco sales to anyone under 18. In addition to adopting that rule, the FDA required stores to demand photo I.D. from all tobacco purchasers under age 27 and limited vending-machine cigarette sales to adults-only locations, such as bars.
Tobacco companies challenged the rule, and the 4th U.S. Circuit Court of Appeals ruled last year that the FDA could not regulate tobacco. ``Congress never intended to give the FDA jurisdiction over tobacco products,'' the appeals court said.