Kessler Says Tobacco Rules Will Prevail

Outgoing Food and Drug Administration Commissioner David A. Kessler, saying that public sentiment and political realities concerning smoking have undergone a transformation in recent years, predicted Tuesday that the Clinton administration’s decision to regulate tobacco will not only survive but will be written into law eventually by Congress.

The regulations “make eminent sense,” Kessler said during a breakfast session with Times reporters and editors. “Because they make eminent sense, they will survive.”

Kessler, whose controversial tenure as head of the agency ends in 10 days, said that strong public support for the administration’s efforts has eroded initial resistance by many lawmakers to tobacco regulation.

“The best political minds didn’t predict that the president could stand up on tobacco,” Kessler said, or that Clinton could win a majority of votes in tobacco-rich Kentucky. “It was a very significant change.”

Kessler’s comments came as thousands of retailers across the nation are gearing up to begin implementing new federal rules that require businesses to request photo identification from customers who appear to be younger than 27 in an effort to keep cigarettes out of the hands of children.

The regulations, which are being challenged in court by the tobacco industry, take effect Feb. 28. Other proposed rules--including a ban on most vending machine sales; an end to cigarette brand sponsorship of sporting events; elimination of cigarette logos on baseball caps, T-shirts and other merchandise, and perhaps most controversial--restrictions on tobacco advertising--are scheduled to be phased in through August 1998.

Kessler said, however, that he does not expect the agency to immediately begin punishing those who violate the laws.

“There is a need to educate retailers and people on what the regulations are,” he said. “That doesn’t happen overnight.”

Kessler said he believes that much of the political opposition to the agency’s regulatory initiative has abated, and he predicted a bipartisan effort from the Republican-dominated Congress to write the rules into law.

“I simply don’t understand . . . why this is a partisan issue, in the end; it doesn’t make any sense to me,” he said. “Why would a Republican want . . . kids to smoke and to be exposed to the constant barrage of advertising and promotion?”

He added: “I think that at some point in the future . . . there will be legislation. I think the president has said that, if the Congress was ready to take FDA regulations and basically put them in statutes, that he would support that.”

Opponents of the regulations have argued that the FDA does not have jurisdiction over tobacco. Congress could explicitly establish such authority or it could award jurisdiction over tobacco to another agency.

“There are those who would take away FDA jurisdiction and [still] put the regulations into effect,” Kessler said. “But I think what’s important . . . is reducing the number of children who start [smoking]. That requires a credible enforcing presence.”

He also argued that maintaining FDA authority over the issue would “give it [the FDA] a base to look at this problem over a longer duration. If we haven’t gotten it exactly right in the rules today, we can change that.”

Kessler, who has headed the FDA for six years, is preparing to assume a new post as dean of the Yale University Medical School. He was chosen to head the FDA by President Bush and reappointed by President Clinton.

The president has not nominated a successor to Kessler. Among those reportedly being considered for the post are Dr. Jane Henney, a former FDA official now at the University of New Mexico, and Michael Taylor, a former FDA deputy commissioner now practicing law.

During his time in the job, Kessler also was responsible for revamping the nation’s food labels, speeding up the review process for new drugs, and taking on such explosive issues as RU-486 and silicone gel breast implants.