The Tobacco-Politician Link Might Be Weakening at Last

Friday’s federal court decision upholding the U.S. Food and Drug Administration’s authority to regulate tobacco could and should signal the end of an era. Despite decades of research reaching the same ominous conclusion about the health dangers posed by cigarettes, the cozy relationship among government, politics and tobacco has persisted. Until now.

The North Carolina ruling concurred with the FDA that nicotine is a drug and that cigarettes are a drug delivery system, putting these products squarely under agency jurisdiction. U.S. District Judge William L. Osteen Sr. rejected the industry’s argument that Congress excluded nicotine and tobacco from the FDA’s authority when it created the agency in 1931. “Nothing in the legislative history indicates that Congress intended to limit the [FDA’s] reach to devices offered for beneficial or therapeutic purposes,” he wrote.

If upheld on appeal, the ruling will allow the FDA to enforce regulations designed to bar cigarette sales to people younger than 18. President Clinton announced the new rules last summer, but the spade work was done by then-FDA Commissioner David A. Kessler, who identified teenage smokers as a major risk group. Kessler was vilified by the tobacco industry for his trouble.

The new rules’ first phase, which prohibits sales to young people, began in February. Rules to take effect in August will ban cigarette vending machines in most locations, prohibit self-service cigarette displays and free samples and require packages to state that cigarettes are a “nicotine-delivery device.” Although Osteen upheld these rules, he postponed their implementation pending appeals.

Clinton promptly called the ruling “a great victory for us,” but the victory for anti-smoking forces was not complete. For instance, Osteen struck down FDA regulations severely restricting cigarette advertising and promotion. The agency wanted to ban cigarette logos on T-shirts, caps and other products and bar tobacco company sponsorship of sporting events. Osteen did not strike these rules on 1st Amendment free speech grounds, however; rather, he ruled that the FDA’s authorizing statute did not apply in this case. Certainly such advertising--so-called commercial speech--should enjoy somewhat less protection under the 1st Amendment than political debate and other forms of speech, but the FDA’s limitations on advertising did seem impermissibly broad.

Not so with advertising quite literally aimed at children. Osteen, for instance, struck down rules that would eliminate billboard cigarette advertising within 1,000 feet of schools and playgrounds. Yet the U.S. Supreme Court on Monday let stand similar restrictions imposed by local ordinance in Baltimore, despite arguments that the bans violate free speech rights, and that bodes well for the federal billboard rule voided by Osteen.

A troubling rise in teenage smoking in recent years has occurred at the very time the industry has demonstrated interest in capturing ever-younger smokers. Joe Camel, RJR Reynolds Tobacco Co.’s cartoon mascot for its Camel brand cigarettes, and other ad campaigns have given rise to these tough new federal rules and a dramatic increase in public criticism of the cigarette makers as well.

The drive against teenage smoking faces a major obstacle, however: Compliance by merchants and their young customers with the new federal sales restrictions is likely to be checkered at best. The FDA expects to bolster its enforcement staff, but the effort to monitor merchants’ checking of IDs is neither realistic nor the best use of scarce federal resources. State and local agencies will still bear responsibility in that area. So will concerned parents and politicians.