Judges Question Smoking Rules

A federal appeals court on Monday appeared highly skeptical of the Clinton administration’s controversial regulations designed to reduce youth smoking.

During a three-hour hearing on the legality of the regulations, judges on the U.S. 4th Circuit Court of Appeals in Virginia repeatedly asked why the Food and Drug Administration suddenly decided to regulate tobacco after generally choosing not to for more than five decades.

Although legal experts generally caution against predicting the outcome of an appeal from the tenor of judges’ questions, a majority of the panel appeared dubious about the regulations, which are being challenged by the tobacco industry.

Of the three judges--Donald S. Russell, James H. Michael and K.K. Hall--only Hall came to the defense of Acting Solicitor General Walter Dellinger, who represented the Clinton administration.

“The FDA got creamed,” said tobacco industry analyst Gary Black of Sanford Bernstein & Co. after the hearing.

The court’s ruling is not expected for months, and any decision is likely to be appealed to the Supreme Court.

In the case, Brown & Williamson Tobacco Co. vs. United States Food and Drug Administration, the tobacco industry and allies ask that the agency’s youth smoking regulations be struck down, arguing that the FDA exceeded its regulatory authority. Such a sweeping initiative, the industry argues, can be launched only by Congress.

“That’s not our government. That’s not democracy. That’s not the rule of law. That’s what this case is about--who gets to make this decision,” argued industry attorney Richard Cooper.

The FDA’s 1996 youth smoking initiative has been all but eclipsed in recent months by a proposal to devise a national settlement with the tobacco industry that would provide the companies with some protection from lawsuits in return for public-health concessions and an estimated $368 billion over 25 years.

Under that agreement, the industry would accept some degree of FDA regulation. But any settlement would require Congress’ approval. In the meantime, the legal challenge is continuing.

Earlier this year, U.S. District Judge William L. Osteen Sr. in Greensboro, N.C., upheld that the FDA has jurisdiction over tobacco products. He also decided, however, that the agency had gone too far in trying to restrict tobacco advertising ostensibly aimed at minors.

Because neither side got everything it wanted in the lower court, both the industry and government appealed.