Tobacco Draws a New Breath

These are heady days for the tobacco industry. Just a short time ago it was on the defensive under the weight of lawsuits filed by state attorneys general and was wounded by court-ordered disclosures of incriminating secrets from its own files. Now the industry has rallied, thanks to a series of favorable court decisions and a disgraceful abdication of legislative responsibility.

In Indiana a judge has thrown out a state bid to recover tobacco-related health care costs. Courts elsewhere have dismissed several class-action suits against cigarette makers. In June, the Senate killed a bill to regulate the tobacco industry and keep its toxic products away from children. And last week, an appeals court panel reversed a lower court ruling and held that the Food and Drug Administration has no authority to regulate nicotine as a drug and cigarettes as a drug-delivery system.

In a 2-1 decision, a panel of the U.S. 4th Circuit Court of Appeals found that Congress had not given the FDA jurisdiction to regulate tobacco products, even while agreeing that “Congress has charged the FDA with protecting the public health and that tobacco products present serious health risks to the public.” As smokers die off, the industry assiduously recruits replacements; each year 1 million young people are induced to begin smoking. All of this the appellate panel undoubtedly knew.

Two courses of action must now be pursued. The Clinton administration should seek to have the appeals court panel’s ruling overturned, by the full 4th Circuit or by the Supreme Court. And Congress at long last should move forcefully to regulate tobacco.

Tobacco legislation died in the Senate in June partly because of relentless lobbying by an industry long accustomed to spending lavishly to buy key friends in high places and partly because anti-tobacco senators and their allies failed to accept the need for pragmatic restraints on what the legislation should try to accomplish. The next Congress will fail its responsibilities if it does not place high on its agenda legislation to regulate tobacco and to require restitution for the harm it has done.