Justices to Hear Claim on Regulating Tobacco

The Supreme Court agreed Monday to hear the Clinton administration’s claim that the federal government has the power to regulate tobacco as a drug and, if necessary, to ban the sale of cigarettes.

A ruling on the issue, due early next year, could shape the future of the tobacco industry.

The industry’s lawyers have said that putting tobacco under the jurisdiction of the Food and Drug Administration would likely result in the banning of tobacco because its risks greatly outweigh its benefits. The FDA has said it has no such plans, but the tobacco industry remains unconvinced.

Industry officials warn that, at a minimum, federal regulators could demand that cigarette makers remove much of the nicotine from their products. If so, the addictive appeal of cigarettes would go down, and so would sales.

The court also announced Monday it will decide one of the oldest, unresolved questions of civil rights law: Is it illegal to discriminate against someone because he or she is not an American citizen?

Just after the Civil War, the Reconstruction Congress passed the nation’s first civil rights act and gave “all persons within the jurisdiction of United States” the same rights as “white citizens.” Ever since, some courts have read this to mean employers and public agencies may not discriminate against legal residents simply because they are not U.S. citizens.

Both cases are likely to come up for argument before the court in November.

President Clinton said he was pleased by the court’s move to take up the government’s appeal in the tobacco case, a first step toward reviving the administration’s crackdown on teen smoking.

“Every day, 3,000 young people become regular smokers, and 1,000 will have their lives cut short as a result,” the president said.

However, the legal issue does not turn on whether the federal crackdown is a wise policy, but instead on whether Congress gave FDA regulators this power.

Beginning in 1906, Congress passed a series of laws to protect consumers from adulterated foods and dangerous drugs.

Even then, tobacco was seen as a health risk. In the early years of this century, 14 states prohibited the sales of cigarettes. They are “wholly noxious and deleterious to health,” said a Tennessee court in upholding that state’s ban.

But Congress has not said tobacco was a dangerous drug subject to federal regulation. Neither have lawmakers explicitly shielded cigarettes, however.

In 1996, the White House and then-FDA Commissioner David A. Kessler boldly reversed the government’s long-standing, hands-off policy toward tobacco products. Newly disclosed industry documents showed that tobacco firms “manipulate nicotine deliveries to provide pharmacologically active doses to consumers,” the agency explained at the time.

After asserting federal jurisdiction, the FDA announced some modest rules intended to keep cigarettes from minors.

All states now prohibit sales to minors. The disputed federal rules would go slightly further. For example, they would forbid the sale of cigarettes in vending machines, except those in adults-only establishments. Retailers also would be required to check the photo identifications of young buyers before selling them cigarettes and would be subject to fines if they did not.

Separately, the FDA proposed new limits on tobacco advertising that targeted young people. These limits were struck down by a federal judge, and they do not figure in the appeal before the Supreme Court.

FDA officials, acknowledging that about one-fourth of Americans smoke, from the start discounted the notion of a ban on cigarette sales as risky and impractical.

But noting that federal law does not allow dangerous drugs to stay on the market, the tobacco industry maintains that FDA control would ultimately result in a cigarette ban.

The industry’s lawyers went to court contending Kessler and his successors had exceeded their authority under the law. And in August, they won before the U.S. court of appeals in Richmond, Va. That court’s 2-1 decision threw out the new federal rules and held that Congress did not intend to bring tobacco under the control of the FDA.

In his appeal on behalf of the administration, U.S. Solicitor General Seth Waxman called the tobacco regulations “the most important public health and safety rule-making that FDA has conducted in the past 50 years.”

He made two arguments that should appeal to the court’s conservatives. Justice Antonin Scalia, for example, has insisted that judges rely on the plain language of the law, not on what they think lawmakers might have had in mind. And, when in doubt, judges should defer to the decisions of the agency’s experts, Scalia has said.

In this instance, the Food and Drug Act broadly defines a drug as a substance “intended to affect the structure or any function of the body.” The nicotine in cigarettes is such a substance, Waxman said.

And, should there be doubt, the judiciary should defer to the FDA’s conclusion that tobacco is a drug, Waxman argued.

The court’s decision to hear the appeal in FDA vs. Brown & Williamson Tobacco Corp., 98-1152, indicates that at least four of the justices voted in favor of taking the case. If the court had rejected the appeal, the federal regulations would have died, and the issue would have been thrown back to Congress.

“This takes this issue off the political front-burner for a year,” said Scott Williamson, a tobacco industry spokesman.

Anti-tobacco activists were buoyed by the court’s move. They had all but given up persuading the Republican-controlled Congress to pass a law giving the FDA jurisdiction over tobacco.

The civil rights case tests whether a New York carpenters’ union could dismiss an elected union official on the grounds that he was not an American citizen.

Linden Anderson, a Jamaican citizen who had lived in New York since 1968, was turned out of office because the union’s bylaws say officers must be citizens of the U.S. or Canada.

He sued the union for damages and won a preliminary victory in the lower courts.

The union appealed, and the Supreme Court voted to take up the case of United Brotherhood of Carpenters vs. Anderson, 98-958, to rule on whether discrimination based on citizenship is illegal.