A Judicial Tilt for Tobacco

The U.S. Supreme Court appears skeptical that the federal Food and Drug Administration has the right to regulate tobacco as the Clinton administration insists. In hostile questioning Wednesday, several justices took sharp issue with the claim that the 1938 law creating the agency gives it the jurisdiction that the FDA asserted in 1996 to regulate cigarettes as “nicotine delivery devices.”

Looking at the text of the law and Congress’ intent in 1938, it appears that the high court’s skepticism has merit, at least in the arid world of constitutional jurisprudence. But what should happen in the real world, where smoking continues to kill more than 430,000 Americans annually?

The Food, Drug and Cosmetic Act of 1938, which established the FDA, empowered it to approve drugs and medical devices prior to marketing. To win the agency’s approval, a product must be proven safe and effective, with health benefits outweighing risks.

Until the mid-1990s, the agency said that it had no authority to regulate tobacco, partly because smoking was not recognized until recent decades for the health menace it is.

Now considered the most preventable cause of death in the United States, smoking has public health officials worried that teenagers, highly susceptible to industry advertising, are at particular risk of taking up smoking and getting hooked. In 1996, under then-Commissioner David Kessler, the FDA issued regulations aimed at curbing teen smoking by requiring merchants to check the age on a buyer’s identification and limiting cigarette advertising. It is those regulations that the tobacco industry is challenging in court.

The FDA insists that since nicotine is a drug, the agency could act under authority of the 1938 act. Yet, as Justice Sandra Day O’Connor noted, cigarettes aren’t like medicines. Indeed, the agency surely will never pronounce them either safe or effective. But the FDA also would be hard-pressed politically to ban the sale of cigarettes outright--and make that ban stick.

Most likely, the high court will throw the issue back to Congress, where, for decades, politicians have given the tobacco industry a shamefully free ride in the area of health and safety. What the lawmakers should do is explicitly empower the FDA or some other agency to regulate cigarettes.

Greater government control over the manufacturing, sale and advertising of cigarettes is long overdue. But controls alone won’t solve the problem. Ultimately, only the millions who light up every morning can do that.