Smoke Wafts to Congress

The Supreme Court’s ruling that the FDA lacks legal authority to regulate tobacco was predictable and logical in a way, given this court’s keen interest in articulating a more limited federal role. However, with a quarter of all adults still puffing away and as many teens as ever picking up the habit, cigarettes remain the nation’s greatest public health threat. Their regulation should remain a high priority for Congress. The first steps are obvious; congressional interest in taking them is less so.

A 5-4 court majority Tuesday found that Congress had for decades implicitly precluded the FDA from regulating tobacco products. Consequently, the court ruled, the agency overstepped its authority by cracking down in recent years on cigarette sales to minors.

However, Justice Sandra Day O’Connor, writing for the majority, was mindful of the health danger tobacco use poses: “By no means do we question the seriousness of the problem that the FDA has sought to address.”

A third of high school students smoke, a percentage unchanged from a decade ago. Regardless of why they take that first puff, most eventually try to quit. Many will be unable to shake the grip of nicotine, the addictive agent in cigarettes. Keeping cigarettes away from teens will mean fewer adult smokers--and less cancer and heart disease in the future.

What should happen now? In the wake of Tuesday’s decision, even Philip Morris, the nation’s largest cigarette maker, is calling for “appropriate federal oversight” if only to cut the mushrooming liability risk it and the other companies face in lawsuits filed by smokers across the nation. And while the court ruled Congress had not authorized the FDA to regulate tobacco, it didn’t say that Congress couldn’t do so.

As a first step, then, Congress should permit the agency to stamp out cigarette sales to minors. As part of the 1998 settlement of litigation brought by 46 state attorneys general, the tobacco industry ceased its most egregious efforts to recruit junior smokers. Joe Camel has stubbed out his last cigarette. But a federal floor on the smoking age, backed up with funds to state and federal enforcement agencies, would go further.

Smokers are entitled to also know what they are inhaling. The FDA should be able to require cigarette makers to disclose the contents of their products and label cigarette packages to more accurately warn of smoking’s risks. Beyond this, California’s workplace smoke ban should become a model for other states. The federal Occupational Safety and Health Administration can help push in that direction.

Proposals for government regulation of nicotine levels in cigarettes may also at some point make sense. But the first priorities are to keep children from starting and nonsmoking adults from having to endure the secondhand smoke of others.

The Supreme Court has thrown this issue squarely to Congress. Should our lawmakers punt now, they will deserve voters’ blame.