- The Washington Times - Wednesday, March 22, 2000

All nine Supreme Court justices yesterday acknowledged that smoking is dangerous but ruled 5-4 that Congress never gave the Clinton administration the power to regulate tobacco marketing.
"No matter how 'important, conspicuous, and controversial' the issue, and regardless of how likely the public is to hold the Executive Branch politically accountable, an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress," the court ruled.
A few hours after the decision ended FDA control of cigarettes history's most far-reaching use of executive power to curb legal products in the name of public health President Clinton, in New Delhi, revived his call for Congress to put into law the restrictions he fostered by fiat in 1996.
"If we are to protect our children from the harms of tobacco, Congress must now enact the provisions of the FDA rule," Mr. Clinton said, pleased that the court said tobacco use by the young is "the single most significant threat to public health in the United States."
The Clinton crusade to snuff out most tobacco advertising and much of the industry's marketing program by executive action was widely compared to Prohibition, imposed by the 18th Amendment on Jan. 16, 1919, and ended by the 21st, on Dec. 5, 1933.
The court's opinion noted tobacco's "unique political history" and its huge impact on the U.S. economy in warning that courts cannot let federal agencies exercise authority they do not have.
Joining the ruling written by Justice Sandra Day O'Connor were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justices Rehnquist, Scalia and Thomas were the court's only smokers when they took the case.
"Congress, for better or for worse, has created a distinct regulatory scheme for tobacco products, squarely rejected proposals to give the [Food and Drug Administration] jurisdiction over tobacco, and repeatedly acted to preclude any agency from exercising significant policy-making authority in the area," Justice O'Connor wrote.
The dissenters lampooned what they called the majority's counterintuitive reasoning.
"The upshot is that the court today holds that a regulatory statute aimed at unsafe drugs and devices does not authorize regulation of a drug (nicotine) and a device (a cigarette) that the court itself finds unsafe," Justice Stephen G. Breyer wrote in a dissent joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.
Justice Breyer said the regulations were justified because of the 400,000 deaths each year attributed to smoking, which exceed the combined toll of AIDS, car accidents, alcohol, homicides, illegal drugs, suicides and fires.
Justice O'Connor sharply warned dissenting colleagues against judicial activism in support of regulatory overreaching, regardless of the hazards.
Both the Justice Department and FDA refused comment. Mr. Clinton had called the tobacco regulations "a historic nationwide effort" on which he felt actions against gun ownership also might be based.
Forty states had joined a court brief supporting the FDA rules.
Many of the marketing restrictions the administration wanted to impose have since been accepted in a negotiated $246 billion settlement with state attorneys general seeking reimbursement for treating Medicaid patients with tobacco-linked illnesses. The Justice Department sued the industry in September, seeking a similar payoff.
R.J. Reynolds Tobacco Co. now is willing "to begin a dialogue with Congress on reasonable options for additional regulation," said Charles A. Blixt, its executive vice president.
"Clearly, cigarettes do not meet the definition of a drug or a medical device under the federal Food, Drug and Cosmetic Act," Mr. Blixt said.
"Business and industry throughout the nation ought to breathe a sigh of relief," said Mark Smith of Brown & Williamson Tobacco Co., the lead plaintiff in suing the FDA.
Mr. Clinton has long seemed to recognize he was on shaky legal ground, particularly after Congress failed to pass his 1997 proposal that would specifically authorize FDA to do what he already had it do.
The president in 1998 put Vice President Al Gore in charge of generating national opinion to support a legislative effort to "affirm the FDA's full authority to regulate tobacco products."
In announcing the regulations in 1996, Mr. Clinton said, "The action being taken today is the right thing to do, scientifically, legally, and morally."
From 1914 when the FDA was the Bureau of Chemistry within the Agriculture Department until the president's executive order in 1996, FDA officials maintained they had no authority to regulate tobacco unless products were marketed with therapeutic claims.
In 1929, Congress specifically rejected a bill to amend the Food and Drug Act of 1906 to add tobacco. Since then, similar measures have failed repeatedly.
"FDA's proposed regulations represented one of the most extraordinary grasps for regulatory power by a federal agency in our nation's history," said Richard Samp, chief counsel for the Washington Legal Foundation, which aimed its denunciations at "unelected bureaucrats" rather than the president, who directed the campaign.
"I'm surprised it was that close, but I'm happy that we won," said Kenneth S. Geller, attorney for the Product Liability Advisory Council, which opposes unwarranted government regulation of a legal industry.
John F. Banzhaf, the George Washington University professor who runs Action on Smoking and Health, predicted the decision "will put tremendous pressure on Congress, especially during an election year, to ensure that nicotine does not remain the only totally unregulated drug."
Dr. Randolph D. Smoak Jr., president-elect of the American Medical Association, expressed deep disappointment at what he called the court's rejection of a call by the public health community for the FDA to have authority over tobacco. He said the AMA backs a law to "not let big tobacco escape federal scrutiny."

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