ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Saturday, April 26, 1997 TAG: 9704280054
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: GREENSBORO, N.C.
The law that set up the Food and Drug Administration defines "drug," the judge ruled, and tobacco fits that definition.
In what tobacco foes called a monumental defeat for the industry, a federal judge ruled for the first time Friday that the Food and Drug Administration can regulate tobacco as a drug. But he said it can't restrict cigarette advertising.
Both the government and the cigarette industry said they will appeal.
U.S. District Judge William Osteen, in a ruling issued in the heart of tobacco country, rejected the industry's biggest argument: Congress never intended for the FDA to regulate tobacco and the government has not proved tobacco is a drug under the law.
``The court finds that tobacco products fit within the Food, Drug and Cosmetic Act's definition of `drug' and `device,''' Osteen wrote, adding there was no intent by Congress to deny the FDA authority to regulate tobacco products.
``This decision is the single most devastating loss the tobacco industry has ever suffered in the courts of the United States,'' said Matthew Myers of the Campaign for Tobacco-Free Kids.
President Clinton pronounced it ``a historic and landmark day for the nation's health and children.''
``With this ruling,'' he said, ``we can regulate tobacco products and protect our children from a lifetime of addiction and the prospect of having their lives cut short by the diseases that come with that addiction.''
The ruling means the FDA's crackdown on tobacco sales to minors - by requiring stores to demand photo identification from people in their 20s - will stand. It also means the FDA can regulate vending-machine cigarette sales.
The ruling bars a host of FDA restrictions scheduled to take effect Aug. 28. They include a ban on tobacco billboards within 1,000 feet of a school or playground; limits on ads in teen-oriented magazines; and a ban on hats, T-shirts and other materials with cigarette names.
Also barred is the FDA's plan to ban brand-name sponsorship of sporting events, a rule originally scheduled to begin next year.
``Joe Camel lives. ... Winston Cup [car racing] is alive. Billboards are alive,'' said John Fithian, an attorney for the American Advertising Federation.
Because the ruling offered something to both sides, the industry reaction was mixed. Cigarette companies have fiercely resisted FDA regulation for fear that once the agency gets such authority, it will try to ban nicotine.
Wall Street clearly saw it as a defeat for tobacco: Stock prices tumbled.
Charles Blixt, general counsel for RJR Tobacco Co., welcomed the part of the ruling striking down restrictions on advertising and promotions.
``We're disappointed the court did not find as a matter of law that the FDA has absolutely no jurisdiction over tobacco products. What it did say is that would be determined as a question of fact in front of this court and in the appellate process,'' Blixt said.
One of tobacco's staunchest opponents, Rep. Henry Waxman, D-Calif., said the ruling could open the door to an outright ban on cigarettes. But more than anything else, Waxman said, ``what we need as a policy in this country is to stop kids from smoking. Tobacco companies have got to give up the kids' market.''
The ruling could also weaken the tobacco industry's position in talks between cigarette makers and state attorneys general from around the country. Philip Morris and RJR are looking for a settlement that would protect them from lawsuits in exchange for hundreds of billions of dollars in payments.
``It's wonderful for us, and strengthens our position at the bargaining table,'' Mississippi Attorney General Michael Moore, a major participant in the settlement talks, told CNN. ``We think this will set the tobacco companies back on their heels a bit.''
The advertising industry had joined the tobacco industry's challenge of the FDA regulations, arguing that the curbs on advertising violate the First Amendment. Osteen, however, did not rule on the First Amendment question.
Instead, he said the FDA could not justify advertising restrictions under the specific law the agency cited: the Food, Drug and Cosmetic Act, which established the FDA. That means the government will have to rethink any efforts to curb tobacco promotions.
Virginia Attorney General Jim Gilmore, who sided with the industry in a friend-of-the-court brief, said that the advertising portion of Osteen's ruling ``is a tremendous victory for NASCAR and other tobacco-sponsored sporting events.''
The presumptive Republican nominee for governor this year also said that the impact of FDA regulation of tobacco as a drug is unpredictable.
``This is going to be a long process of evolving regulations,'' he said.
In his court brief, Gilmore maintained that increased federal oversight of tobacco products - Virginia's largest export - will cause "inevitable adverse impact on the state's economy."
His position has been widely criticized by Democrats who claim that Gilmore is cozy with tobacco interests.
"I entered this case to protect the livelihood of Virginia's farmers in Southside and the Southwest," Gilmore said Friday. Predicting the decision will be appealed, he added, "As this matter proceeds, I will continue to stand up for the working families of Virginia.''
Rep. Rick Boucher, D-Abingdon, said he viewed the ruling as preliminary and didn't believe it would affect tobacco farmers in Southwest Virginia.
"While tobacco farmers are naturally interested in these legal proceedings, their economy will remain strong whatever the result," he said.
He also held out hope that the tobacco industry could win back in negotiations what it lost in court, referring to the ongoing talks to settle the lawsuits that several states have filed against tobacco companies to recoup smoking-related health costs.
Rep. Virgil Goode, D-Rocky Mount, hailed the decision to allow tobacco advertising to continue unrestricted while regretting that the judge upheld FDA regulation of the leaf.
"It is too costly for federal agents to try and enforce tobacco product access," Goode said. "The millions of dollars that these agents would spend could be used in other areas where society needs help."
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