THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Thursday, December 14, 1995 TAG: 9512140540
SECTION: SPORTS PAGE: C1 EDITION: FINAL
SOURCE: BY BOB ZELLER, STAFF WRITER
DATELINE: GREENSBORO, N.C. LENGTH: Long : 163 lines
The battle lines over the proposed Food and Drug Administration's tobacco regulations, including those aimed at the NASCAR Winston Cup series, have been drawn in Washington.
But the fight may be decided in the heart of tobacco country under the high ceilings of the main federal courtroom in Greensboro.
With the somber portraits of old judges staring down from the walls of the cavernous, oak-paneled room, U.S. District Judge William Osteen will referee the legal fight as the nation's tobacco industry battles to keep the FDA from regulating the product.
The stakes are high. If the FDA wins, tobacco comes under the control of the federal agency, with far-reaching, multimillion-dollar implications, including dramatic changes in how tobacco companies can participate in sports marketing such as the sponsorship of NASCAR and its teams.
R.J. Reynolds Tobacco Co. alone pours tens of millions of dollars into motor racing sponsorships each year. The company won't reveal figures, but estimates peg it at more than $10 million a year. RJR's involvement stretches from the Winston Cup series, which it has sponsored for 25 years, down to NASCAR's weekly short-track series at small raceways around the country.
But new restrictions may be inevitable.
``It's just because of societal changes,'' said driver Kyle Petty, who supports RJR but sees the legislation as unavoidable. ``I think society as a whole is saying, `We don't want this anymore. If you guys want us to get off your backs, you're going to have to change.'
``I would hope that we can race for the Winston Cup for another 25 years under the rules the way they are now,'' Petty said, ``but I don't see that being a possibility.''
If the rules do change, would RJR stick around under the FDA's thumb?
``I am not sure whether it would continue to be a viable expenditure for us at the current level we are spending,'' said T. Wayne Robertson, president of RJR's Sports Marketing Enterprises. ``We would not spend it if we weren't getting anything out of it.
``We also had Formula One sponsorships, which we no longer have. That did not continue to be an efficient method for us to advertise.''
One reason for that, he said, was that France and Germany banned cigarette brand names and advertising at races and on cars.
In Washington, about the only thing both sides agree on is that the FDA's effort to regulate tobacco is a new and different challenge to the tobacco industry.
Anti-smoking forces believe the tobacco industry may finally have a fight it can't win, while the tobacco industry is stridently confident it can beat the FDA, either in court or in Congress.
So confident, in fact, that the tobacco lobby has not yet rallied behind the supporters who already have taken up the fight in Congress.
``We aren't taking a position on any Congressional legislation until we understand better what is going to be proposed from various congressmen,'' said Tom Lauria, spokesman for the Tobacco Institute, the Washington arm of the tobacco industry. ``Our position is were going to vigorously pursue the matter in the courts.''
The tobacco industry decided that the legal battle would be better fought on home turf. On the very day of the FDA announcement, Aug. 10, RJR and Philip Morris attorneys called a press conference in New York announcing that a suit had been filed - but they filed the suit in North Carolina.
In the next eight weeks, three more suits were filed by other tobacco companies and groups. The four suits against the FDA were consolidated into one case on Nov. 21. The FDA filed a motion to dismiss, but that motion will not be heard until after the first of the year.
Legal Times, a Washington law and lobbying weekly, quoted a number of legal experts in its Aug. 21 edition who said the suit was premature because the FDA hasn't yet taken any definitive action.
The Legal Times article also said tobacco companies ``can probably count on a generous reception in court'' because Osteen made a decision in a recent tobacco case that ``infuriated anti-tobacco activists.''
In the meantime, tobacco supporters in Congress have been working to ``reform'' the FDA, a move that could take it out of the business of regulating tobacco.
``We have had a whole different approach in the works for the last three months,'' said Rep. Richard Burr (R-N.C.), a member of the House Commerce Committee that is considering the reform. ``The FDA will not be the same agency when we get through.
``We will be successful on the FDA reform, so the legislation (against the FDA initiative) may not be necessary. It's our intent not to run with any legislation.''
The FDA proposal would declare that nicotine is an addictive drug. And in an effort to curtail youth smoking, it would put the following restrictions on sports marketing:
Tobacco companies would be prohibited from sponsoring races and sporting events under a brand name, but could continue sponsorships under the existing corporate name. The Winston Cup series could become, for example, the RJR Cup.
Tobacco companies would be allowed to sponsor race teams under brand names of cigarettes, but any advertising on the cars and uniforms would have to be black-and-white, text-only ads.
Tobacco companies would be banned from selling or giving away T-shirts, hats, bags and other items that carry a tobacco brand name.
The FDA proposal is significantly more far-reaching than sports sponsorships. Other parts of the proposal include regulations on billboard advertising, restrictions on youth access to tobacco, a federal ban on underage cigarette sales and an industry-funded $150 million annual educational program.
So why target sports sponsorships?
``Young kids like race cars,'' said Scott D. Ballin, chairman of the Coalition on Smoking or Health, the primary anti-tobacco lobby in Washington. ``There's something very exciting about racing, even to young kids. And these (drivers) are idols that many of these kids look up to.''
``Adult smoking rates have been declining for some time,'' said Mitch Zeller, special assistant for policy in FDA Commissioner David Kessler's office. ``But you can't say the same thing about kids. The administration felt it was important to do something, and to do something that had a chance of making a dent.
``What we're trying to do with sponsorships is break the link between a specific product and an event. There's an association between the use of a specific brand of cigarettes, which are deadly and addictive, and all of the fun and excitement of sports.''
Countered Robertson: ``They have tried to camouflage this as a youth-smoking issue. It's simply not that. The reason people smoke is because of peer pressure and because of parental influence.''
NASCAR is enjoying a tremendous growth spurt, and many believe the sport would continue to thrive with or without tobacco. Speculation often focuses on Coca-Cola and Dupont as replacements for RJR, if only because those two companies are so large. But NASCAR President Bill France, a smoker of RJR's Vantage brand, says he has no intention of abandoning the company.
``I don't feel like Reynolds as a series sponsor is a detriment to the growth of this sport,'' he said. ``This horse has got four good legs, and it's a damn good horse.''
When the proposal was unveiled Aug. 10, the FDA announced a 90-day comment period ending Nov. 9. It was extended to Jan. 2 at the request of the tobacco industry.
``We are going to receive perhaps more comments on this proposal than any other proposal in recent memory,'' said the FDA's Zeller. ``Last week, we passed 200,000.''
Zeller would not give a time frame on how long the entire process would take, but he did say that on its recent food labeling regulations, the FDA issued a final rule 12 months after the announcement of the proposed rule.
Whatever the FDA does, short of nothing, the matter is headed to court. And it likely will focus on whether the FDA has legal jurisdiction to take the action it has.
And whatever the outcome of the battle, Ballin and others in the anti-smoking movement believe that regulation is inevitable.
``This is not going to happen overnight,'' said Ballin. ``Whenever you're dealing with the tobacco industry, they're going to drag things out as long as possible. They'll fight everything tooth and nail. But I think that this will eventually happen, whether it's in six months, a year or a year and a half.'' ILLUSTRATION: Graphic
PROPOSED RESTRICTIONS
The FDA proposal would declare that nicotine is an addictive
drug. And in an effort to curtail youth smoking, it would put the
following restrictions on sports marketing:
Tobacco companies would be prohibited from sponsoring races and
sporting events under a brand name, but could continue sponsorships
under the existing corporate name. The Winston Cup series could
become, for example, the RJR Cup.
Tobacco companies would be allowed to sponsor race teams under
brand names of cigarettes, but any advertising on the cars and
uniforms would have to be black-and-white, text-only ads.
Tobacco companies would be banned from selling or giving away
T-shirts, hats, bags and other items that carry a tobacco brand
name.
by CNB