THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Wednesday, October 16, 1996 TAG: 9610160385
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY PAUL NOWELL, ASSOCIATED PRESS
DATELINE: GREENSBORO LENGTH: 47 lines
North Carolina challenged the authority of the Food and Drug Administration to regulate tobacco products as a drug in a brief filed Tuesday in federal court.
``Congress has always been responsible for placing health and advertising restrictions on tobacco products and for exercising authority over tobacco itself. Now, suddenly, the FDA wants to take over that authority, and the bottom line is they can't,'' Attorney General Mike Easley said in a statement.
Gov. James B. Hunt Jr. and Agriculture Secretary Jim Graham were named as the plaintiffs in the brief, filed by the state Attorney General's Office.
The proposed regulations ``violate the separation of powers principle that is the bedrock of our constitution,'' Easley said.
In August, President Clinton approved a decision by the Food and Drug Administration to classify nicotine as an addictive drug, giving the agency authority to regulate cigarettes and smokeless tobacco.
In rules aimed at curbing teen-age smoking, the FDA is placing restrictions on cigarette advertisements, vending machines and promotions of sporting events.
Four lawsuits filed by cigarette manufacturers and advertising firms have been combined into one lawsuit. North Carolina filed its friend-of-the-court brief on behalf of that lawsuit.
Several cigarette manufacturers, including Winston-Salem-based R.J. Reynolds, filed a brief.
``Congress has considered giving the FDA jurisdiction over tobacco at least 20 different times, and each time it has been defeated,'' said Charles Blixt, an attorney for RJR who was at the courthouse just before the 5 p.m. deadline. ``Every FDA commissioner up to and including David Kessler (the current commissioner) has said the FDA does not have jurisdiction without Congress' direction over tobacco.''
Kentucky also filed a brief in support of the lawsuit, saying it ``speaks as a grower and retailer of tobacco directly affected by the regulations at issue in this case.''
Two other briefs filed with the court on Tuesday by attorneys representing the smokeless tobacco industry, the National Association Convenience Stores and Acme Retail Inc. also seek a summary judgment from Osteen.
Osteen has scheduled a hearing on Feb. 10, 1997, on the request for a summary judgment. by CNB