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William T. Godshall, executive director of SmokeFree Pennsylvania -- a Pittsburgh based activist group -- doubted Capitol Hill would take up the cause, leaving the question of FDA oversight a campaign issue this presidential election year.
"We've been urging Congress to act on this for years," Godshall said. But "the leadership of the Senate and the House have refused to do anything." . . Alice Dalla Palu, executive director of the Coalition for a Smoke Free Valley, called that a Catch-22 argument.
"It's disheartening to have a justice say this drug is so bad that we should really ban cigarettes yet Congress hasn't granted the regulatory authority so we can't. It's like double-speak to me."
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As the financial fate of the tobacco industry continues to play itself out in smaller courtrooms across United States, the U.S. Supreme Court this week effectively charged juries with a monumental new role as the lone tobacco watchdog. . . "This is really an extraordinary indictment of what our democracy has come to," said Professor Richard Daynard of Boston's Northeastern University Law School. "The basic institutions of government -- the executive branch and Congress -- are supposed to protect us. Unfortunately Congress is owned and operated by the tobacco industry."
If we are to protect our children from the harms of tobacco, Congress must now enact the provisions of the FDA rule. Fortunately, those protections have strong bipartisan support: in 1998, 57 Senators supported a bill negotiated by Senators Bill Frist and John McCain containing provisions comparable to those included in the FDA regulation.
So today I call upon the leadership of Congress to take up the bipartisan Frist-McCain legislation.
INFACT, a national corporate watchdog organization, released the report ``Pulling Out All the Stops: Philip Morris' Fight to Block FDA Regulation of Tobacco.'' The report, available online at www.infact.org, documents Philip Morris' concerted campaign over the past six years to block independent oversight by the FDA. ``The Supreme Court found that Congress has not given the FDA authority over the tobacco industry. Their reasoning illustrates that Philip Morris' undue political influence is at the root of this problem, and has powerfully served the tobacco industry's interests once again,'' said INFACT Executive Director Kathryn Mulvey.
``Pulling Out All the Stops'' presents a detailed analysis of how Philip Morris has used everything from lobbying and political pressure to public relations smokescreens to aggressively fight FDA regulation since 1994. The report cites internal tobacco industry documents released through the state of Minnesota's health care cost recovery lawsuit, as well as news articles, to expose tactics such as Philip Morris' 1996 plan to ``[i]mplement a legislation program to block FDA regulation of tobacco.''
This decision closes one door but hopefully opens another.
We opposed the FDA Rule because regulation of cigarettes as "medical devices" was inappropriate and could have led to Prohibition, as the Supreme Court has determined. But federal regulation of cigarettes as cigarettes, dealing with youth smoking while respecting an adult's right to smoke, makes sense for smokers and manufacturers alike. . . We are ready and eager to engage in a useful, positive discussion on these issues.
Jeffrey Cassorla says he watched with an acute sense of powerlessness in the mid-1990s as proposed federal tobacco regulations ruined almost overnight what had been his thriving cigarette-vending-machine business. . . Now, five years later, Cassorla and some 525 other vending-business owners are fighting back.
They have filed a series of lawsuits in federal claims court in Washington, arguing that the FDA action amounts to a violation of the Fifth Amendment's prohibition against the government taking private property without paying the owner just compensation. . . If upheld by the courts, the vendors' suit would represent a watershed case in an increasingly contentious area of law involving differing interpretations of the Fifth Amendment's takings clause.
The clause says: "private property (shall not) be taken for public use without just compensation
[P]rivate property (shall not) be taken for public use without just compensationA strict or loose interpretation of the Fifth Amendment's "takings" clause is at the center of a lawsuit over the FDA's teen access regulations by vending machine operators. Quoted in Richey, W. <i>It's vendors' turn to try to get money back</i>
NPR's Nina Totenberg reports on arguments before the Supreme Court today on whether the Food and Drug Administration can regulate tobacco. . . Noah talks with Kevin Keller, professor of marketing at the Amos Tuck School of Business, Dartmouth University in Hanover, New Hampshire. He joins us to talk about Phillip Morris' new image strategy
Only Justices Stephen G. Breyer and John Paul Stevens strongly defended the Clinton administration's stand. . . What's new about this, Scalia asked, since the health dangers of cigarettes have been documented for decades.
Certainly in 1964, when the surgeon general first warned Americans of the hazards of smoking, ordinary Americans--as well as the FDA--knew of the dangers, Rehnquist said. . . The sharp tone of the questioning came as a surprise. During the 1980s, when the Ronald Reagan administration's policies were being attacked in the courts by liberal interest groups, the Supreme Court ruled that judges should defer to the decisions of executive agencies.
Waxman relied on that doctrine Wednesday, but without much success.
"Big Tobacco cannot and should not be able to market a deadly product to children, manipulate its addictive qualities, lie to the American public for decades about its safety, and be able to get away with it," said John R. Seffrin, Ph.D., chief executive officer of the two-million-member Society. "The law doesn't allow it, and the American Cancer Society believes no interpretation of that law should provide Big Tobacco with special protection." . . According to news reports, the tobacco industry, which has argued for years that tobacco was not addictive or dangerous, now claims tobacco is too dangerous to regulate.
There's trouble in tobacco-land. In advance of Supreme Court arguments over the Food and Drug Administration's efforts to regulate tobacco, industry insiders are conceding to congressional backers that the government's case is strong and that the FDA does have jurisdiction over its product. Court watchers, however, are split on which way the justices will go. The case will be important in determining how Big Tobacco spends its political dollars in 2000, says an industry insider. A slim victory before the court would push the industry to fight the election of foes out of fear they'd appoint antitobacco judges who would side with the FDA in any subsequent case.
The federal Food, Drug & Cosmetic Act applies to any product "intended to affect the structure or function of the body." Bert W. Rein, of Washington, D.C.'s Wiley, Rein & Fielding, who represents Brown & Williamson Tobacco Corp, said that if this language is applied to items such as cigarettes that make no health-related claims, FDA jurisdiction could be expanded beyond all limits. Industry briefs say this could include coffee makers, guns and roller coasters.
The industry also argues that the FDA position requires federal courts to defer excessively to administrative agencies, allowing them to exercise authority Congress never intended to give them.
And, they argue that Congress and the FDA have consistently acted as though the agency had no general power to regulate tobacco. . . The federal Food, Drug & Cosmetic Act applies to any product "intended to affect the structure or function of the body." Bert W. Rein, of Washington, D.C.'s Wiley, Rein & Fielding, who represents Brown & Williamson Tobacco Corp, said that if this language is applied to items such as cigarettes that make no health-related claims, FDA jurisdiction could be expanded beyond all limits.
WHAT: American Lung Association/Public Citizen background briefing for reporters covering U.S. Supreme Court, tobacco issues . . WHEN: 11 a.m., Tuesday, Nov. 16
WHERE:
Public Citizen
FRIEND OF COURT BRIEFS:
FOR THE FDA
The American Cancer Society. . . Action on Smoking and Heath. John Banzhaf, Washington, DC. . . Public citizen and other consumer groups. Allison Zieve, Washington, DC. . . FOR BROWN & WILLIAMSON
Reps. Cass Ballenger and Howard Coble and the Washington Legal Foundation. Richard Samp, Washington, DC.
The nine justices, including cigarette smokers Chief Justice William H. Rehnquist and Justice Antonin M. Scalia, will determine whether the federal government can clamp down on cigarette sales to minors, even requiring buyers to show identification. . . The tobacco case, which may influence everything from public health policy to the location of cigarette machines, is the most closely watched case in the Supreme Court's new term that begins Monday.
No date has been set for arguments in the case.
The issue here is who has the power to establish the social policies of the country. Is it the elected officials in Congress or the unelected bureaucrats in the Food and Drug Administration? Charles A. Blixt, executive vice president and general counsel of R.J. Reynolds Tobacco Company. Maybe it's the unelected CEOs of major corporations. Quoted in <i>Court to decide on leaf regulation / Can the FDA treat tobacco as a drug?</i>
The legal question is whether Congress put tobacco under the FDA's jurisdiction with a Depression-era law that gave the agency power over products ``intended to affect the structure or any function of the body.''
With Congress having abandoned efforts to delegate that authority more explicitly to the FDA, the high court case now looms as the key fight on the issue.