GOVERNMENT CANNOT REGULATE TOBACCO AS DRUG

WASHINGTON - In a big victory for the cigarette industry, the Supreme Court
ruled 5-4 today that the government does not have the authority to regulate
tobacco as an addictive drug.

The justices declared that the Food and Drug Administration had reached
beyond its authority in 1996, when it reversed its own decades-old policy
and moved to crack down on cigarette sales to minors. "By no means do we
question the seriousness of the problem that the F.D.A. has sought to
address," Justice Sandra Day O'Connor wrote for the court, acknowledging
that the agency had shown that "tobacco use, particularly among children
and adolescents, poses perhaps the single most significant threat to public
health in the United States."

But, Justice O'Connor concluded, Congress simply did not give the F.D.A.
the authority it sought to exercise over tobacco.

The regulations at issue in the case (Food and Drug Administration v. Brown
and Williamson Tobacco Corporation, No. 98-1152) prohibit the sale of
cigarettes or smokeless tobacco to people under 18 and require retailers to
check the identification of those under the age of 27.

But the court ruled today that it is up to Congress to decide how much
regulation of tobacco, and what kind, the government should impose. In
recent years, federal, state and local lawmakers have placed more and more
restrictions on tobacco use, and there is no sign that that trend will
change. But today's decision was nonetheless a big disappointment for the
Clinton administration, which had embraced F.D.A. regulations as its main
anti-tobacco initiative, and for the 40 states who sided with the
administration.

The tobacco industry had argued in part that, since the F.D.A. had
concluded that cigarettes were dangerous, it logically ought to move to ban
them altogether -- assuming it was found to have jurisdiction - rather than
regulate them.

The United States Court of Appeals for the Fourth Circuit, in Richmond,
sided with the industry in a 2-to-1 ruling in August 1998. The appeal from
that case led to today's decision.

When the high court heard arguments on Dec. 1, several justices were openly
skeptical of the government's arguments, partly because for decades after
it was created in 1938 the F.D.A. maintained it had no authority to
regulate smoking, then switched its position in 1996.

In December, Justice O'Connor said regulating smoking "just doesn't fit"
within the agency's authority. Chief Justice William H. Rehnquist and
Justice Antonin Scalia were similarly skeptical then, so it was no surprise
today that they joined Justice O'Connor's decision, as did Justices Anthony
M. Kennedy and Clarence Thomas.

On the other hand, the lineup of dissenters provided a small reminder that
the tribunal's rulings are not always predictable based on its members'
comments from the bench. In December, Justice David H. Souter also seemed
unconvinced by the government's arguments. But today, he sided with the
government in dissenting from the majority, along with Justices John Paul
Stevens, Stephen G. Breyer and Ruth Bader Ginsburg.