CONGRESS'S ROLE ON TOBACCO

The U.S. Supreme Court justices heard arguments Wednesday in a case testing
the Food and Drug Administration's authority to regulate the nicotine in
tobacco products. The skeptical tenor of the questioning indicates that the
court is likely to issue an opinion that rejects the agency's assertion of
jurisdiction, wiping out the agency's 1996 initiative aimed at preventing
tobacco companies from spreading nicotine addiction by selling and marketing
their deadly products to young people. That would be a shame.

It would have been preferable to avoid this showdown, either by Con gress'
passing legislation specifically affirming the FDA's power over cigarettes
or by tobacco firms voluntarily agreeing to the agency's controls. But a
sensible reading of the evidence supports the FDA's conclusion that tobacco
products are drugs and nicotine delivery "devices" subject to regulation. To
decide otherwise would misread the statutory language to perpetuate
tobacco's status as the only addictive drug exempt from federal regulation.

It is true, of course, as Justice Antonin Scalia observed, that the dangers
of smoking have been known for decades and the FDA has done nothing about
it. But to use the FDA's past failure to assert jurisdiction over cigarettes
as a basis to disallow it from doing so now would reward tobacco
manufacturers for sleazy and deceptive conduct that hid their efforts to
manipulate nicotine content.

Two events caused the FDA to reevaluate the question of whether it had
jurisdiction over cigarettes. The first was the appointment of a
commissioner, David Kessler, with the courage to take on Big Tobacco and its
political contributions. The second was the revelation of previously secret
tobacco industry documents, which showed that cigarette makers intended
their products to "affect the function and structure of the body."

Congress, meanwhile, is so beholden to tobacco money that it has never
cracked down on the industry. But Congress has also had plenty of
opportunity to deny the FDA's authority to act in this area. Tellingly, it
has chosen not to.

Justice Sandra Day O'Connor indicated she saw a contradiction in having the
agency that is charged with making sure drugs sold to the public are safe
also regulate a deadly product like cigarettes. She suggested that if the
FDA did have authority over tobacco products, its only regulatory option
would be to ban them completely. But the statute does not require that
extreme remedy. A wise decision would grant the FDA leeway to apply existing
law and common sense.

THE NEW YORK TIMES.