JUSTICES TO DECIDE IF FDA CAN REGULATE CIGARETTES AS A DRUG

WASHINGTON -- The Supreme Court agreed to decide Monday whether the
federal government has the authority to regulate cigarettes as a drug.

The court's decision to hear an appeal by the Clinton administration
marks a small victory for the president's effort to discourage
children from smoking.

At issue are the strict regulations imposed by the Food and Drug
Administration on the sale and advertising of cigarettes and smokeless
tobacco to minors. Tobacco companies and retailers have successfully
argued that the FDA lacks the statutory authority to regulate tobacco.

Texas joined 38 other states in successfully urging the justices to
hear the president's appeal. The states argued that tobacco products
have imposed enormous health costs on the nation and should be regulated.

Texas settled its lawsuit with tobacco companies in January 1998 for
$17.6 billion to recover its Medicaid costs for treating victims of
smoking-related diseases.

The Clinton administration appealed a ruling by the 4th U.S. Circuit
Court of Appeals that Congress never intended to give the FDA
authority to regulate their products.

The Clinton administration argued that the FDA may regulate tobacco as
a drug under the Federal Food, Drug, and Cosmetic Act. The FDA
concluded that tobacco is a drug after reviewing scientific evidence
showing that the nicotine in tobacco is addictive and acts as a
sedative, stimulant and appetite suppressant, much like other drugs
that the agency regulates.

FDA's controversial regulations prohibit the sale of cigarettes and
smokeless tobacco to anyone younger than 18, require retailers to
check the identification of would-be tobacco buyers younger than 27
and restrict vending-machine sales of cigarettes and smokeless tobacco
to adult-only locations.

The agency also requires that print ads appear in black and white,
except in adult publications; bans outdoor advertising within 1,000
feet of schools and public playgrounds; prohibits the distribution of
clothing and other products that bear a tobacco company logo; and bars
tobacco companies from sponsoring of athletic, cultural or other
events under tobacco brand name.

U.S. Solicitor General Seth Waxman, pressing Clinton's appeal to the
justices, noted that 400,000 people die annually in the United States
from smoking-related diseases. Most of the adults who smoke began as
children, Waxman added.

"Unless reversed by this court, the panel's ruling will deprive the
public of an unparalleled opportunity to prevent millions of children
from beginning a highly addictive habit that often leads to premature
death," Waxman wrote.

The tobacco companies argued that Congress never intended for the FDA
to regulate tobacco. Instead, Congress has passed regulating
legislation that requires the surgeon general's warning on cigarette
cartons and bans smoking on commercial airplanes, the companies argued.

"Thus, owing to their widespread use, national regional economic
importance, perceived risks, and lack of therapeutic benefits, tobacco
products have long presented public-policy issues very different from
those presented by foods, drugs, medical devices and cosmetics," wrote
the companies' lawyer, Richard Cooper.

The tobacco companies challenging the FDA include Brown & Williamson
Tobacco Corp., Philip Morris Inc., Lorillard Tobacco Co., R.J.
Reynolds Tobacco Co. and United States Tobacco Co. Joining them were
the National Association of Convenience Stores and the North Carolina
Tobacco Distributors Committee Inc.

The high court will hear arguments from the Clinton administration and
tobacco companies in the fall or early next year and render its
decision by July 2000.