HIGH COURT PUFFING OVER LAST STAND PLEA ON TOBACCO RULES

Even Anti-Smoking Activists Expect Denial Of Appeal By Administration

The Supreme Court may be poised to snuff out the Clinton administration's
last-ditch appeal to regulate cigarettes.

The justices - three of whom are smokers or ex-smokers - are expected to
decide within a few weeks whether to hear the case for reviving Food and
Drug Administration control of tobacco sales and advertising.

Although nothing is certain, even anti-smoking activists are betting the
high court will deny the Justice Department appeal to reinstate the FDA's
assertion of authority to regulate cigarettes as medical devices that
deliver a "drug," nicotine.

The government argues the case's national importance justifies high-court
intervention despite the absence of the usual "split" opinion by circuit
courts.

"The question presented in this case is of urgent public importance,"
Solicitor General Seth P. Waxman pleaded in an unusual petition packed with
policy arguments where legal citations normally are found.

He said the FDA considers its 1996 anti-smoking pronouncement the most
important public health rule-making since before World War II.

"The court of appeals was simply wrong. . . . 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," Mr. Waxman argued.

Current smoking preferences among the justices cannot be officially
confirmed, but Chief Justice William H. Rehnquist is a virtual chain smoker
of cigarettes, Justice Antonin Scalia also smokes cigarettes.

Justice Clarence Thomas was a cigar aficionado but reportedly gave that up.

An industry coalition, united in a single brief filed by Richard M. Cooper
of the Williams and Connolly law firm in Washington, challenged the FDA's
claim that it is preserving public rights to regulate tobacco. Instead, he
said, the FDA usurped Congress' authority to make policy to the point of
making it a federal offense for a service station or convenience store to
sell cigarettes without verifying the purchaser's age.

"There is no reason to grant the writ. The decision of the court of appeals
is correct," said Mr. Cooper, who represented R.J. Reynolds Tobacco Co. and
also spoke for Philip Morris, Lorillard, Brown and Williamson, U.S.
Tobacco, convenience store owners, grocers and tobacco distributors.

The industry contends the Food, Drug and Cosmetic Act of 1938 (FDCA) did
not intend to include tobacco when it authorized regulation of health
products claiming to be safe. That law specifically excluded regulation of
tobacco as a "dietary supplement," but there was no provision barring the
government from defining it as a "drug" or "device."

The brief said 37 percent of adults smoked in 1938; 23 percent smoke now.

In an odd twist, Mr. Cooper argued that smoking's dangers had been
suspected for so long that Congress retained control of tobacco as a
political matter rather than turn it over to the FDA, which by law must ban
"unsafe" products. Two cigarette brands were removed from the market in
the 1950s after making health claims.

"In a series of tobacco-specific statutes in 1965, 1970, 1983, 1984, 1986
and 1992, Congress crafted a national regulatory policy premised on the
continued availability of tobacco products, even though they are deemed to
be unsafe," the industry brief said.

It listed laws barring children from buying cigarettes and governing
advertising and labeling.

Mr. Cooper noted that the FDCA was passed shortly after the repeal of
Prohibition. The ban on alcoholic beverages was begun by constitutional
amendment in 1919 and ended by another amendment in 1933.

"The idea that Congress in 1938 intended to give an administrative agency
the power on its own to institute a new prohibition defies common sense,"
he told the high court.

He said the industry's $246-billion settlement with the states sharply
curbs tobacco advertising and promotions aimed at youths.

"The state attorneys general deal took some steps, but they are very weak,"
said Public Citizen lobbyist Jo Mulhern.

He said the settlement exempts such sports sponsorship as Virginia Slims
tennis and Winston Cup stock car racing, and does not curb outdoor
advertising near schools.

Public Citizen filed friend-of-the-court briefs for 16 organizations in the
lower courts, but so far stayed out of the Supreme Court case, according to
counsel Allison M. Zieve, who conceded it lacks most of the usual criteria
for Supreme Court review.

"I agree with that, but this is incredibly important and should be decided
by the highest court in the land," Miss Zieve said. "I do think cigarettes
are obviously unsafe."

The Aug. 14 decision by a three-judge panel of the 4th U.S. Circuit Court
of Appeals in Richmond - the heart of tobacco country - said that the "FDA
lacks jurisdiction to regulate tobacco products" unless makers claim health
benefits, such as enhancing weight loss.

The full 4th Circuit voted 7-4 on Nov. 10 against rehearing the panel's
decision and said the government appeal "is without merit."

Four votes are needed at the closed conference for the high court to take a
case, but five would be required to reverse the lower court.

It requires but one word - "denied" - to end the matter and uphold the 2-1
appeals court ruling. That would be the outcome if four justices do not
vote to hear the government's appeal.

If four justices do agree to review the case, arguments would be scheduled
for fall. Otherwise, the ballyhooed FDA initiative would remain dead unless
Congress voted the agency authority to regulate tobacco. That is considered
unlikely under present political lineups.

Technically, the lower court decision is binding only in the 4th Circuit,
which covers Maryland, North Carolina, South Carolina, Virginia and West
Virginia, but Mr. Waxman said there likely would be no opportunity to test
the law elsewhere.

The government brief said drugs include "articles (other than food)
intended to affect the structure or any function of the body" and contends
that tobacco manufacturers intend their products to create addiction for
people using them as stimulants, sedatives or appetite suppressants.

Cigarettes are designed "to deliver pharmacologically active doses of
nicotine," Mr. Waxman's brief said.