SUPREME COURT MAY REJECT BID TO REGULATE TOBACCO UNDER FDA

Apr. 20-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 -- have
scheduled for Friday their first conference on whether to hear the
case for reviving Food and Drug Administration control of tobacco
sales and advertising.

A decision is expected within a few weeks.

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.