FDA IS PROPER AGENCY TO REGULATE TOBACCO

THE CLINTON administration should vigorously pursue a review by the full U.S.
Court of Appeals for the Fourth District of a ruling last week that the Food
and Drug Administration has no authority to regulate cigarettes.

The 2-to-1 decision, by a three-judge panel in Richmond, Va., was a major blow
to the Clinton administration, but the vote was so close and the dissenting
judge offered such strong counter arguments that a review by the full,
11-member court is in order.

The panel reversed a 1997 decision by a North Carolina judge affirming FDA
rules designed to prohibit the sale of cigarettes to youngsters with the
exception of regulations related to advertising and marketing.

The prevailing judges argued that Congress never intended that the FDA have
power over tobacco when it passed the law establishing the nation's food and
drug agency in 1938. They also said they did not accept the FDA's argument
that
through the companies' actions and consumer behavior it could show that the
manufacturers intended to sell the products for their drug effects.

The judges' reasoning ignores a wealth of information about the content and
health effects of cigarettes that has been made public in the past few
decades,
especially recent revelations about the addictive properties of nicotine and
how manufacturers manipulate nicotine levels. Dissenting Judge Kenneth K. Hall
noted that the majority on his panel did not dispute that tobacco products
deliver a drug.

"Inasmuch as cigarettes and smokeless tobacco are responsible for illness and
death on a vast scale, FDA regulations at curbing tobacco use by children
cannot possibly be contrary to the general intent of the FDA to protect public
health,". Hall wrote. If Congress had been doing its job, it would have passed
some form of tobacco legislation by now that would have included a definition
and boundaries of FDA authority over tobacco.

Heavy tobacco industry lobbying, however, thwarted the efforts of
health-conscious lawmakers such as Senator John McCain, R-Ariz., to push
through comprehensive legislation aimed at keeping cigarettes out of the
mouths
of America's young people.

Congress still needs to act, but at the least, the Clinton administration
deserves a full appellate court hearing.

1998 San Francisco Chronicle

Checked-by: Ghamal de la Guardia