.c The Associated Press

WARM SPRINGS, Va. (AP) The Food and Drug Administration would be forced to
ban cigarettes if given the power to regulate tobacco, industry lawyers told
a federal court Monday.

``Once a drug has been found to be unsafe, there is no freedom of choice to
use it,'' Richard Cooper, an attorney for cigarette makers told a threejudge
panel of the 4th U.S. Circuit Court of Appeals.

But Acting U.S. Solicitor General Walter Dellinger said the FDA has no
intention of banning tobacco and said such a decision would be up to
Congress.

Cigarette makers were in court to appeal an April 25 ruling from a North
Carolina judge that said the FDA can regulate tobacco as a drug. The FDA,
meanwhile, is appealing the judge's decision to revoke its power to regulate
the advertising of tobacco products.

In the coming months, Congress will consider a proposed settlement between
the tobacco industry and the 40 states that sued to recover smokingrelated
health costs. The proposal, which would limit cigarette advertising, could
make the legal arguments over FDA regulation moot.

But if Congress fails to pass legislation stemming from the settlement,
tobacco's future would remain in the federal court's hands.

With the authority to regulate tobacco, Cooper said, there would be ``nothing
to stop the FDA from banning tobacco products. That's what's at stake in this
case. Decisions of this magnitude are to be made by legislation and not by
unelected administrative bodies.''

Dellinger said the FDA only wants to restrict the sale of cigarettes to
minors so that they don't become addicted.

A ban on all tobacco sales could have adverse health affects, he said,
because approximately 40 million adult smokers are addicted to nicotine and
would be unprepared for a sudden withdrawal.

Judges Donald Russell and James Michael repeatedly questioned why the FDA was
intervening now when the government has known for 60 years that nicotine is
unhealthy.

``You've got the same nicotine going into the cigarettes then as you do
know,'' Russell said.

But Judge K.K. Hall appeared to side with the FDA, saying ``The appreciation
of the danger is greater now than it was at that time.''

Dellinger said the government only recently learned how cigarette
manufacturers have been manipulating the level of nicotine in their products
so that smokers are given the necessary dosage to satisfy their cravings.

On the question of regulating tobacco advertising, Dellinger argued that if
the FDA has the authority to regulate sales of cigarettes, than it should
also regulate the advertising that generates those sales.

Cooper argued that under laws governing the FDA, the agency must be satisfied
that drugs are safe if they are to remain on the market. The FDA, the
attorney said, has already declared tobacco products to be unsafe.

In another development, a federal judge in West Virginia has revoked the
classaction status of a lawsuit and settlement against Liggett Group Inc.
that would have affected millions of potential claimants nationwide.

U.S. District Judge Charles H. Haden ruled Aug. 5 that making smoker Earl
Walker Jr.'s lawsuit into a classaction case would have opened Liggett up to
claims by too many people.

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