FDA tobacco regulations debated in court

February 10, 1997
Web posted at: 2:00 p.m. EST

GREENSBORO, North Carolina (CNN) -- Congress has never given the Food and Drug Administration jurisdiction over tobacco, an R.J. Reynolds lawyer argued Monday as the industry tried to block regulation of cigarettes as a drug.

New FDA rules, set to begin taking effect February 28, would restrict advertising in a bid to curb smoking by minors.

The major tobacco companies consider the rules a threat to the First Amendment and claim the FDA lacks authority to regulate sales and advertising.

"Before us today is an extraordinary exertion of power by a federal agency," RJR lawyer Richard Cooper said at a hearing before U.S. District Judge William Osteen. "The FDA wants to exert its jurisdiction over the entire tobacco industry."

Cooper said the cigarette makers believe the FDA wants to "ban this industry."

Justice Department lawyers were to argue their case later Monday before Osteen, who was a tobacco industry lobbyist two decades ago.

FDA Commissioner David Kessler, who has said he will step down later this month, was among those in the crowded courtroom.

Decision rests with judge

Osteen was asked to decide without a trial that the FDA lacks legal authority to regulate cigarettes. The industry also could seek an injunction to block the regulations from going into effect until a trial of its lawsuit is over.

"The tobacco industry sees this as the first shot over the bow in the effort to outlaw cigarettes," said Wake Forest University law professor David Logan, who has closely monitored a legal battle over the regulations.

Tobacco industry ally Rep. Edward Whitfield, R-Kentucky, told CNN Monday that the FDA is attempting to bar "commercial free speech" with the new rules. Only Congress has the authority to regulate tobacco, he said. (714K/32 sec. AIFF or WAV sound)

But Mitch Zeller of the FDA said Monday the agency has a strong case for regulation of tobacco as a drug. (238K/11 sec. AIFF or WAV sound)

The judge said it would take him five to 10 weeks to rule on the lawsuit. "This case is too serious for both sides to give it any less consideration," he told lawyers.

Regulation effort aimed at young smokers

According to President Clinton, the restrictions are needed to cut in half the 1 million teen-agers who start smoking each year.

North Carolina Gov. Jim Hunt, whose administration has filed a brief in support of the tobacco industry, said last week a deal was under discussion that could head off the lawsuit. He hinted it could involve trading strict teen smoking enforcement in exchange for getting the FDA out of the picture.

The regulations would cut deeply into the tobacco industry's $6 billion-a-year advertising and marketing efforts.

Rules limit teen-friendly advertising

The first FDA rule would require photo identification with proof of age for cigarette sales.

Other regulations would ban tobacco billboards within 1,000 feet of any school or playground and require that ads appearing in magazines with more than 15 percent youth readership include only black-and-white text without pictures.

The rules also would ban caps, gym bags or T-shirts that carry cigarette brand logos and prohibit brand name sponsorship of sporting or entertainment events.

Rules banning cigarette sponsorships of sporting events are still more than a year away.

The plaintiffs in the case include R.J. Reynolds, Brown & Williamson Tobacco Corp., Liggett Group Inc., Lorillard Tobacco Co. and Coyne Beahm Inc., a North Carolina advertising firm.

The Associated Press contributed to this report.

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Tobacco under attack

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