Supreme Court rejects FDA tobacco regulation

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The U.S. Supreme Court March 21 rejected the Food & Drug Administration's attempt to regulate tobacco, four years after the FDA under former Commissioner David Kessler claimed the authority and sought to impose sweeping ad and marketing curbs. The decision is a blow, at least in the short term, to those who want to further restrict tobacco advertising.

The court majority's 5-4 decision, written by Justice Sandra Day O'Connor, noted the FDA's longtime stance that it couldn't regulate tobacco and suggested that because tobacco kills, taking jurisdiction would require the FDA to ban tobacco, something that Congress clearly hadn't intended. Justice Stephen Breyer, writing for minority, questioned whether the FDA would have to ban tobacco to regulate it.

The decision finally kills two major possible ad curbs that had been hanging over tobacco for four years as the case wound its way through various courts. The proposed restrictions already had been challenged successfully by ad groups in lower courts, but could have been reinstated if the high court decision had gone the other way. The FDA had proposed that only black and white ads without imagery be permitted in magazines with more than 15% readership by minors, and it would have limited outside tobacco signs further than a pact tobacco companies signed with state attorneys general.

While the decision appears to end the debate over ad regulations, there's a possibility it may instead re-energize tobacco as a congressional issue this year. Today several senators who had been waiting for the decision called for Congress now to take action on tobacco by either giving the FDA authority to regulate tobacco or by approving new curbs on tobacco marketing.

Copyright March 2000, Crain Communications Inc.

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