One of three federal judges weighing whether the U.S. Food & Drug Administration can regulate tobacco advertising died Feb. 22, raising the possibility that the potentially critical court decision could be delayed or that the case might have to be reargued. Judge Donald S. Russell, 91, who died of non-tobacco-related lung cancer, and two other members of the U.S. Circuit Court of Appeals for the Fourth District in Richmond, Va., had been reviewing a lower court decision that said FDA had no authority to control tobacco ads but did have authority to regulate nicotine. In oral arguments last summer, the Clinton administration had asked the appeals court to overturn the initial decision and rule that FDA can regulate tobacco ads. Although Judge Russell's position on the case was unknown, he had peppered government attorneys with sharp questioning about the legality of the FDA's planned tobacco ad curbs at the hearing. The two remaining judges must see if they can reach agreement or ask that the case be reargued.
Copyright February 1998, Crain Communications Inc.