An FDA without Dr. Kessler, who stepped down last week, could revive industry efforts to win more flexible rules for prescription-drug advertising directed to consumers, a category recording strong growth.
But for tobacco, "In the short term, the new commissioner of FDA won't have much to say," predicted Dan Jaffe, exec VP of the Association of National Advertisers. First-ever FDA rules for regulating tobacco advertising and promotion have been finalized and now are being challenged in court by the tobacco and ad industries.
With the tobacco rules in court, said Oppenheimer & Co. tobacco analyst Roy Burry, "I doubt there will be any compromise unless one side decides to lose. The bottom line is [that Dr. Kessler and the FDA] are not the motivating force [on tobacco regulation]. It's coming from the White House."
President Clinton heaped praise on the FDA tobacco rules during his re-election campaign, but had previously said he would be willing to hold discussions with tobacco companies.
Philip Morris Cos. last year offered to accept new restrictions on marketing and promotion, but only if the White House gave up its plan to impose FDA control over the industry. The White House dismissed that proposal.
The country's No. 1 and 2 tobacco marketers, Philip Morris USA and R.J. Reynolds Tobacco Co., respectively, declined comment on Dr. Kessler's departure, as did the Tobacco Institute.
For ad industry association officials, the FDA chief's departure seemed welcome news.
"Dr. Kessler had the most expansive view of the FDA's authority of any other commissioner in history," Mr. Jaffe said. "He had a very broad view of what the FDA could do, including ignoring the First Amendment."
Hal Shoup, exec VP at the American Association of Advertising Agencies, agreed: "His regulation of truthful speech on legal products was not a good position. We hope his successor will take a fresh look at what advertising does and doesn't do."
The Coalition for Healthcare Communications, of which the Four A's is a member, has been lobbying the FDA since 1991 for updated guidelines on direct-to-consumer prescription-drug ads.
`BREATH OF FRESH AIR'
"Dr. Kessler has always been anti-commercial medicine and he has gone the full nine yards looking for nefarious commercial intent," said a spokesman for the coalition. "We've been forced to continue to live with professional regulations [meant for ads directed to physicians] shoe-horned onto consumer efforts. His departure is a breath of fresh air to us."
Mr. Jaffe declined to comment on possible successors. But he said the process could take months, and that whoever is selected "must like being in the kitchen and like the heat."
To start with, the nominee must be confirmed by the Republican-controlled Senate, where Dr. Kessler's policies have been under attack by conservative think tanks and their allies in Congress.
Dr. Kessler faced and created plenty of heat.
In forcing tighter rules on food advertisers, he jolted the industry in 1991 by seizing 2,400 cases of Procter & Gamble Co.'s Citrus Hill Fresh Choice orange juice, citing the fact that the product was not "fresh" but made from concentrate. After negotiations with the FDA, P&G dropped "fresh" from the product name and switched to simply Citrus Hill.
The same crackdown also forced Chesebrough-Pond's to change its Ragu Fresh brand name on one of its spaghetti sauces to Ragu Fino Italian.
More significantly, Dr. Kessler helped implement sweeping, sometimes controversial changes to nutrition labeling of all foods.
The ad industry believes Dr. Kessler's successor will be less inclined toward aggressive regulation and more pro-active toward business interests.
Mr. Jaffe predicted Congress, in approving a new candidate for the top FDA post, will undoubtedly find someone "more balanced" for the job.