The Supreme Court Smoke-Out

Friday, March 24, 2000

As the financial fate of the tobacco industry continues to play itself out in smaller courtrooms across United States, the U.S. Supreme Court this week effectively charged juries with a monumental new role as the lone tobacco watchdog.

On Tuesday, the mostly Republican-appointed court ruled 5-4 that the Food and Drug Administration's (FDA's) congressional charter does not grant it legal jurisdiction over tobacco products.

As a result, the decision puts the issue back in Congress's hands. But many observers believe legislators will drop the ball this session. The Republican-lead Congress has passed on bills to give regulatory power to the Food and Drug Administration (FDA) in the past.

If it happens again this session, the current tobacco war will play out in the battlefield of civil courts across the country.

The high court's decision means states are no longer required to enforce FDA anti-smoking regulations now rendered null and void by the high court's ruling. Those regulations, such as curbing advertising and marketing directed at children, and restricting access to cigarettes in general, will most likely suffer from this decision.

"This is really an extraordinary indictment of what our democracy has come to," said Professor Richard Daynard of Boston's Northeastern University Law School. "The basic institutions of government -- the executive branch and Congress -- are supposed to protect us. Unfortunately Congress is owned and operated by the tobacco industry."

Daynard, who is also president of the Tobacco Control Resource Center, said the burden of controlling the tobacco industry is now left to the smaller courts. "We're left with the safety emergency brakes," said Daynard. "All the emphasis has moved toward the jury system. And damage cases in court are heard after the injury has already occurred."

In August 1996, the FDA began to formally assert its authority to regulate nicotine as a drug and proposed some restrictions on marketing cigarettes to young people. Two years later, in August 1998, Congress failed to pass any comprehensive tobacco legislation.

The FDA's anti-smoking initiative had focused on curbing youth smoking and would have mandated retailers to check the age of cigarette buyers who appeared to be under the age of 27. The initiative also sought to ban cigarette vending machines except in adults-only places like bars.

According to Bill Godshall, executive director of Smokefree Pennsylvania, $34 million was appropriated to the FDA last fiscal year. The FDA used this money to contract with the states to enforce federal regulations.

"The states were paid by the FDA and were deputized to enforce regulations against sales to minors," Godshall said. "A large portion of success has been due to FDA enforcement. I suspect the rate (of children who take up smoking) will increase now."

Godshall added that, following the court's ruling this week, letters went out to each state calling for them to cease and desist enforcement of the FDA regulations. Godshall decried the decision because, he said, FDA penalties were much stiffer than those imposed by the states. In Pennsylvania, for example, the state-imposed fine for selling cigarettes to minors is $25.

"I have parking tickets that cost more," Godshall said. "And retail stores have financial incentives to sell cigarettes to 10-year-olds. Most state laws fine the minimum-wage clerks that sold the cigarettes, but the FDA went after the store owners."

The Campaign for Tobacco-Free Kids was also upset by the high court's decision. "I think the ruling was a setback for families and children," said Kathryn Kahler Vose, vice president for communications. "We will urge Congress to pass tobacco-control legislation to give the FDA authority to regulate tobacco."

Vose also expressed skepticism, echoed by many anti- tobacco groups, that Congress would pass any effective tobacco-control legislation this year. "This Congress is not going to do anything that the tobacco industry doesn't want it to do," Godshall said. "You've got three smokers on the Supreme Court -- just from the oral arguments back in December, the writing was on the wall."

But even if tobacco can't be regulated, it can still be dragged into court and pummeled with punitive damages. "At this point the jury is the last line of defense for the public health," said Daynard.

After being hit by a series of lawsuits, the tobacco industry has agreed to pay a total of $246 billion over the next 20 years to compensate states for treating smoking-related diseases.

Currently, a class-action lawsuit in Miami, brought against the five leading cigarette manufacturers, may deliver a record- breaking damage award amounting to hundreds of billions of dollars, according to the Orlando Sun-Sentinel. Jurors have found the cigarette makers guilty of lying to the public about the inherent risks and addictiveness of smoking.

But would a billion-dollar verdict ease the health burden? Not according to Daynard. "In public health, there's an old poem about how a fence at the top of the cliff is much better than an ambulance at the bottom," Daynard said. "This is the ambulance at the bottom."

Daynard said that hefty punitive damages could have a positive effect by forcing the tobacco industry to make changes to avoid future similar verdicts.

So if prevention is better than treatment, are there any preventive measures left?

One of the few restrictions still standing is the Synar amendment enacted by Congress in 1992 as part of the Alcohol, Drug Abuse and Mental Health Administration Reorganization Act. The amendment requires states to sharply reduce cigarette sales to minors or risk losing substance abuse prevention and treatment block grant funding.

"It's a pale shadow of what FDA regulations would have done," Daynard said. "It's had some effect but it's a very indirect way of keeping cigarettes from kids."

For now, it will have to do.

source: By Eileen Smith,, Health News

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