Tobacco adversaries square off in appeals court
FDA's intent to regulate cigarettes at issue
August 11, 1997
Web posted at: 10:02 p.m. EDT (0202 GMT)
WARM SPRINGS, Virginia (CNN) -- A historic courthouse here
provided a rustic backdrop Monday for a dramatic legal
confrontation that could undo a major victory won earlier
this year by anti-tobacco forces.
Acting U.S. Solicitor General Walter Dellinger was peppered
with questions by 4th U.S. Circuit Court of Appeals judges
Monday over the government's intent to regulate tobacco
At issue was a split decision rendered April 25 by U.S.
District Judge William Osteen in Greensboro, North Carolina.
Osteen ruled that the U.S. Food and Drug Administration could
regulate cigarettes because their nicotine was addictive, but
refused to give it the right to limit cigarette advertising
and sales practices.
The government and an alliance of tobacco companies and
advertising and convenience-store trade groups both appealed
portions of Osteen's decision, hence their presence in Warm
Although the case has taken a back seat to the proposed
$368.5 billion settlement reached by the attorneys general of
many states and the tobacco industry, the outcome of the case
could be powerful ammunition for either side.
"The tobacco settlement is a long way off," points out Bill
Novelli of the Campaign for Tobacco-Free Kids. "It faces an
uncertain future. That's why this FDA decision is going to be
Judges challenge government attorney
Arguing his last case for the government, Dellinger insisted
that there was an extraordinary scientific consensus emerging
that cigarettes are addictive and that they have been
engineered exactly for that purpose. He also said that
cigarette consumption among children is increasing.
Dellinger asked the court to endorse Osteen's ruling and
restore the provisions controlling advertising and sales.
The FDA's rules -- meant to regulate access to cigarettes and
chewing tobacco by people under 18 -- went into effect in
February. But the rules doing away with cigarette vending
machines and marketing tools cannot be put in place because
of Osteen's ruling.
Two of the three judges challenged Dellinger often, asking in
particular what right the FDA had to regulate nicotine nearly
60 years after the passage of the FDA law regulating food,
medicine and cosmetics.
Dellinger said the 1938 law did not mention tobacco
specifically, and that recent research has shown it to be
The judges also asked why regulating tobacco should not be
undertaken by Congress. Dellinger said the FDA did not intend
to ban smoking, and that passing legislation in Congress was
Richard Cooper, the lead attorney for the tobacco industry,
accused the FDA of exceeding the authority granted it by
Congress. He argued that the proposed FDA regulations would
allow it to ban cigarettes, trampling on the constitutional
rights of individuals, advertisers and merchants.
'A strange and wonderful day'
Cooper said that if the FDA were given the regulatory control
it seeks, it would have no choice but to ban cigarettes
because it could not declare them safe.
"No drug or device has been regulated like this," Cooper
said. "It begs the question: Who gets to decide, Congress or
Dellinger called it "a strange and wonderful day" when the
tobacco industry says the government must ban tobacco.
And Frank Unger of the U.S. Justice Department said after the
hearing that the government didn't plan to ban cigarettes.
"That's been the FDA's position, and we're confident that the
court understood that," he said.
"The FDA got its butt kicked," one stock analyst said after
But others warned against reading too much into the judges'
questions. It was pointed out that Osteen himself had asked
tough questions of the government lawyers before issuing what
was widely regarded as a victory for the government and
It could be a month or more before the appeals court makes
its ruling, and no matter which side wins, the outcome seems
destined for the U.S. Supreme Court.
Correspondent Jeff Levine and Reuters contributed to this report.
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