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On tobacco's complexities, legal and personal

Charles Bierbauer

By Charles Bierbauer
CNN Senior Washington Correspondent

December 2, 1999
Web posted at: 2:02 p.m. EST (1902 GMT)

This news analysis was written for CNN Interactive.

In this story:

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Legal complexities

Personal for nearly everyone

WASHINGTON (CNN) -- "If you've got 'em, smoke 'em," our platoon sergeant would say.

It was the early '60s -- different times -- before the U.S. surgeon general's devastating 1964 report on the effects of smoking and before health warning labels were required on cigarette packages.

I actually bought my last pack of cigarettes the day I was inducted into the Army at Fort Dix, New Jersey. At 18, I'd been only an occasional smoker, and that platoon sergeant wasn't inclined to give us time to run to the PX to pick up a pack. But he wouldn't really have had to. The tobacco companies helped bridge the gap with free cigarettes. The largesse may not have been entirely motivated by patriotism.

"If you can get a young person to [age] 18, 19 or 20 and they have not begun to smoke, it is unlikely that they will ever begin to smoke," Dr. David Kessler, former Food and Drug Administration (FDA) commissioner, said last week. "Nicotine addiction begins as a pediatric disease."

Cigarette commercials
Cigarette companies have long used glamour, celebrities and excitement to promote their product  

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Teen-agers are the focus of multiple efforts to curtail tobacco use.

One part of these efforts is an attack on tobacco's public image. That's why in the recent multi-billion dollar settlement with cigarette manufacturers, states' attorneys general insisted on sending Joe Camel to a desert oasis and the Marlboro Man to his last roundup.

Those banishments have apparently not had much impact yet. The Centers for Disease Control and Prevention report that while adult smoking rates are down, teen smoking is on the rise.

Teen-agers would also be the primary target of the FDA's plan, currently in legal limbo, to curtail smoking in the United States.

The FDA made its highest appeal Wednesday, urging the U.S. Supreme Court to grant it authority to regulate tobacco as an addictive substance. The 4th U.S. Circuit Court of Appeals last year ruled against the FDA.

For decades, the FDA itself had said tobacco was beyond its regulatory reach. The government agency had a chance to exert control as early as 1938 when the Food, Drug and Cosmetic Act was passed to provide new regulatory authority.

It's clear from industry documents that the tobacco companies knew about nicotine's effects for decades. But decades ago, who among the public knew or suspected?

Americans went off to World War II with Lucky Strikes in their uniform pockets.

Later images: a pack rolled in the T-shirt sleeve of movie idols such as James Dean; on TV in the 1950s and '60s, Charlton Heston hawking Camels, Dick Van Dyke and Mary Tyler Moore puffing Kents, and Lucy and Desi on the Philip Morris bandwagon.

Today, kids watching vintage "I Love Lucy" shows on cable notice it, too: Everyone's smoking.

Legal complexities

As recently as 1994, tobacco company executives went before a Senate committee investigating the tobacco industry, stood with right arms raised and swore nicotine was not addictive.

"Nobody believed them," Supreme Court Justice Antonin Scalia, a smoker, quipped this week.

Philip Morris web site
The Philip Morris Web site highlights the dangers of tobacco use  

Philip Morris' Web site now acknowledges "cigarette smoking is addictive" and there is "no 'safe' cigarette." Industry documents revealed in recent lawsuits show cigarette manufacturers have long known that and have manipulated the nicotine content of cigarettes.

The FDA came to change its view that tobacco was out of its reach, and in 1996 claimed authority to regulate tobacco.

Solicitor General Seth Waxman, the government's chief lawyer, told the justices on behalf of the FDA this week that "nicotine acts ... like No-Doz, a stimulant ... Valium, a sedative ... Dexatrim, an appetite suppressant ... and methadone -- to sustain addiction." All are drugs the FDA regulates.

But tobacco industry lawyer Richard Cooper argued before the court that the FDA's claim is "lawless, however honorable its intentions."

That's because the tobacco companies never made medicinal claims for their products. Smoking pleasure, with some admitted risk, is all the companies touted.

In fact, the tobacco industry says its products are so devoid of medical benefit that the FDA could not regulate them; it would have to ban them.

Tobacco executives
Tobacco executives told Congress in 1994 that their product was not addictive  

Justice Sandra Day O'Connor seemed to agree that if the FDA cannot consider tobacco a "safe" drug, "it just doesn't fit" to try to regulate it.

Personal for nearly everyone

The justices must decide what Congress intended as it wrote and amended the Food, Drug and Cosmetic Act.

Did Congress mean to let a government agency such as the FDA decide for itself what the terms "drugs" and "devices" would include? The act did not specify tobacco, but it did say that drugs were "articles intended to affect the structure or any function of the body."

Whatever the justices' verdict in the coming months, the losing side, be it tobacco or the FDA, is expected to go back to Congress and ask it to change the law or write a new one.

It's a technical case -- and an emotional subject.

Hardly anyone approaches the issue with detachment. There are some 47 million smokers in the United States. If you're not one, you probably know one. Or knew one.

Long before I smoked that first or last cigarette, before the surgeon general's report, my father died of cancer. He was a heavy smoker.

He blamed himself. I don't think it occurred to any of us then that the government or the courts could have made any difference. Those were different times.

CNN Interactive: Analysis
  • y: archives -- United States

U.S. Food and Drug Administration
U.S. House of Representatives: Commitee on Commerce Tobacco Documents
The White House
National Center for Tobacco-Free Kids
Brown & Williamson
Lorillard Document Site
Philip Morris Co.
R.J. Reynolds Tobacco Co.

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