Tobacco industry, FDA set to square off in court

GREENSBORO, North Carolina (CNN) -- The tobacco industry heads to court Monday to challenge federal regulations aimed at curbing teen-age smoking. And from Washington to Tobacco Road in the South, the smoke in the tobacco war is thickening.

Tobacco companies have filed suit against Food and Drug Administration regulations that are designed to restrict the sale, advertising and accessibility of tobacco products to minors. The regulations also bring nicotine under control of the FDA.

But lawyers in the courtroom showdown Monday will not debate those issues. Instead, they simply will argue whether the FDA overstepped its bounds -- and the First Amendment -- by issuing the regulations.

Judge William Osteen could invalidate the FDA's advertising curbs, set to begin next year, and a regulation effective February 28 that would require stores nationwide to I.D. buyers of tobacco products and fine those that fail to do so.

Neither side seems willing to budge.

Mitch Zeller of the FDA said the agency would stand by its policies, especially in light of recently discovered documents that show the tobacco industry knew nicotine was addictive in 1963.

"That and all the other information and evidence that's come out puts us in the position of being able to say, 'We think we will prevail in court,'" Zeller said.

The industry has denied it controls nicotine levels or that its advertising targets teens.

"This a legal argument, not a factual argument," R.J. Reynolds attorney Charles Blixt told The Associated Press. "These FDA regulations ... would go to the heart of our business."

The Freedom to Advertise Coalition, made up of advertising groups suing to block the FDA regulations, says the bans would cut at least $600 million from the tobacco industry's $6 billion annual marketing tab.

Sale of cigarettes to minors already is illegal, yet 3,000 teens a day pick up the habit and 90 percent of all smokers start before age 18, according to the American Medical Association.

Up in smoke

More litigation looms for tobacco companies. In June, the industry faces the first of 19 state lawsuits seeking billions of dollars to recover Medicaid money spent treating tobacco-related illnesses. Another 200 suits filed by sick smokers are pending, as well as class-action suits filed in 13 states.

How it will all be resolved is a lingering question.

Some industry analysts say Congress might have to get involved to broker a deal that would satisfy all sides. Others say tobacco companies may have to strike a deal, as the Liggett Group did last March.

In that case, the nation's fifth-largest cigarette maker broke ranks with the rest of the tobacco industry, agreeing to repay more than $10 million in Medicaid bills for treatment of smoking-related illnesses.

Legal analyst Mary Aronson explained why tobacco companies might be willing to settle out of court: "If they lose the first big Medicaid case, the other side gets additional strength out of that kind of loss. And they're going to be able to demand more of the industry."

Others say the American people could be the biggest loser in the tobacco wars.

"Unless there's some way to really enforce these new rules, the American public will not have won," said Kathleen Scheg of Action on Smoking and Health.

Correspondent Kathleen Koch contributed to this report.

Special section

• Tobacco under attack

Related stories:

• Florida allows racketeering charge for tobacco companies - December 13, 1996
• Feds defend right to regulate tobacco - December 2, 1996

Related sites:

• FDA
• Action on Smoking and Health

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