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| UP IN SMOKE | |
 March 21, 2000  | |
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MARGARET WARNER: In 1996, the FDA Asserted it had the authority to regulate tobacco products, and began trying to do just that. Today in a 5-4 ruling, the Supreme Court invalidated the FDA's move. For more, we turn to NewsHour regular Jan Crawford Greenburg, Legal Affairs Correspondent for the "Chicago Tribune." MARGARET WARNER: Welcome back, Jan. First, give us just a little background here. On what grounds four years ago did the FDA assert it had this authority over tobacco after what, nearly 70 years of keeping its hands off and what did it try to do? JAN CRAWFORD GREENBURG: Well, the FDA said this new evidence about the addictive effects of nicotine prompted it to act. The federal Food, Drug and Cosmetics Act gives the FDA the authority to regulate drugs and drug devices that are intended to affect the structure and function of the body. And the FDA said that this new evidence showed that not only was nicotine very addictive but that the industry actually intended it to have those addictive effects, to affect the structure and function of the body. So it therefore should be able to regulate tobacco as a drug and cigarettes as drug-delivery devices. So it asserted its jurisdiction. And then it issued a series of regulations designed to curtail adolescent smoking, everything from prohibiting vending machines in places where children could access them to requiring that advertisements in magazines that kids could see have only black-and-white text and no pictures. The industry immediately sued, joined by retailers and advertisers. They generally lost in the lower court in the first round. A judge said that the FDA did have the authority. The federal appeals court reversed and said no it didn't. It had gone too far. MARGARET WARNER: All right. So, tell us now about court today and when Justice O'Connor read the majority opinion. What were the grounds for striking down the FDA's move? JAN CRAWFORD GREENBURG: Right. The court today affirmed the federal appeals court in quite a dramatic opinion. Justice O'Connor, in summarizing her opinion from the bench, was dramatic as well. She summarized the opinion in very somber tones and emphasized the very serious health problems caused by smoking, that it causes 400,000 smoking-related deaths a year, that it's the leading cause of preventable illness in the United States. But she said that as serious as those problems may be, a federal agency can't step in and exceed its authority. It can't go beyond what Congress has authorized it to do under the law. In this case by asserting its jurisdiction over tobacco, the FDA, she said, had done just that. MARGARET WARNER: Now, what did she point to? What did the majority point to, to buttress the view that Congress did not intend the FDA to get into this, given what has been shown about nicotine in terms of how it affects the body? JAN CRAWFORD GREENBURG: She says that tobacco just doesn't fit under the law. The law that I mentioned earlier is designed to ensure that drugs are safe and effective. Cigarettes can never be safe and effective, so therefore, the agency-- if it has this kind of broad authority-- ultimately will have to ban cigarettes and Congress never intended that result to occur. She also said that there are a number of other ways that we can see Congress never intended for the FDA to have this kind of authority. It never specifically gave the FDA jurisdiction. In fact, the FDA always said that it did not have jurisdiction until 1996, and furthermore, Congress itself had stepped in and passed six smoking-related laws designed to affect marketing and various restrictions on tobacco. MARGARET WARNER: Like the warning on tobacco packs? JAN CRAWFORD GREENBURG: Exactly. Exactly. All of those show that Congress did not intend for the FDA to have this authority. Given that, the court was obliged to defer to Congress. MARGARET WARNER: Now, Justice Breyer, I understand, read part of the dissenting opinion, he and three other justices. What was their argument? JAN CRAWFORD GREENBURG: Again in very somber tones from the bench today stressing the serious impacts of tobacco and smoking, the serious problems that we have with tobacco and smoking. But he said that he completely disagreed with the majority opinion. It was counterintuitive, he said, because the literal meaning of the law is clear that cigarettes should fall within FDA jurisdiction. Of course, tobacco affects the structure and function of the body. And he focused on that. He also looked at the policy behind the law that is designed to protect the public health and allowing the FDA to come in here would do just that. And also let me just say that-- I want to address this. He discounted O'Connor's point that a ban was required. He said the agency was entitled to come in and do whatever remedy it saw fit, that a more dangerous route would be to ban cigarettes because it could lead to black-market products MARGARET WARNER: Would you say that the 5-4 decision, did it split along what we might think of acid logical grounds in this court? JAN CRAWFORD GREENBURG: It did in this case because it wasn't really thought of as an ideological case. The five Justices in the majority are generally thought of to be the more conservative ones. Chief Justice William Rehnquist, Justices Scalia, Kennedy and Thomas joined Justice O'Connor's majority opinion and perhaps they were alarmed at giving these agencies more power that wasn't specifically granted to them and wanted to prevent some kind of overreaching of government power. MARGARET WARNER: Does this have wider application to other regulatory agencies in terms of limiting their ability to expand their authority? JAN CRAWFORD GREENBURG: I think that's going to be an interesting thing to watch and certainly some people will argue that, yes, this makes clear that agencies can't go well beyond what is specifically contained in the law, and that the court is going to start paying much more close attention to that. But I must say, the court made very clear that this case is unique to tobacco. As Justice O'Connor said, this is not an ordinary case. Tobacco has a unique position in American society and culture. So it may be hard to make that argument in other cases. MARGARET WARNER: All right. Well, thanks, Jan, very much. JAN CRAWFORD GREENBURG: Thanks. |
