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FDA CHIEF HOPES TO AVOID CIGARETTE BAN

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Though the Food and Drug Administration may eventually declare nicotine a drug, Commissioner David Kessler says he hopes to avoid the ban on cigarettes that industry executives have said they fear he is seeking, and that FDA law itself might force him to impose.

Leaders on all sides in the tobacco battle, from Kessler to some industry executives, including congressional proponents and opponents, now privately agree that when rhetoric is set aside there may be common ground for regulation among them. The aggressive investigation of nicotine and addiction undertaken by the FDA in the past few months, as well as disclosures in congressional testimony and internal company documents, could well result in a compromise.The FDA is still gathering the evidence necessary to declare nicotine an addictive drug. If it comes to such a conclusion, its options under the law are limited. Unless Congress declares otherwise, the agency must begin the next step: If nicotine is found to be a drug, FDA laws require that it be found safe - which could not be done - before the agency approves it, FDA officials say.

But before or after the FDA reaches a conclusion, Kessler suggests, Congress, the industry and the agency could come up with alternatives that could be put into law, to avoid the stricter regulation that might be required by the inflexible FDA law.

All sides say that the end point should not be to destroy the tobacco industry or force the country's 45 million smokers to get their cigarettes on the black market. Kessler has said he does not want to ban cigarettes, a sentiment echoed by Rep. Henry A. Waxman, D-Calif., chairman of the House Energy and Commerce subcommittee on health and the environment and an opponent of smoking.