A federal judge's ruling Friday that the Food and Drug Administration has the power to regulate tobacco as a drug but no right to restrict cigarette advertising left both camps claiming victory in the ongoing smoking wars.
But the decision by U.S. District Judge William Osteen of Greensboro, N.C., in the heart of tobacco country also handed both sides a major defeat that will intensify the lengthy legal and political battles ahead.President Clinton, who ordered the FDA to come up with the regulations and announced them in December, declared Friday "a historic and landmark day for the nation's health and children."
But even as he hailed Osteen's decision, Clinton acknowledged that he has directed the Justice Department to appeal that part of the ruling that bars the federal government from banishing pictorial representations such as Joe Camel from tobacco ads and banning such marketing gimmicks as T-shirts and caps. The administration says such items are partly responsible for enticing 3,000 youngsters a day to start smoking.
Tobacco industry lawyers also were laying plans to fight the part of Osteen's ruling they don't like: his assertion that "neither the text nor the legislative history of the Food, Drug and Cosmetic Act evidences clear congressional intent to withhold from FDA authority to regulate tobacco products." The 1938 statute created the FDA.
The industry points to a lengthy list of other legislation as proof that Congress has repeatedly denied the FDA such power since a 1970 statute was enacted requiring tobacco warning labels and ordering cigarette ads off the nation's airwaves.
Perhaps because of that congressional gridlock as well as the uncertainty surrounding the court case, the big five tobacco firms issued a joint statement Friday calling for a legislative solution because "the public policy issues at stake in this case can be addressed most effectively through the legislative process."
Legal analysts agree the outcome of any court appeal is murky at best. While the 4th U.S. Circuit Court of Appeals that will hear the case is also sited in tobacco country, the Richmond-based appeals court recently handed down a decision hostile to the industry.
In that case, the court upheld Baltimore's ban on tobacco billboards and other outdoor signs in areas where minors are likely to see them on grounds "children deserve special solicitude because they lack the ability to assess and analyze fully the information presented through commercial media."
The Baltimore billboard decision will be the precedent through which the appeals court views the FDA appeals even though the Baltimore case is currently pending at the Supreme Court.
There, too, the outcome is less than clear in the wake of a high court holding last year that truthful advertising for liquor and other lawful products deserves First Amendment protection even for a product that's considered a vice.
Faced with a shifting legal landscape, Mississippi Attorney General Mike Moore said Friday that Osteen's decision in the FDA case "strengthens our position at the bargaining table," where tobacco executives are negotiating a possible settlement with attorneys general from half the states seeking compensation for Medicaid spending on smoking-related illnesses, as well as private lawyers pressing tobacco claims.
Moore also said Osteen's ruling likely will change the states' strategy in the talks, prompting them to focus not only on monetary compensation but on advertising and marketing concessions designed to protect children and public health.
Absent a settlement, Mississippi is scheduled to go to trial July 7 on its claim the tobacco companies should be held liable for Medicaid spending, followed shortly by Florida and Texas.
The civil lawsuits and political fights are being played out against a backdrop of reports of a federal criminal investigation into whether tobacco industry executives lied when they told Congress and the public that smoking was safe in the wake of then-Surgeon General Luther Terry's 1964 report concluding that tobacco is hazardous to health.
After Terry's findings, it took six years for Congress to agree to put warning labels on cigarette packs and order tobacco ads off TV and radio and two decades for Congress to ban smoking on commercial airline flights, a testament to the power of tobacco-state lawmakers and their allies.
Sen. Jesse Helms, R-N.C., known as "Senator No" for his parliamentary skill at blocking anti-tobacco legislation, had no immediate comment Friday on Osteen's ruling or the possible legislative fallout.
Anti-smoking lawmakers who have skirmished with Helms and tobacco before were taking a wait-and-see attitude, too. Knowing they will have to win congressional approval of any tobacco settlement with the states as well as any legislation to strengthen the FDA's hand, Democratic Sens. Frank Lautenberg of New Jersey and Dick Durbin of Illinois told reporters they will wait on the outcome of the cases now in court before proposing any congressional solution.
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ADDITIONAL INFORMATION
Ruling's effects
The federal judge's ruling on government regulation of tobacco in order to protect minors has these effects:
- The nationwide minimum age of 18 to buy cigarettes and chewing tobacco remains in force. That requires proof of age for anybody under age 27. The rule went into effect in February.
- All controls due to go into effect on Aug. 28 of this year are blocked, at least temporarily. That includes all controls on billboard advertising and magazine ads, and bans on free samples and on sale of hats, T-shirts, gym bags and other merchandise under tobacco brand names.
- Controls on vending machines and self-service store displays, also due to take effect in August, were upheld by the judge, but they, too, appeared to be blocked for the time being.
- Other rules due to take effect in August 1998, banning use of tobacco brand names in sponsoring sports, musical and cultural events were struck down, but the judge did not issue a specific order to block them at this stage.
Distributed by the Los Angeles Times-Washington Post News Service