In snuffing out the government's bid for more regulatory power over cigarettes, the Supreme Court last month came down on the side of common sense and strict construction. Three cheers for judicial restraint!
The sole question before the court was a question of power. Has Congress empowered the Food and Drug Administration to regulate the sale, distribution and marketing of tobacco products? By a vote of 5-4, the high court held that Congress never has delegated such power to the FDA.
The usual suspects lined up on each side: O'Connor, Scalia, Thomas, Kennedy and Chief Justice Rehnquist opted for restraint. Breyer, Stevens, Souter and Ginsburg voted for a "flexible interpretation" of the law. Justice Sandra Day O'Connor, speaking for the majority, had by far the better of the argument. Justice Stephen Breyer had some nifty lines in dissent. He equated the regulation of tobacco with the regulation of sunscreens, tanning lamps and novelty condoms.
There is no question that Congress has the constitutional power to regulate and to ban interstate commerce in dangerous drugs. In 1938, Congress delegated this power to the newly created FDA. Almost immediately the question arose: Is a cigarette a device that delivers a dangerous drug? Maybe so, but Congress was unwilling to say so. In 1929, the Senate had rejected a bill to extend the basic food and drug act of 1906 to tobacco products. Since then, as Justice O'Connor carefully pointed out, Congress has steadfastly refused to grant authority over cigarettes to the FDA.
Tellingly, until 1995 the Food and Drug Administration itself had constantly denied its authority over tobacco products. The reasoning is clear. As Justice O'Connor emphasized, a fundamental precept of the Food, Drug and Cosmetic Act is that any product regulated by the FDA must be safe for its intended use. From a medical point of view, are cigarettes "safe"? Tobacco hasn't been safe since John Smith stunk up Jamestown 400 years ago.
The FDA's authority over risky products is qualified. Not every potentially harmful product is to be banned. Some highly toxic chemicals, for example, are used in the treatment of cancer by chemotherapy, but the government sensibly has concluded that the positive benefits of chemotherapy justify the adverse effects of the poison. No such trade-off applies to nicotine as nicotine is delivered in cigarettes. There is no plausible way for the government to contend that the ephemeral "benefits" of smoking are sufficient to offset the harm In order to assert its jurisdiction, the FDA must contend simultaneously that cigarettes are unequivocally unsafe but also therapeutically useful. Pretzels are less convoluted.
Last month the Supreme Court, which knows a thing or two about the usurpation of power, told the FDA to mind its manners. This is your democracy at work.
Universal Press Syndicate