Supreme Court knocks down FDA anti-smoking effort

The Supreme Court Tuesday put an end to one of President Clinton's signature health care initiatives, ruling 5-4 that the Food and Drug Administration lacks authority to regulate tobacco.

The ruling, which was largely expected, invalidates the FDA's historic 1996 anti-smoking initiative, which would regulate the sale and marketing of tobacco products to minors. But even as the battle comes to a close in the courts, it is likely to erupt again almost immediately on Capitol Hill.

Clinton issued a statement from India, where he is traveling, calling for Congress to act. And in interviews Tuesday, top anti-smoking activists said they would quickly ratchet up their push for legislation.

"There is no excuse for Congress not acting," said Campaign for Tobacco-Free Kids President Matthew Myers. "We intend to push for adoption of legislation this year." Another leading activist, Diane Canova, agreed, saying, "We hope it will energize the anti- tobacco community in the fight" for legislation to grant FDA authority. Canova co-chairs ENACT, a coalition of anti-smoking groups led by the American Heart Association, the American Cancer Society and the Campaign for Tobacco-Free Kids. She asserted that although the groups have been focused this year on state legislatures, they have the resources and commitment to launch an effort in Washington.

A senior aide to a leading Senate foe of tobacco indicated while there is no specific legislative strategy in place, anti-tobacco forces will move very quickly now that the high court has spoken. However, given it is an election year and the current session will be short, officials who will be involved indicated that legislation to address the ruling might be relatively narrow. Instead of trying to pass a bill that would accomplish various anti-smoking objectives-such as encoding parts of the 1996 FDA regulation into law or raising tobacco taxes-legislation might only put the FDA in charge of tobacco, a goal for which anti-smoking forces believe there is bipartisan support.

"Right now, it is paramount to get Congress to give FDA the authority to regulate tobacco," Canova said, noting that a new FDA rule could address other issues. She added, "A lot of the things that would be done piecemeal [by Congress] could be dealt with if FDA had authority over tobacco."

The vehicle for such action is being crafted by Sen. Jack Reed, D-R.I., who for the past month has been writing a narrowly tailored bill allowing the FDA to promulgate rules governing the manufacture and distribution of tobacco. Reed may introduce the legislation as early as next week. The bill also would create an advisory panel of experts to work with the FDA in creating the regulation.

Myers suggested, however, that the template for action already exists-legislation written by Sen Bill Frist, R- Tenn., that would make tobacco a separate category regulated by FDA. Clinton Tuesday argued that Congress should adopt the Frist bill. But a senior Senate aide argued that such legislation, which was part of the failed 1998 bill by Commerce Chairman McCain, was less likely than a simpler measure. "We went through a lot of contortions" to craft the Frist FDA provisions, he noted.