April 26, 1997 in Nation/World

Judge: Fda Can Regulate Cigarettes Nicotine Ruled A Drug; Ad Restrictions Struck Down

Marlene Cimons Los Angeles Times

In a staggering defeat for the already beleaguered tobacco industry, a federal judge in North Carolina ruled Friday that the Food and Drug Administration has the right to regulate cigarettes and other tobacco products.

Judge William L. Osteen Sr. agreed with the FDA that nicotine is a drug and that cigarettes are drug delivery systems, putting these products squarely under agency jurisdiction.

His ruling, if upheld on appeal, will allow the FDA to enforce regulations designed to bar the sale of cigarettes to persons under 18 years of age.

More generally, it will give the FDA the power to control or eliminate nicotine, the component of tobacco that the agency has declared to be addictive. Theoretically, the FDA could even ban cigarettes, although FDA officials have said repeatedly that they do not intend to do so.

At the same time, Osteen struck down FDA regulations that severely restrict cigarette advertising and promotion to young people. Although the tobacco industry took comfort from this aspect of the decision, analysts said the key part of the ruling went the FDA’s way.

It was a historic decision that effectively endorsed the federal government’s decision to end its traditional hands-off policy toward the powerful tobacco industry.

And it was all the more astonishing because it was issued by a federal district court in tobacco-producing Greensboro, N.C., by a judge who himself once worked as a paid lobbyist for tobacco growers. Industry leaders filed their legal challenge to the FDA there because they believed it was in tobacco country that they had their best chance of winning.

Osteen’s decision is certain to be only the beginning of a lengthy and acrimonious legal battle. Both sides said they will appeal the portion of the decision they lost, and the case is expected ultimately to reach the U.S. Supreme Court.

In his 65-page ruling, Osteen wrote: “The court finds that tobacco products fit within (the FDA’s) definitions of ‘drug’ and ‘device.”’

He supported the FDA’s contention that nicotine is “intended to affect the structure or function of the body,” part of the legal language that defines the nature of drugs under the agency’s authority. The FDA argued that nicotine, because of its addictive properties, fits this definition even though it does not have known therapeutic benefits as a drug.

Osteen rejected the industry’s argument that the FDA’s jurisdiction is confined to drugs and medical devices that provide medicinal benefits.

One of the key issues at stake in the legal battle has been the power of the federal government to enact and enforce regulations designed to block teenagers’ access to cigarettes, with the goal of dramatically reducing the number of young people who take up smoking.

President Clinton last summer announced new rules that aimed to do just that. The first phase, forbidding sales to persons under 18 and requiring proof of age for anyone who looks younger than 27, went into effect in February.

Scheduled to take effect Aug. 28 are regulations banning cigarette vending machines in most locations, prohibiting self-service cigarette displays and free samples and requiring that cigarette packages bear the statement: “Nicotine-Delivery Device for Persons 18 or Older.”

Although Osteen upheld these rules, he issued an order postponing their effectiveness until the appeals process is complete.

Clinton called the ruling “a great victory for us … especially coming, as it does, out of North Carolina.”

Although industry officials vowed to keep fighting, their response was unusually subdued. In a joint statement, the major cigarette companies said they would contest the facts of the case presented by the government that served as the basis for Osteen’s ruling.

“The court noted that the industry can contest those factual assertions as the case proceeds - and we will,” the companies’ statement said.

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