The Supreme Court Smoke-Out
Friday, March 24, 2000
As the financial fate of the tobacco industry continues to
play itself out in smaller courtrooms across United States,
the U.S. Supreme Court this week effectively charged juries
with a monumental new role as the lone tobacco watchdog.
On Tuesday, the mostly Republican-appointed court ruled
5-4 that the Food and Drug Administration's (FDA's)
congressional charter does not grant it legal jurisdiction
over tobacco products.
As a result, the decision puts the issue back in Congress's
hands. But many observers believe legislators will drop the
ball this session. The Republican-lead Congress has passed
on bills to give regulatory power to the Food and Drug
Administration (FDA) in the past.
If it happens again this session, the current tobacco war will
play out in the battlefield of civil courts across the country.
The high court's decision means states are no longer required
to enforce FDA anti-smoking regulations now rendered null
and void by the high court's ruling. Those regulations, such as
curbing advertising and marketing directed at children, and
restricting access to cigarettes in general, will most likely
suffer from this decision.
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"This is really an extraordinary indictment of what our
democracy has come to," said Professor Richard Daynard
of Boston's Northeastern University Law School. "The basic
institutions of government -- the executive branch and
Congress -- are supposed to protect us. Unfortunately
Congress is owned and operated by the tobacco industry."
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Daynard, who is also president of the Tobacco Control
Resource Center, said the burden of controlling the tobacco
industry is now left to the smaller courts. "We're left with the
safety emergency brakes," said Daynard. "All the emphasis
has moved toward the jury system. And damage cases in
court are heard after the injury has already occurred."
In August 1996, the FDA began to formally assert its authority
to regulate nicotine as a drug and proposed some restrictions
on marketing cigarettes to young people. Two years later, in
August 1998, Congress failed to pass any comprehensive
tobacco legislation.
The FDA's anti-smoking initiative had focused on curbing
youth smoking and would have mandated retailers to check
the age of cigarette buyers who appeared to be under the
age of 27. The initiative also sought to ban cigarette vending
machines except in adults-only places like bars.
According to Bill Godshall, executive director of Smokefree
Pennsylvania, $34 million was appropriated to the FDA last
fiscal year. The FDA used this money to contract with the
states to enforce federal regulations.
"The states were paid by the FDA and were deputized to
enforce regulations against sales to minors," Godshall said.
"A large portion of success has been due to FDA enforcement.
I suspect the rate (of children who take up smoking) will
increase now."
Godshall added that, following the court's ruling this week,
letters went out to each state calling for them to cease and
desist enforcement of the FDA regulations. Godshall decried the decision because, he said, FDA
penalties were much stiffer than those imposed by the
states. In Pennsylvania, for example, the state-imposed
fine for selling cigarettes to minors is $25.
"I have parking tickets that cost more," Godshall said. "And
retail stores have financial incentives to sell cigarettes to
10-year-olds. Most state laws fine the minimum-wage clerks
that sold the cigarettes, but the FDA went after the store
owners."
The Campaign for Tobacco-Free Kids was also upset by
the high court's decision. "I think the ruling was a setback for families and children,"
said Kathryn Kahler Vose, vice president for communications.
"We will urge Congress to pass tobacco-control legislation to
give the FDA authority to regulate tobacco."
Vose also expressed skepticism, echoed by many anti-
tobacco groups, that Congress would pass any effective
tobacco-control legislation this year. "This Congress is not going to do anything that the tobacco
industry doesn't want it to do," Godshall said. "You've got three
smokers on the Supreme Court -- just from the oral arguments
back in December, the writing was on the wall."
But even if tobacco can't be regulated, it can still be dragged
into court and pummeled with punitive damages. "At this point the jury
is the last line of defense for the public
health," said Daynard.
After being hit by a series of lawsuits, the tobacco industry
has agreed to pay a total of $246 billion over the next 20
years to compensate states for treating smoking-related
diseases.
Currently, a class-action lawsuit in Miami, brought against
the five leading cigarette manufacturers, may deliver a record-
breaking damage award amounting to hundreds of billions of
dollars, according to the Orlando Sun-Sentinel. Jurors have
found the cigarette makers guilty of lying to the public about
the inherent risks and addictiveness of smoking.
But would a billion-dollar verdict ease the health burden?
Not according to Daynard. "In public health, there's an old poem about how a fence at
the top of the cliff is much better than an ambulance at the
bottom," Daynard said. "This is the ambulance at the bottom."
Daynard said that hefty punitive damages could have a
positive effect by forcing the tobacco industry to make
changes to avoid future similar verdicts.
So if prevention is better than treatment, are there any
preventive measures left?
One of the few restrictions still standing is the Synar
amendment enacted by Congress in 1992 as part of the
Alcohol, Drug Abuse and Mental Health Administration
Reorganization Act. The amendment requires states to
sharply reduce cigarette sales to minors or risk losing
substance abuse prevention and treatment block grant
funding.
"It's a pale shadow of what FDA regulations would have
done," Daynard said. "It's had some effect but it's a very
indirect way of keeping cigarettes from kids."
For now, it will have to do.
source: By Eileen Smith, drkoop.com, Health News
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