Supreme Court to decide fate of stop smoking campaign

WASHINGTON - The Supreme Court this week will begin deciding on the government's most formidable effort ever to stop smoking, as public pressure against the tobacco industry increases.

In 1996, the Food and Drug Administration broke with tradition and proposed regulating nicotine in cigarettes as a drug. In a plan to cut down on teen smoking, the agency issued rules that would restrict the marketing and sale of tobacco products to youth. It was a decisive moment for the government in the national controversy over a product that medical experts consider the primary cause of preventable disease and death. But after a lawsuit by tobacco companies, a federal appeals court ruled that the FDA lacked the authority to regulate tobacco.

The case has arrived at the Supreme Court, where it will be argued Wednesday. An eventual decision by the justices not only will determine the fate of the program to prevent youth smoking, but, more broadly, will test a comprehensive federal endeavor to restrain a once-powerful industry that is now under constant governmental, legal and societal assault.

In the four years since the FDA proposed its regulations, cigarette companies, once impregnable in court, have lost several high-dollar, personal-injury lawsuits, including the first phase of a Florida class-action dispute that could cost the industry billions of dollars.

In 1994, Mississippi, followed by a majority of the states, sued tobacco companies to recover health expenditures for smoking-related illnesses. The suits were settled last year for $246 billion.

Finally, in September, the Justice Department filed a lawsuit seeking compensation for the medical costs to the government of treating smokers and accusing tobacco companies of conspiring to defraud the public about the health risks of cigarettes.

"There is no question that the world in which the tobacco companies operate is changing," said former FDA Commissioner David Kessler, who had signed the proposed rules to regulate nicotine and has closely followed the case.

"No longer can they claim that tobacco is not an addictive substance. It is children who are becoming addicted, and the industry's major defense that smoking is a matter of adult choice is no longer credible," he said.

But lawyer Bert Rein, representing Brown and Williamson Tobacco Corp., counters that the case before the high court is not about the health consequences of nicotine but about what kinds of regulations the FDA is authorized to set down.

"We don't think this is a public health case," he said. "This is an effort by the FDA to grab power that the Congress never gave it."

11-29-99