Congress Mulls FDA Authority over Tobacco

Published August 1, 2003

As President George W. Bush considered joining an international tobacco control treaty, Congress conducted hearings into the desirability of giving the Food and Drug Administration authority to regulate tobacco.

In 1993, under the Clinton administration, the FDA on its own initiative claimed authority to strictly regulate tobacco. The U.S. Supreme Court in 2000 rejected the FDA’s assertion.

Since that decision, however, many cigarette makers have pushed for a Congressionally authorized FDA authority that would provide health and safety direction while granting the firms some security from trial lawyers and runaway jury verdicts.

Philip Morris, which produces roughly half of the cigarettes sold in America, supports Congressionally authorized FDA authority. “We’re very hopeful that as these bills move through Congress and as there are additional hearings, it will help generate support and that the White House will lend their support at whatever time they feel is most appropriate,” said Mark Berlin, legislative counsel for Philip Morris parent company Altria Group, Inc.

“We think there’s growing support in Congress,” added John Nelson, Philip Morris’s president of operations and technology. Nelson predicted a “better than 50-50 chance” that Congress would grant tobacco authority to the FDA this year.

Mixed Reaction

Republicans and Democrats are equally receptive to FDA tobacco authority, but individual congressmen differ on the scope of such a power grant. Senators Edward Kennedy (D-Massachusetts) and Mike DeWine (R-Ohio) have led the push for a broad grant of power allowing very strict FDA regulation, while Representative Thomas Davis (R-Virginia) has led the push for more limited regulation.

Ironically, the anti-smoking groups that supported the FDA’s 1993 power grab are opposing any congressional grant of FDA authority. “The tobacco industry has poured money into Congress, and it is clearly hoping that these hearings will serve as an impetus for political payback in the form of weak FDA regulation of tobacco products,” said Matthew Myers, president of Campaign for Tobacco Free Kids. “They want a bill that will do more to promote the use of tobacco than to protect the public.”

Henry I. Miller, fellow at the Hoover Institution and a former FDA official, told Environment & Climate News FDA regulation offers only “second-best and worse alternatives.

“A product that is unsafe and ineffective for any therapeutic use, tobacco doesn’t fall within any traditional category of FDA-regulated products,” Miller pointed out. “It’s difficult to imagine what newly defined FDA jurisdiction would add to public health, and if it offered tobacco companies a refuge from legal liability, it would be detrimental.

“On the other hand, if the agency’s authority were strictly limited to fostering research into safer cigarettes, with due care for their palatability, that might be preferable to the current situation.

“Then again,” he added, “a better alternative to the FDA might be the FTC, which would simply oversee claims, not actual products.”

“While it’s true tobacco-related illnesses affect many people,” noted Robert Levy, senior fellow in constitutional studies at the Cato Institute, “that does not make cigarettes a public health problem. Smoking is not infectious. We have not been attacked by a foreign power wielding nicotine.

“Smoking is a private decision that adults can make without guidance from the nanny state,” Levy told Environment & Climate News. “By all means, disclose the risks and enforce the laws against sales to kids. Then each adult can choose whether to be smoke-free or free to smoke.”

James M. Taylor is managing editor of Environment & Climate News. His email address is [email protected].