Burden of responsibility

The Supreme Court was right: Congress must deal with tobacco

In his dissent from last week's US Supreme Court ruling, which held that the Food and Drug Administration (FDA) does not have regulatory authority over tobacco, Justice Stephen G. Breyer charged that the majority opinion was "counter-intuitive." In that, he was right: it is counterintuitive to say that tobacco is too dangerous to regulate. But that doesn't mean the court's dramatic ruling was wrong.

The court was right to find that Congress -- and only Congress -- has the power and responsibility to regulate the sale of tobacco. The FDA is bound by the Food, Drug and Cosmetic Act of 1938. As Justice Sandra Day O'Connor wrote for the majority opinion: " . . . it is evident that one of the Act's core objectives is to ensure that any product regulated by the FDA is `safe' and `effective' for its intended use." If a product is found to be dangerous -- and there's no doubt that the FDA considers tobacco a dangerous drug -- then the agency is obligated to " `withdraw approval' of the drug."

Since 1965 Congress has passed six laws specific to the regulation of tobacco (requiring health warnings on cigarette packages and restricting the advertising of tobacco, for example); these have created a separate regulatory code for the sale of tobacco in this country. During that same period, Congress has also considered -- and rejected -- several laws that would have granted full regulatory authority over tobacco to the FDA. In fact, until 1995 the FDA itself insisted it had no authority over tobacco.

So what changed? Well, it was only six years ago that seven top executives from the largest US tobacco companies claimed in congressional testimony that nicotine isn't addictive. Not long after that testimony, however, private memos from tobacco companies were made public that showed tobacco companies knew of nicotine's addictive qualities and tobacco's harmful health effects long before the US surgeon general linked smoking with lung cancer in 1964.

In the wake of those revelations, the FDA in 1996 declared nicotine a "drug" and cigarettes and other tobacco products drug-delivery "devices." With that, the agency enacted regulations further restricting tobacco sale to minors, as well as advertising and marketing of tobacco. It also moved to regulate the amount of tar in cigarettes and tried to force tobacco companies to publish a list of their cigarettes' ingredients. Today there is broad consensus among elected officials and the public that tobacco is dangerous and addictive. All nine justices of the Supreme Court -- from William Rehnquist, who typically opposes government solutions for social ills, to the comparatively more activist Ruth Bader Ginsburg -- agree that tobacco constitutes "one of the most troubling public health problems facing our Nation today." In other words, the terms of the debate have changed. But the law hasn't.

The FDA, regardless of how good its intentions may be, cannot regulate tobacco. And it cannot, as Philip Morris spokesperson Steven Parrish said last week, interfere with the right adults have to use a legal product. Anyone who takes up smoking today knows full well what the risks are. And as long as smokers abide by the restrictions that Congress and local authorities have set up to protect the health of nonsmokers, such as not puffing on airplanes, there's no reason why they shouldn't be able to indulge.

Tobacco has had -- and continues to have -- a terrible impact on our society, but the burden of dealing with that problem lies with Congress. If tobacco is to be banned, Congress must do it -- and it must deal with the economic fallout from the collapse of a multibillion-dollar industry. (As O'Connor says, simple "common sense" tells us that Congress would never cede "a policy decision of such economic and political magnitude" to a regulatory agency.) By the same token, if 400,000 preventable deaths continue to pile up each year from smoking -- more than the number of deaths from "[AIDS], car accidents, alcohol, homicides, illegal drugs, suicides, and fires, combined," as O'Connor notes -- then Congress must bear the responsibility for doing nothing when additional regulations might lower the number of people who get addicted to tobacco each year.

Whether our elected representatives are up to tackling tobacco is another matter altogether. Congress is unlikely to ban it, but not because, as former surgeon general C. Everett Koop has pointed out in recent days, we'd have a major health crisis on our hands if we forced 49 million nicotine addicts to go cold turkey. Rather, Congress is reluctant to ban tobacco because of the huge revenues tobacco taxes bring in to the US Treasury every year. As for less dramatic regulatory measures, US senator and former GOP presidential candidate John McCain, who supported a bill two years ago that would have given regulatory authority over tobacco to the FDA, predicts that Congress won't be able to deal with the issue until campaign-finance reform is enacted and the powerful tobacco lobby is weakened. If that's the case, then the burden belongs to us, the voting public.

This court decision, in its narrowest terms, is about administrative authority and where it should lie. More broadly, the decision is about responsibility and where it should rest. Ultimately, that should be with us and our elected representatives.

What do you think? Send an e-mail to letters[a]phx.com.