High court says Congress alone controls tobacco

In a 5-4 vote, the court struck down the Clinton administration's attempts to regulate tobacco products through a federal agency, the Food and Drug Administration.

The court said Congress must first give the FDA explicit authority to crack down on cigarette sales to children, an action that tobacco critics demanded within hours of the decision.

But prospects for congressional action are uncertain at best in a presidential election year, combatants on both sides said.

"The court's decision underscores the clear need for the Republicans in Congress and George W. Bush to put the interests of people ahead of the big tobacco companies," said Vice President Al Gore, the Democratic nominee-in-waiting.

The Bush campaign said in a statement: "Congress should pass tough laws to keep tobacco out of the hands of kids similar to strict anti-teen smoking laws . . . [the governor] advocated and signed in Texas."

Tobacco industry officials said they welcomed discussion of reasonable federal regulations. But they added that final decisions would probably await a new president and Congress.

"No one really believes anything can be done this year - there won't be time," said Peggy Roberts, director of corporate communications for Philip Morris.

The tobacco companies still face a variety of individual lawsuits, not to mention a federal suit filed last year by the Justice Department. But tobacco stocks closed a bit higher on Wall Street. Philip Morris rose 38 cents to $20.31, Loews Corp. rose $2 to $47.13, and R.J. Reynolds Tobacco Co. finished up 56 cents at $17.06.

Industry critics said the Supreme Court ignored a mountain of evidence that tobacco companies spent decades covering up the dangers of their products. The court's refusal to grant FDA jurisdiction, they said, exposes millions of children to the addictiveness of cigarettes and smokeless tobacco.

"Now Congress has the right, the ability, and the responsibility to do something about this public health crisis," said Sen. Frank Lautenberg, D-N.J.

Tobacco officials, saying they are already working to keep kids from smoking, saluted the Supreme Court for rebuking what some called a power grab by the Clinton administration.

"The highest court in the land has confirmed that a federal agency cannot on its own go beyond its limits of authority set by Congress," said a statement from Brown & Williamson Tobacco.

Clinton and Congress

The court's decision wipes out President Clinton's most ambitious effort to curb teen smoking. Traveling in India, Mr. Clinton also called on Congress to act.

He specifically mentioned a past Senate bill sponsored by two Republicans, Bill Frist of Tennessee and former presidential candidate John McCain of Arizona.

"Nearly 4 million children under the age of 18 smoke cigarettes - 3,000 more start each day, and 1,000 will have their lives cut short as a result," Mr. Clinton said in a prepared statement.

Mr. McCain, however, called congressional action a long shot, in part because of massive campaign contributions from tobacco companies.

"I have to tell you, I'm not optimistic that we will be able to get that done until we have campaign finance reform," Mr. McCain said.

A spokeswoman for Mr. Frist said the senator wanted to review the Supreme Court decision before deciding how to proceed.

The FDA's role

With the strong backing of the Clinton administration, the FDA asserted authority over tobacco in 1996, reversing a decades-long policy.

It instituted a federal ban on tobacco sales to children under 18, echoing laws in all 50 states. The FDA also called for tighter restrictions on advertising that might appeal to young people.

The agency further required cigarette sellers to demand photo identification from young buyers. It also restricted cigarette vending machines to bars and other places populated only by adults.

The tobacco industry sued, asserting that the FDA exceeded its authority. The industry won that argument before the 4th U.S. Circuit Court of Appeals in Richmond, Va., and again Tuesday in the Supreme Court.

The majority view

Writing for the majority, Justice Sandra Day O'Connor said the court sympathized with the goals of the FDA. But, she said, government agencies need explicit permission from Congress before they can regulate such a large segment of the economy.

The majority said Congress specifically excluded tobacco when it passed the Food, Drug and Cosmetic Act of 1938. It also noted that over the years, Congress has passed tobacco-specific legislation rather than defer to executive branch agencies such as the FDA.

The opinion further noted that the FDA is required to ban items it deems to be dangerous or unsafe. Thus, the FDA would be required to prohibit cigarettes if it had regulatory authority over tobacco.

"Congress, for better or for worse, has created a distinct regulatory scheme for tobacco products . . . [and] squarely rejected proposals to give the FDA jurisdiction," Justice O'Connor wrote.

Joining Justice O'Connor in the majority were Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

The four dissenting justices noted that in past cases the court has generally deferred to the judgments of federal agencies.

The dissenters' side

Writing for the minority, Justice Stephen G. Breyer pointed out that the food and drug act gave the FDA power over items "intended to affect the structure or any function of the body." He said cigarettes qualify because of the way nicotine affects the central nervous system.

"The upshot is that the court today holds that a regulatory statute aimed at unsafe drugs and devices does not authorize regulation of a drug (nicotine) and a device (a cigarette) that the court itself finds unsafe," Justice Breyer wrote.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg joined the dissent.

A variety of anti-smoking groups criticized the court's decision and urged Congress to respond. "It is always more difficult in an election year. But we don't have to start from ground zero," said Matt Myers, president of the Campaign for Tobacco Free Kids.

Tommy Payne, executive vice president for external relations at R.J. Reynolds, said the industry welcomes a "rational discussion" about a "reasonable regulatory structure."

"We're supportive of that and fully intend to be active and constructive participants," Mr. Payne said.

Staff writers Susan Feeney, Richard Whittle, Wayne Slater and Mark Curriden contributed to this report.