Ruling Puts Tobacco Under FDA Thumb

The tobacco landscape has changed.

A federal judge has pronounced tobacco an addictive drug laced with nicotine. And cigarettes are nicotine-delivery devices that can be regulated by the Food and Drug Administration (FDA), ruled Judge William Osteen Jr. on Friday. He also decided, however, that the FDA does not have authority to control the advertising of tobacco.

On balance, the ruling in Greensboro, N.C., the heart of tobacco country, is a major setback for the industry. Although the FDA has no immediate plans to clamp down, it now has the authority.

"With federal regulation of the manufacturing of nicotine levels, the government can examine claims of low tar and look into the ingredients," says Bill Novelli, president of the Campaign for Tobacco-Free Kids in Washington.

"Even more importantly ... Americans will understand we are talking about an addictive drug." The FDA, for example, may require warning labels on cigarette packs saying the product is addictive.

Allowing the FDA to regulate tobacco also eliminates one of the bargaining issues in the ongoing discussions between 23 state attorneys general and the industry.

In those talks, the industry has been willing to have some form of regulation in return for immunity from future suits. "You can speculate that this weakens the tobacco industry's hand," says Mr. Novelli.

But on the advertising issue, the court's ruling is a setback to the FDA. "Court Knocks Down FDA Advertising Regulations," headlined a joint statement from all the tobacco manufacturers. Restricting tobacco marketing had been a major part of the government's efforts to change cigarettes' image.

The immediate impact of the new decision is to validate the FDA's attempt to make it harder for underage smokers to buy cigarettes. In February, the FDA began requiring retailers to ask for photo ID for cigarette-buyers who appear to be under the age of 27.

The industry supports government efforts to restrict sales to minors. In a statement, Brown & Williamson Tobacco Corp., based in Louisville, Ky., said, "We've supported the voluntary WE CARD program that offers training and signage to thousands of retailers across the country to reduce illegal tobacco sales to minors."

Despite these efforts, smoking rates among teens are rising. Some government studies have found that teens buy cigarettes from vending machines that are often in unsupervised areas.

In August, the FDA planned to ban cigarette vending machines as well as the sale of single cigarettes and the distribution of free samples. However, Osteen stayed this part of the FDA's new regulations until after the appeal process.

Both sides intend to appeal the parts of Osteen's decision they disagree with to the US Fourth Circuit Court in Richmond, Virginia.

The Fourth Circuit hasn't been afraid of limiting tobacco ads. It recently agreed that Baltimore could ban tobacco ads on billboards.

Osteen didn't make the ad issue a matter of free speech. Instead, he said that, as written, the FDA's regulations don't fit the agency's mandate. Other agencies, such as the Federal Trade Commission, regulate ads.