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Analysis: Battle, But Not the War

In the simplest terms, Tuesday's Supreme Court's tobacco ruling is a victory for the industry and a defeat for the Clinton Administration. By the slimmest of majorities, the Justices have for the moment protected Big Tobacco from additional federal regulation while at the same time throwing the ball back into the hands of the Republican-controlled Congress, which hasn't shown much inclination lately to help the President with much of anything in this election year.

In a 5-4 vote, the Court ruled that the Food and Drug Administration does not have legal authority to regulate tobacco as a drug — by trying to crack down on teenage smoking — despite the Administration's argument that such regulation was necessary and legitimate because tobacco is an "highly addictive" stimulant, sedative or appetite suppressant. The High Court based its decision on the fact that Congress never gave the agency the specific legal power to enact such regulations and that if such power existed the agency illogically would be required, literally, to ban all tobacco as a dangerous drug.

Andrew Cohen
Now, whatever you may think about tobacco and smoking, you should know that the Court's conclusions are not unreasonable and certainly jibe with the Court's current conservative bent. Judicial conservatives, remember, don't like to imply government powers which are not specifically included in legislation or the Constitution. So when the five most conservative Justices looked over Congress' grant of power to the FDA and didn't find any specific power to regulate tobacco, that was that. I'm sure it also didn't help the Administration's cause that for decades the FDA claimed that it did not have the jurisdiction to regulate tobacco before changing its position in 1996. Judges just don't like it when litigants change stories in mid-stream.

But before everyone goes out and buys tobacco stocks and proclaims the end of the government's efforts to take on Big Tobacco, it's worth noting that Tuesday's ruling is just one battle in an ongoing war between the industry and its opponents. And despite the result of this particular battle, I'm not convinced that Tuesday's ruling will significantly change the momentum in this fight; momentum which clearly has worked against the industry over the past few years.

For example, while tobacco companies certainly can and will crow about the support they received Tuesday from the Court, they certainly cannot feel comfortable about the razor-close 5-4 vote which gave them that support. Many legal experts expected that the Court would strike down the FDA's foray into tobacco regulation but most folks thought that the decision wouldn't be such a close call. The fact that four ustices would have permitted the FDA to regulate tobacco certainly is an ominous sign to the industry, especially when it knows that the next President may be asked to appoint several new Justices whom easily could shift the balance of power on the Court. If this issue comes before the Court again in 2004, in other words, it might very well go the other way and it will be interesting to see whether this issue therefore turns into a campaign issue over the next few months.

Tuesday's ruling also shouldn't affect the efforts by state agencies and legislatures to combat teenage smoking. Now that the Court has struck down federal regulations which sought to limit vending-machine cigarette sales to adults-only locations and which required stores to demand photo I.D. from tobacco purchasers under 27, those states which don't have such laws or regulations now may be more inclined to pass them. After all, it's hard for even the most pro-tobacco politician to argue in favor of more cigarette vending machines or fewer I.D. checks on younger smokers.

Nor, finally, should Tuesday's ruling affect the many lawsuits against Big Tobacco which are percolating through the legal system or the effort by state attorneys general to force settlements with the industry. Remember, the Court's majority didn't rule Tuesday that cigarettes are safe or that the government cannot regulate them, it just ruled that Congress hadn't yet given one agency the power to regulate tobacco in one particular way.

By Andrew Cohen
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