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High Court Tackles Tobacco

The Supreme Court agreed Monday to decide if the Food and Drug Administration can crack down on cigarette sales to minors.

The court will hear a Clinton administration appeal in which government lawyers say the FDA's 1996 decision to start regulating tobacco as a drug was justified by new evidence that the tobacco industry intended its products to feed consumers' nicotine habits.

"Unless this court grants review, an unparalleled opportunity to curb tobacco use by children ... will be lost," the government's appeal said.

A federal appeals court ruled that Congress, not the FDA, has the authority to make the "major policy decision" of how to regulate cigarettes and chewing tobacco. The effect of the lower court's ruling was to leave no FDA role in regulating tobacco products.

In a written statement, President Clinton said is he "very pleased" that the court has agreed to take up FDA regulation of tobacco products, reports CBS News White House Correspondent Mark Knoller.

The president said he remains "firmly committed to the FDA rule," which he says will help keep young people from smoking "by eliminating advertising aimed at children and curbing minors' access to tobacco products."

The FDA's rules are part of growing efforts to curb the tobacco industry. Although Congress failed to pass a nationwide settlement last year, all 50 states have reached settlements in which tobacco companies will pay them $246 billion for the cost of treating smoking-related illnesses.

The federal government also plans to sue the industry to recover federal health-insurance costs for treating such illnesses. And the industry faces individual and class-action lawsuits by smokers and their families.

For decades, the FDA said it lacked authority to regulate tobacco so long as cigarette manufacturers did not claim that smoking provided health benefits. But the government reversed itself in 1996 and classified tobacco products as "drugs" and "devices" subject to federal regulation.

All 50 states already ban tobacco sales to anyone under 18. In addition to adopting that rule, the FDA required stores to demand photo I.D. from all tobacco purchasers under age 27 and limited vending-machine cigarette sales to adult-only locations, such as bars.

Federal regulators also banned tobacco billboards within 1,000 feet of a school or playground, and set other limits on cigarette ads.

Tobacco companies challenged the rules. In April 1997, U.S. District Judge William Osteen upheld the FDA's authority to regulate tobacco and upheld the crackdown on sales to minors, but threw out the advertising restrictions.

The 4th U.S. Circuit Court of Appeals ruled last August that the FDA could not regulate tobacco at all. "Congress never intended to give the FDA jurisdiction over tobacco products," the appeals court said.

In the appeal acted on Monday, Justie Department lawyers said the August ruling "invalidated the most important public health and safety rulemaking that FDA had conducted in the past 50 years."

The appeal, supported by 39 states, said the FDA considered banning all cigarette sales, even to adults, but decided it would be dangerous to ban a product "to which so many millions of people are addicted."

The tobacco industry says FDA regulation of tobacco would force a ban because federal law allows marketing only of drugs that are proven safe and effective.

Short of a ban, the industry contends FDA regulation would let the agency control the contents of cigarettes, allow them to be sold only by prescription or limit the stores that can sell them.

The industry's lawyers said that setting tobacco policy is a political task for Congress, which already has prohibited tobacco advertising on radio and television, banned smoking on airplanes and required warning labels on cigarette packages.

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