Court upholds FDA authority to regulate tobacco products

FDA Consumer, July-August, 1997

FDA has the authority under the Federal Food, Drug, and Cosmetic Act to regulate cigarettes and smokeless tobacco, but not their advertising and promotion, according to a recent federal court decision.

Several companies, including cigarette and smokeless tobacco manufacturers and sellers, had sued FDA regarding its rule on children and tobacco.

Judge William Osteen of the U.S. District Court for the Middle District of North Carolina ruled on April 25 that FDA may:

* prohibit the sale of cigarettes and smokeless tobacco products to minors

* require retailers to check the photo I.D. of purchasers under age 27

* prohibit self-service displays and vending machines where children can access them

* prohibit free cigarette samples

* prohibit the sale of "kiddie packs" of less than 20 cigarettes

* require a statement on cigarette and smokeless tobacco packages of the product's established name, intended use, and age restriction.

The first two provisions took effect Feb. 28. The rest were scheduled to go into effect Aug. 28 but have been put on hold pending further orders by the court.

The government has appealed the court's finding that FDA lacks the authority to regulate the advertising and promotion of tobacco products.

"This is a fight we cannot afford to lose," President Clinton said on the day of the court decision. Each day, Clinton said, 3,000 young people become regular smokers, and 1,000 of them will have their lives cut short as a result.