Monday, August 24, 1998

Judges put out FDA's powers over cigarettes

A federal appeals panel has in effect said Congress never, not even in its wildest imaginings, meant for laws it passed to grant the Food and Drug Administration the power to regulate tobacco as a dangerous drug. And for decades, the FDA agreed.

But critics of the court - including the editorial pages of major papers - express outrage that the FDA has been prevented by the court's decision from proceeding with plans to outlaw sales of cigarettes to juveniles and prohibit advertising aimed at them, among other steps. After all, they argue by way of non-sequitur, it has now been disclosed that nicotine is addictive and that tobacco companies have taken advantage of the fact.

These critics are essentially saying congressional intent doesn't matter, the rule of law doesn't matter and that separation of powers doesn't matter if there's a purpose they want served. The truth is, most people, including members of Congress, have known for a long time about the addictive qualities of tobacco. It's ludicrous to say they haven't, just as it is ludicrous to say, as the FDA has, that regulation is justified because cigarettes are "drug delivery devices." According to the appeals panel, that claim is sophistry. The FDA, it said, would have to take tobacco off the market as an unsafe product if it was covered by the law.

The critics of the ruling are right that the best way to empower the FDA at this point would be for Congress to pass new legislation. They are wrong that the legislation is advisable. Laws against youthful smoking already exist in the states - Texas has the country's toughest - and the advertising ban, which is also an assault on the First Amendment, would have minimal impact on teen smoking, some experts say.

Also, as an article in The Weekly Standard points out, the use of cigarettes per person in the United States has already gone down by 40 percent under policies chiefly stressing self-accountability. Proposed policies of intensified governmental manipulation would probably be insidious as well as ineffective.

In short, it does not require unprincipled governance to save lives lost prematurely to smoking.