FDA hitting wrong targets
By Sen. WENDELL FORD
For Scripps Howard News Service
In August 1996, Food and Drug Administration regulations on tobacco became final, and by late February this year, the first of several requirements to stop youth smoking went into effect.
But a funny thing happened on the way to implementing the regulations. Tobacco opponents tripped over the Constitution, and advertising, tobacco industry and FDA lawyers went scrambling to the courts.
Because they restrict the content of advertising, the FDA regulations are highly suspect under the Constitution. Those constitutional questions add up to lengthy court cases and a guarantee the regulations will be paralyzed for years. That puts anti-smoking youth efforts and our children's health squarely on the back burner.
But judicial gridlock isn't our only option. We could hammer out a solution to the problem of teen smoking in Congress right now. The Tobacco Products Control Act, which I introduced, takes strong steps to restrict youth smoking while respecting constitutional boundaries.
Endless delay of the FDA's main objective is only one of the regulations' shortcomings. They will also create a new multimillion dollar bureaucracy, new taxes and restrictions that go well beyond the scope of youth smoking.
At least 10 federal agencies already regulate tobacco, but the new FDA regulations would add an enormous and expensive layer of bureaucracy. The administration's budget asks for $34 million to implement the regulations, despite assurances it would cost $3 million to $5 million. Future years will see the cost climb even higher and faster as more onerous regulations come into effect.
My legislation builds on the enforcement structure already in place. It would expand both the Federal Trade Commission's authority to enforce new bans on tobacco advertising affecting youths and the Department of Health and Human Services' authority over state enforcement of minimum age requirements and restrictions on the display and retailing of tobacco products.
FDA regulations also call on the tobacco industry to pay millions in new taxes for a public education campaign. This marks the first time in American history an agency has ever attempted to levy taxes against an industry, without an Act of Congress.
That's because the FDA statute allows the agency to impose user fees on medical devices to advertise for the appropriate use and possible side effects of a product. Since the FDA sees no "appropriate" use for tobacco, the education campaign amounts to requiring the industry to advertise against its own product's use.
Finally, the regulations infringe on First Amendment rights and go well beyond the scope of youth smoking. Under FDA regulation, a 50 year-old truck driver would no longer be able to buy a baseball cap with the word "Kool" written on it.
Assuming youth smoking is really the FDA's only concern, then it should embrace a workable legislative solution directed at the youth smoking market, not at the adult market.
Americans see government playing a role in promoting the nation's shared values - like stopping youth smoking. But the public also wants government to pursue those goals efficiently and responsibly. Long legal battles are neither efficient nor responsible.
We can reach the common goal of reduced teen smoking, but we should do it within the limits set by the Constitution, without creating a new, costly bureaucracy, without raising taxes and, most importantly, reaching it today rather than tomorrow.
In the meantime, litigation will continue to drag on for years, and nothing will be done about youth smoking. Wasn't that the whole point of FDA regulation in the first place?
Sen. Ford, D-Ky., is ranking member of the Senate Commerce Committee's Consumer Affairs subcommittee.