Federal Court Case in N.C. Pits FDA Against Joe Camel

Joe Camel gets his day in court today.

In Greensboro, N.C., lawyers for the tobacco industry and the Department of Justice will square off in a federal district court over whether the Food and Drug Administration (FDA) has the jurisdiction to clamp down on the cartoon camel and the industry's other marketing and advertising campaigns. Lawyers will also argue over whether the government can infringe on the constitutional rights of the companies to advertise a legal product.

The battle has major ramifications for how the tobacco industry can spend its $5 billion marketing budget. In an effort to curb smoking among teenagers, the FDA has proposed banning advertising near schools, restricting most other advertising to black-and-white text, and prohibiting the sponsorship of sporting or entertainment events. The FDA would also prohibit the sale of loose cigarettes, limit vending-machine sales, and ban free samples. The new rules would go into effect Aug. 28.

If the government loses its case, the battleground is likely to shift to Congress. "If the courts decide against the FDA, I will do all I can to pursue legislation that explicitly gives the FDA jurisdiction to regulate and mandates specific measures aimed at reducing the number of children who smoke," says California Rep. Henry Waxman (D), ranking minority member on the Government Reform and Oversight Committee.

Getting new legislation through Congress would be a challenge, however. "The tobacco industry has always used its political and economic power through Congress to stifle meaningful control," says Matthew Myers of the Campaign for Tobacco-Free Kids.

The industry has asked for an expedited decision in the Greensboro case, so the judge's ruling could come as soon as next month. Both sides have filed more than 600 pages of legal briefs - all available on the Justice Department's World Wide Web home page (www. usdoj.gov/civil/cases/tobacco.htm). No matter the outcome, the losing side is expected to appeal the decision to the Circuit Court in Richmond, Va.

The tobacco companies and the government both declined to comment about the case until after the hearings.

Some industry analysts watching the Greensboro case expect the tobacco companies to prevail. "The odds are remote for the FDA to win its case since Congress has never given specific authority for them to regulate the industry," says Gary Black of Sanford C. Bernstein & Co., a New York-based brokerage house. Although the government maintains that nicotine is addictive, Mr. Black argues that the industry has never claimed smoking has a "therapeutic benefit;" therefore nicotine is not a drug.

But Congress has never specifically told the FDA it cannot regulate tobacco, says Allison Zieve, an attorney at the Public Citizen Litigation Group, which filed an amicus (friend-of-the-court) brief for themselves and 15 other groups. Also, the FDA can argue that new information shows the industry has viewed cigarettes as a nicotine delivery system. "In a nutshell, our approach is to regard nicotine as a drug and establish that the industry has known about the addictiveness for years," she says.

Getting past the industry's constitutional right to advertise may be an even tougher hurdle. The US Supreme Court has ruled that the government can't take away free-speech rights unless there is a compelling state interest. The restriction must serve that interest and be no broader than necessary. In its arguments, the tobacco industry says the FDA's proposed restrictions are overly broad. They argue that the government should see if new federal age restrictions, effective at the end of this month, have any impact.

But Mr. Myers says the FDA's effort "is nothing more than an attempt to treat tobacco as all other consumer products are treated." He also notes that the Richmond Circuit Court has let stand advertising restrictions that Baltimore enacted on tobacco billboard advertising.

If those types of restrictions spread nationally, they will turn Joe Camel's smirk into a frown