The Supreme Court has made it clear that the Food and Drug Administration can't drive into tobacco regulation - at least not until Congress paves the way.
The logic of Congress doing just that is compelling. The full Supreme Court, even the narrow five-justice majority that ruled against the FDA, agreed that tobacco presents the greatest public-health threat in the United States today. The tobacco companies themselves have stopped defending their products. Philip Morris, the largest US cigarette firm, says it would welcome some form of federal regulation.
A number of lawmakers are drafting bills to give the FDA the authority over tobacco it unilaterally claimed back in 1996. That initiative, challenged by the cigarettemakers, led to this week's ruling. New legislation, however, could effectively hurdle the court, which based its decision on Congress's long record of shielding tobacco from regulators. What regulations exist, such as warning labels on cigarettes, have been drawn up by Congress itself.
A new regulatory mandate for the FDA would extend, critically, to how cigarettes are marketed and sold. The Clinton administration and antismoking groups will push hard for this.
How hard will the tobacco lobby and its congressional allies fight it?
Getting a new law through Congress in an election year won't be easy. Big Tobacco's money and lobbying remain potent. The industry worries that FDA regulation would result, inevitably, in a ban on cigarettes. Industry lawyers argued that point before the Supreme Court, citing it as one reason to deny FDA oversight. A ban, however, would probably replay the problems of Prohibition. It wouldn't be sound policy.
A more immediate threat to tobacco companies is continuing legal pressure. This week's decision by a San Francisco jury, awarding an ailing ex-smoker $1.7 million in damages, shows that the industry's troubles are far from over.
A bigger ruling could soon come in Florida, where a jury is weighing final damages in a class-action verdict against tobacco companies. Damages could top $300 billion.
Tobacco ought to be tightly regulated. Congress should put aside its history of protecting the industry and get on with granting the FDA the needed authority.
And the companies involved can then get on with their evolution into healthier products.
(c) Copyright 2000. The Christian Science Publishing Society