WASHINGTON--A Federal appeals court has ruled that regulation of
tobacco rests with Congress, not the FDA. In a 2-to-1 vote, a panel
of the Fourth Circuit Court of Appeals, Richmond, Va, overturned a
lower court ruling that had upheld FDAs right to regulate tobacco.
The judges wrote, in the majority opinion: "We do not dispute in
this case that Congress has charged the FDA with protecting the
public health and that tobacco products present serious health risks
for the public."
However, the judges went on to say, there is "strong evidence
that Congress has reserved for itself the regulation of tobacco
products rather than delegating that regulation to the FDA. . . .
Based on our review of the record, the FDA lacks jurisdiction to
regulate tobacco products, and all of the FDAs regulations of
tobacco products are invalid."
The proposed comprehensive tobacco bill, defeated in the Senate in
June, would have explicitly granted FDA the right to regulate
nicotine as a drug and cigarettes as a drug-delivery system.
The appellate court ruling overturns the FDAs program to
restrict teenage tobacco use that included requiring persons under
age 27 to present photo ID when purchasing cigarettes and prohibiting
the sale of tobacco products to persons under the age of 18.
Justice Department officials plan to appeal the ruling to the full
Fourth Circuit appellate court. If the full court does not overturn
the ruling of the three-judge panel, the government could then take
its appeal to the US Supreme Court. The FDAs antitobacco
regulations will remain in effect during the appeals.