U.S. Supreme Court Buys |
| The San Francisco Daily Journal, June 1, 2000 |
| Remember that intolerably bright kid in law school -- the one who delighted in perverse arguments and pretzel logic? He or she has apparently gone on to represent the tobacco industry, gleefully crafting the argument accepted by a 5-4 Supreme Court in FDA v. Brown & Williamson Tobacco Corp., 120 S.Ct. 1291 (2000), which held that cigarettes are too deadly to regulate under current law. |
| The FDA decision declares regulatory defeat in the face of "one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use." At issue in the case was the FDA's jurisdiction to restrict nicotine cigarettes as a combination drug-medical device, specifically by restricting its marketing to children and adolescents. |
| In virtually all states it is illegal for youths to smoke. Nonetheless, the court found that in the case of tobacco, the FDA is powerless to do what the court acknowledged it must do to fulfill its mandate of protecting Americans from all dangerous drugs. The Supreme Court majority sadly bought the industry's arguments that cigarettes are too harmful to be drugs because they have no therapeutic benefit. In the industry's version of Catch-22, cigarettes are simply too dangerous to regulate, because if it regulated them, the FDA would have to ban them. |
| How could this be? The FDA's own statutory mandate is to protect public health by assuring drugs are safe and effective. The law requires the FDA to prevent the marketing of any drug or device where the potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit. As the court notes, "In its rulemaking proceeding, the FDA quite exhaustively documented that tobacco products are unsafe, dangerous, and cause great pain and suffering from illness." |
| Surely the FDA can take action against the "single leading cause of preventable death in the United States." However, in the majority’s fatalistic view, "these findings logically imply that, if tobacco products were devices under the FDCA, the FDA would be required to remove them from the market." But this cannot be done because Congress, "has foreclosed the removal of tobacco products from the market." Again, why? Because years ago Congress declared that "the marketing of tobacco constitutes one of the greatest basic industries of the United States" and its economic stability is "necessary to the general welfare." |
| Is the general welfare the enemy of the general health, which would be improved by cigarette regulation. The majority knows "that tobacco products are addicting in much the same way as heroin and cocaine, and that nicotine is the drug that causes addiction." However, it grants nicotine amnesty from the war on drugs. In the majority's version of Congressional reality, where the public is squared off against the tobacco industry, the enemy is not it, but us. The court seems to be saying that tobacco is special and more deserving of protection than the lives and health of our people, referencing "the economic and political significance of the tobacco industry" in explaining its view of Congress's immunizing intent. Congress may be hazardous to your health. |
| As the dissent -- author Justice Breyer joined by Stevens, Souter and Ginsberg -- points out, it is only recently that the FDA has obtained evidence sufficient to prove the intent of the tobacco industry to market nicotine cigarettes as a drug. Surely old politics should not trump new evidence. |
| Although the Supreme Court leaves it to Congress to manifest a new regulatory intent, the failure of congressional initiatives to resolve tobacco claims has demonstrated the strong hold that the industry retains on Congress. |
| This leaves private litigation. Public litigation, in the form of government entity suits, proved successful in recouping much of the public's cost of treating tobacco-related disease and in obtaining youth marketing restrictions. However, the industry still has paid not one penny to any smoker on individual injury claims, despite several jury verdicts and punitive damage awards. |
| Even the most successful smokers' trial lawyers are not taking on individual tobacco cases in the wake of these recent victories, because smoker’s suits are too costly to win. The tobacco industry still successfully deploys its strategy of attrition to protect, on the private front, the immunity the Supreme Court has now affirmed on the regulatory front. |
| It is time for those engaged in private litigation to take up the torch passed by lawyers heroically engaged in individual smoker's suits, to establish tobacco industry accountability. |