Before the ink was even dry on Tuesday's Supreme Court decision that effectively ended the Food and Drug Administration's authority to regulate cigarettes, congressional tobacco opponents were mustering their troops for a legislative push to broaden the FDA's powers.
Sen. Edward Kennedy, D-Mass., decried the Supreme Court decision and has already begun putting together legislation aimed at "giving the FDA jurisdiction over the marketing and sale of tobacco," Kennedy staffer Jim Manley said Tuesday.
Kennedy hopes to enlist the support of former anti-tobacco ally Sen. Bill Frist, R-Tenn., in drafting a bipartisan bill, Manley said. Frist's office confirmed that the senator is reviewing Tuesday's decision and may consider introducing legislation to expand the FDA's scope.
Kennedy and Frist have worked together on previous tobacco legislation, and Manley said he is optimistic that a bill to broaden the FDA's powers in the area of tobacco regulation "can move quickly through both the House and Senate."
If all goes well, Kennedy and Frist may introduce legislation within a month, Manley said.
Tobacco opponents were disappointed but not surprised when the court ruled 5-4 that the FDA's congressional charter does not give the agency jurisdiction over tobacco products.
"This was what everybody expected, given the types of questions that the justices were asking" when they heard the case last fall, said Donald Shopland, coordinator of the Smoking and Tobacco Control Program at the National Cancer Institute. "It just puts us back to square one."
The tobacco industry predictably cooed over the decision.
"Business and industry throughout the nation ought to breathe a sigh of relief. The highest court in the land has confirmed that a federal agency cannot on its own go beyond its limits of authority set by Congress," Brown & Williamson Tobacco Corp. said in a release.
It was Brown & Williamson that sought the initial injunction on which Tuesday's Supreme Court decision was based.
Brown & Williamson and other tobacco companies rallied against a 1996 move by the FDA to establish uniform federal rules aimed at preventing tobacco sales to minors. Those rules prohibited the sale of tobacco to kids under 18, banned the sale of individual cigarettes and prohibited cigarette vending machines except in bars and other "adult-only" businesses.
Attorneys for big tobacco argued that their product was not a drug subject to FDA control.
The Supreme Court, as it turned out, agreed. While the court called youth smoking, and indeed smoking in general, "one of the most troubling public health problems facing our nation today," it ruled that the FDA could not be reasonably expected to regulate tobacco.
At the heart of the majority opinion, authored by Justice Sandra Day O'Connor, are two apparently irreconcilable legislative precedents: that Congress has expressly prohibited the "removal of tobacco products from the market"; and that the FDA must, under its own rules, ban any product that is not "safe" and "efficacious."
Since the FDA and every other agency in the federal health pantheon have repeatedly averred that tobacco is patently unsafe, the agency would be forced to ban the product in defiance of congressional edict if it were granted regulatory control, the court found.
In a somewhat ludicrous twist, the FDA had attempted to argue that tobacco products were in fact "safe" under the definitions included in the agency's official charter, but the court wasn't swayed by the argument.
"No matter how 'important, conspicuous, and controversial' the issue ... an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress," O'Connor wrote.
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