From: [v--ta--e] at [phoenix.net]
Newsgroups: talk.politics.misc,alt.politics.usa.republican,alt.politics.usa.newt-gingrich,alt.politics.economics,alt.fan.rush-limbaugh
Subject: TOBACCO COMPANIES SUE TO PREVENT CONTROL OF CIGARETTE SALES
Date: Fri, 11 Aug 95 18:19:12 PDT


Tobacco Companies Sue To Prevent Control of Cigarette Sales
By GLENN COLLINS of The N.Y. Times News

The nation's five largest tobacco companies Thursday sued to block the 
Food and Drug Administration from regulating the sale, promotion and 
distribution of cigarettes, and in a joint announcement sharply attacked 
Dr. David Kessler, the commissioner of Food and Drugs.

The companies seeking an injunction in U.S. District Court in Greensboro,
N.C., were Brown & Williamson Tobacco Corp., whose parent company is 
the London-based BAT Industries; Liggett Group Inc., a subsidiary of 
Brooke Group Ltd.; Lorillard Tobacco Co., a joint venture of Loews Corp.; 

Philip Morris Companies Inc. and R.J. Reynolds Tobacco Co., a subsidiary 
of RJR Nabisco Holdings Corp.

Also suing was Coyne-Beahmn Inc., an advertising agency that said it 
derived substantial revenue from the promotion of cigarettes.

Terming Kessler an "unelected bureaucrat" who was part of an 
"anti-smoking cabal," Steve Parrish, senior vice president of corporate 
affairs for Philip Morris, maintained that the commissioner "is on a 
power grab and is trying to make this his own personal issue."

Although President Clinton said Thursday that the FDA's proposals were 
intended to curb teen-age smoking, Parrish contended that the agency's 
"hidden agenda" was to prohibit cigarette smoking by adults.

"David Kessler is trying to sneak through the back door," Parrish said,
adding that the commissioner's action "can only be described as a Trojan 
horse, set forward under the guise of preventing youth smoking."

Kessler had no comment. But Jim O'Hara, a spokesman for the FDA, said: 
"Dr. Kessler is a pediatrician who cares about children, and has devoted 
his life to public health. We regret we're being sued, but we're going 
to fight for our kids."

Dr. Sidney Smith Jr., president of the American Heart Association, called
the lawsuit "the last gasp of the tobacco industry," and asked, "If 
the tobacco industry is genuinely concerned about the health of children,
why would they sue?"

He added: "When 3,000 children start smoking every day, I think we've 
got a problem with the front door, not the back door. And when over 
400,000 Americans die yearly from tobacco-related illnesses, it's hardly 
a Trojan horse, particularly when we know that 90 percent of smokers 
start before the age of 18."

A heart association lawyer, Scott Ballin, said, "The tobacco companies 
will lose because there is no question that the agency is legally on 
very sound ground."

But others say the companies can block the agency's proposals.

"There is no way that the courts will allow the FDA to regulate tobacco 
as a drug," said Gary Black, a tobacco analyst for Sanford C. Bernstein 
& Co. He predicted that the case would take a year to resolve.

The tobacco companies' lawsuit is now before Federal Magistrate Judge 
Trevor Sharp, who can preside over the case if the tobacco companies 
and the FDA agree.

If Sharpe is challenged, the case will go to the next of seven available 
District Court judges.

In their lawsuit, the tobacco companies charge that regulation would 
hurt their ability to compete and would violate their freedom of speech. 
They are challenging the FDA's ability to assert jurisdiction over 
cigarettes under a federal law that gives the agency power to regulate 
medicines, medical devices and pharmaceutical products.

The Greensboro venue, in the heart of tobacco country, may be significant
in determining the outcome of the case.

Parrish said the tobacco companies filed suit in North Carolina because 
all five companies have tobacco plants there.

"The Middle District has proved to be enormously friendly to the tobacco 
companies," said Graham Kelder, managing attorney of the Tobacco Products 

Liability Project at Northeastern University School of Law in Boston,
a nonprofit anti-smoking group.

In June, Judge William Osteen Sr. of the North Carolina Middle District 
ruled that the tobacco companies had legal standing to bring a lawsuit 
challenging the Environmental Protection Agency's 1993 classification 
of second-hand smoke as a carcinogen.

"That decision was very favorable to the companies, and surprised many 
who thought the plaintiffs didn't have standing," Kelder said.

Osteen is one of the seven judges who could preside over the FDA suit 
if Sharp is rejected.

Philip Morris has spent more than $5 million on its own voluntary program
to control teen-age smoking, which was announced by the company in June.

"But voluntary efforts have not worked," said Smith of the heart 
association. "That's why we support the president's action."

The tobacco companies' lawsuit asserts that in amending the Federal 
Food, Drug and Cosmetic Act nearly 70 times, Congress has not given 
the FDA jurisdiction over tobacco, and that on 20 occasions Congress 
has failed to pass legislation that would have granted the agency 
jurisdiction over the tobacco industry.

Story Number:00136 Story Date: 8/10/95