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June,
2004

FDA REGULATION OF TOBACCO:
IT MAY BE CLOSER THAN EVER

A new bill that would give the Food & Drug Administration (FDA) authority to regulate tobacco products has been creating quite a stir since its introduction in late May. Unlike numerous false starts in recent years, the current bipartisan proposal is sponsored by two Republicans, Sen. Mike DeWine (Ohio) and Rep. Thomas M. Davis III (Va.), and by two Democrats, Sen. Edward M. Kennedy (Mass.) and Rep. Henry A. Waxman (Calif.). For the first time, both the House and the Senate are considering identical versions of a bill. The inside thinking is there's a fairly good chance this could pass.

The proposal, which has been declared a "milestone in the tobacco wars" by the Washington Post, links two unrelated but tobacco-themed issues: FDA regulation, and a buyout of the tobacco farming quota system. Even alone, each issue has created tremendous debate and drawn lines in the sand that cross party boundaries and industry sectors. Even President Bush and Democratic Presidential candidate John Kerry have weighed in on opposite sides of the buyout debate: Kerry for it, Bush against it. Within the tobacco industry, Philip Morris stands alone in its support of FDA jurisdiction over tobacco products, and White House support for FDA regulation is cooled significantly over time.

Each of the two issues, taken alone, has little to do with the other, but combined into a single bill, a strange dynamic emerges, all centered around who will pay for the tobacco quota buyout: public funding, or industry funding, likely in the form of a tobacco tax.

What exactly would tobacco regulation mean? Cigarettes are specifically the target, but just as the mail order ban legislation earlier in the year proved, legislation can change dramatically, in a heartbeat, with the simple addition of a few mere words, and all tobacco products could, and would likely be involved. The FDA would be allowed to restrict the concentration of nicotine in cigarettes, block advertising that targets minors or makes certain claims, toughen warning labels, and dictate how cigarettes are sold, such as requiring face-to-face sales transactions.

Those who feel the worthiness of a tobacco quota buyout is weak or dubious are none-the-less willing to consider it a small price to pay for the prize of winning FDA regulatory authority, and that's what may make this round of legislative debate different from past attempts. But only time will tell.

E. Edward "Ted" Hoyt III
Editor