Clinton Set to OK FDA Regulation of Tobacco as a Drug

WASHINGTON —  President Clinton is poised to declare that the Food and Drug Administration will regulate tobacco as an addictive drug, a move that could clear the way for broad government controls over the manufacture, marketing and distribution of cigarettes, White House officials said Wednesday.

The president’s announcement could come as early as Friday, said White House Press Secretary Mike McCurry.

Announcement of the long-awaited restrictions, which polls show are popular with voters, would give Clinton a boost going into next week’s Democratic convention in Chicago and mark a watershed in the history of America’s love-hate relationship with tobacco.

By taking jurisdiction over tobacco, the FDA would insert itself between consumers and cigarettes, a product that critics charge claims the lives of 400,000 Americans each year--more than the number who die of AIDS, car accidents, alcohol, murders and suicides combined.

The plan is expected to include sweeping regulations designed to curb teenage smoking. The regulations would include a ban on vending machine sales, restrictions on tobacco company sponsorship of sporting events, controls on advertising and a requirement that anyone buying cigarettes show proof of age.

But precise details of the package remain a tightly guarded secret. Neither the FDA nor the White House would discuss the final plan Wednesday.

“We aren’t confirming or denying anything,” said FDA spokesman Jim O’Hara.

Early court action is considered likely from the tobacco industry. While declining to say exactly what course the industry would take in response to the president’s expected announcement, a spokeswoman for the Tobacco Institute, the industry’s lobbying arm, vowed Wednesday that cigarette manufacturers would continue to fight “the unlawful assertion of jurisdiction” over cigarettes by the FDA.

“This is not about youth smoking,” spokeswoman Brennan Dawson said. “This is about an illegal power grab by the FDA.”

Clinton and FDA Commissioner David A. Kessler, the chief administration proponent of tobacco restrictions, first announced their intention to regulate tobacco on Aug. 11, 1995. In the 12 months since, the agency has taken public comment on its proposal and has worked furiously, and secretively, to draft a final version of the plan.

The plan was sent to the Office of Management and Budget last week. The agency has 90 days to review it, but McCurry said that the review is “progressing satisfactorily” and could be completed by Friday. Once OMB signs off on it, Clinton will announce the final rules.

The development comes at a time when the tobacco industry is under fire from a variety of fronts. The industry is facing lawsuits by 11 states that want to force tobacco companies to pay the Medicaid bills of smokers with lung cancer and other tobacco-related diseases.

Earlier this month, a Florida jury ordered Brown & Williamson Tobacco Corp. to pay $750,000 in damages to a retired air traffic controller who filed suit after 40 years of smoking. The case marked only the second time that a jury has awarded damages in a tobacco liability suit.

Moreover, tobacco stocks have been suffering this week from fears that an Indiana jury will soon issue a verdict on a lawsuit by the widow of an Indianapolis lawyer who charges the companies with negligence in her husband’s death.

When word of the FDA rules hit Wall Street on Wednesday, the stocks took a tumble. Philip Morris Cos. Inc., one of the nation’s most widely held stocks, fell $3.875 to close at $87.625 in heavy trading. RJR Nabisco Holdings Corp. stock declined $1.375 to $25.25.

The rules, however, will not be enacted without a battle. The tobacco industry is expected to file an immediate lawsuit to stop the plan. That is one reason White House aides, who are eager to have Clinton make the announcement before the convention, are refusing to confirm what is in it.

The rules have to be announced and implemented “meticulously and by the book, since it is obviously going to be litigated,” McCurry said.

Indeed, the mere announcement last year that the FDA intended to draft regulations brought a lawsuit from cigarette manufacturers. The suit has been stalled in state court in North Carolina, unable to move forward until the final rules are announced.

Even if the regulations survive a legal challenge, their fate will depend heavily on November’s presidential election. Republican nominee Bob Dole has said that he is opposed to the restrictions and has said he would fire Kessler if elected.

Nonetheless, tobacco foes were preparing Wednesday to celebrate what one called a “monumental event” in the decades-old fight against smoking. More than 90% of all new smokers begin before they are 18, and most public health advocates believe that the best way to curb tobacco use is to prevent it before it starts.

“These regulations are a milestone,” Jerie Jordan, who runs the American Cancer Society’s tobacco-control program, said Wednesday. Cigarette manufacturers “sell the most dangerous product on the market, and they are the least regulated. I have sawhorses with better warning labels than cigarettes have.”

David Burns, a UC San Diego pulmonologist who helped draft the surgeon general’s 1986 report on secondhand smoke, predicted that, if the regulations are put in place, “the tobacco companies will be phased out of business. I think they will take their profits and invest them in other areas, and 20 years from now they will be doing something else.”

There is, however, one huge unanswered question: How closely will the regulations follow what Clinton has already proposed? One crucial difference could come in the area of advertising restrictions, which tobacco foes view as a cornerstone of the original FDA proposal.

That plan called for a sweeping ban on cigarette ads that could be viewed by young people. The companies, for instance, would no longer be able to sell hats and T-shirts with names or symbols of tobacco products, such as the Joe Camel cartoon character.

Sporting events, such as the Virginia Slims tennis tournaments, would no longer be permitted to carry tobacco company endorsements. And, in the most controversial element, magazines whose readers primarily are younger than 18 no longer would be permitted to carry tobacco ads in color. The advertisements would be allowed in black and white.

But those features of the initial FDA draft, which also are opposed by the advertising industry, have been called into serious question. In May, the U.S. Supreme Court declared that a Rhode Island law restricting liquor advertising was unconstitutional. Legal analysts say that the ruling casts doubt on the tobacco advertising restrictions as they were originally proposed.