Pubdate:  Tue, 12 Aug 1997

By Michael Connor 

WARM SPRINGS, Va. (Reuter)  A top federal lawyer pressing the Clinton
administration's claim to regulate cigarettes was peppered with hostile
questions Monday by appeals courts judges who could undo a key legal victory
for antitobacco forces. 

The appeals to be decided by three judges of the 4th U.S. Circuit Court of
Appeals come amid rising doubts about the future of June's tentative $368.5
billion settlement on regulating cigarettes. 

The judges' rulings could be a boon for either backers of the deal or
critics, such as public health organizations.  The judges were not expected
to rule until September or later. 

Rival lawyers  including U.S. Acting Solicitor General Walter Dellinger,
who represents the government before the U.S. Supreme Court  argued for
more than three hours over a split decision April 25 by U.S. District Judge
William Osteen in Greensboro, N.C. 

Osteen ruled that the U.S. Food and Drug Administration could regulate
cigarettes because their nicotine was addictive but denied the agency power
to limit cigarette advertising and sales practices. 

Both the government and an alliance of tobacco companies and advertising and
convenienceshop trade groups appealed the portions of the case each lost. 

Two of three appeals court judges repeatedly interrupted and challenged
Dellinger, asking what had prompted the FDA to claim the right to regulate
nicotine as an addictive substance nearly six decades after passage in 1938
of the U.S. law regulating much food, medicine and cosmetics. 

Dellinger said that, while the 1938 law did not specifically mention tobacco,
recent research had detailed the addictive functioning of nicotine and that a
U.S. Supreme Court decision involving the Chevron oil company gave government
agencies broad authority to expand their regulatory powers as knowledge
grows. 

``In 1938, the number of national and international bodies that believed
these products were addictive was zero,'' said Dellinger. 

But Judges Donald Russell and James Michael asked again and again for
specific findings to bolster a change in the FDA's stand, which came in 1995.

``Is there any evidence that cigarettes are more addictive now than in the
past?'', Russell asked. 

Dellinger said no, but the third judge, K.K. Hall, said the FDA had often
taken on regulation of drugs such as penicillin not invented or in wide use
in 1938. 

Dellinger said animal studies, biochemical research and other data gleaned in
recent years had created a broad scientific consensus that nicotine was
addictive. 

``Does that change the nature of nicotine between those two dates?'' Michael
asked Dellinger. 

``No,'' Dellinger said. 

Russell and Michael also asked if the FDA intended to regulate alcohol and
why the regulation of tobacco should not be accomplished through laws passed
by Congress. Dellinger said the FDA had no plans to ban smoking and that
congressional action was legally unnecessary. 

Richard Cooper, a lawyer for R.J. Reynolds Tobacco Co., argued that the FDA
regulations would allow the agency to ban cigarettes and to trample on the
constitutional rights granted commerce. with its unprecendented set of
advertising rules. 

``No drug or device had been regulated like this. It begs the question: Who
gets to decide, Congress or FDA?,'' Cooper said. 

The FDA's rules meant to control sales of cigarettes and chewing tobacco to
people under 18 went into effect in February, but the rules doing away with
cigarette vending machines and marketing tools such as the Joe Camel cartoon
character cannot be put in place because of Osteen's ruling. 

Cooper was seldom interrupted, although Hall said the nature of nicotine's
addictive powers and health dangers were better understood in the 1990s than
the 1930s. 

``The FDA got its butt kicked,'' said one stock analyst at the
hearing. 

But other analysts and antitobacco activists cautioned against reading too
much into the judges' questions. 

``Judges often play devil's advocate,'' said William Novelli, president of
the Campaign for TobaccoFree Kids. 

One analyst said Osteen last February asked tough, harsh questions of the
government lawyers at a hearing but issued rulings widely seen as a great
victory for antitobacco forces and former FDA chief David Kessler, who
attended Monday's hearing at the Bath County Courthouse in western Virginia. 

Monday's hearing, despite the tentative $368.5 billion settlement between
tobacco companies and 40 state attorneys general, could have great impact on
the U.S. tobacco industry, the tobacco companies and their oppoents said
after the hearing. 

``This case will determine how we do business in the forseeable future,''
John Fithian, a lawyer for the American Association of Advertising Agencies
and other publishing and ad organizations, said at a news conference. ``The
settlement is only a blueprint for action.'' 

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