Clinton Approves Unprecedented Measures to Curb Youth Smoking

TOBACCO October 1995

In a move that challenged the political might of the tobacco industry, President Clinton ordered new measures to limit teenagers' access to tobacco products and to deglamorize some cigarette advertising (Ann Devroy and John Schwartz, "Clinton Moves to Limit Teenage Smoking," Washington Post, August 11, 1995, p. A1; for background, see Laurie McGinley and Timothy Noah, "Long FDA Campaign and Bit of Serendipity Led to Tobacco Move," Wall Street Journal, August 22, 1995, p. A1).

The new proposed measures were announced by the Food and Drug Administration (FDA) on August 10, and include regulations on the types of permissible tobacco advertising and cigarette promotions and stricter regulations on cigarette sales. The FDA's proposal was met immediately by a tobacco industry lawsuit in federal court.

The FDA's actions were praised by the President, who said he wants to cut youth smoking rates in half by controlling "the deadly temptations of tobacco and its skillful marketing." Clinton gave the FDA the power to regulate tobacco on July 12 after that agency declared that nicotine is a drug (Philip J. Hilts, "Tobacco Held to Be Drug That Must Be Regulated," New York Times, July 13, 1995, p. A18).

Although the FDA considers nicotine a drug, it announced that technically it will not regulate nicotine as a drug, but cigarettes as medical devices. This distinction allows the agency to side-step the issue of tobacco's risks and dangers. If regulated as a drug, the FDA would have to conclude that tobacco products are "safe" and "effective" or otherwise ban them altogether. Standards for regulating medical devices are less strict.

The FDA proposed rules include a ban on cigarette vending machines, restrictions on tobacco companies' sponsorship of sporting events and distribution of clothing and other promotional items bearing cigarette brand names, and implementation of a tobacco-sponsored $150 million anti-smoking campaign. The FDA is also seeking to place restrictions on tobacco advertising around schools.

The federal lawsuit, sponsored by five tobacco companies, seeks to block the proposed rules from going into effect on the grounds that the FDA has no authority to regulate tobacco products. Even if the tobacco industry eventually loses the suit, it could hold up implementation of the rules for many years. Three smokeless tobacco companies have also filed a lawsuit.

Clinton said that obstacles such as the lawsuit could be overcome if Congress legislated the changes. Legislators from tobacco states vowed to block any such attempt.

The advertising industry objected to the rules as well, and filed their own suit against the FDA. One of the FDA provisions seeks to limit ads in some publications to black-and-white text only and to limit cigarette advertising outdoors and in stores (Yumiko Ono, "Tobacco Firms Rush to Counterattack Despite Signs of Dissension in Ranks," Wall Street Journal, August 14, 1995, p. A3).

FDA Commissioner David A. Kessler said the basis for action by the agency is clear. The Centers for Disease Control and Prevention estimate that medical costs associated with smoking amounted to $50 billion in 1993. Approximately 400,000 people die every year from tobacco-related illness (John Schwartz, "Cigarettes Treated as Medical Devices," Washington Post, August 11, 1995, p. A15).

"If you don't start to smoke by age 18, then it is unlikely that you will ever begin," Kessler said. He said youth smoking increased 30 percent between 1991 and 1994, according to statistics released by the University of Michigan in June. In 1994, 9 percent of 8th-graders, 14.6 percent of 10th-graders, and 19.4 percent of 12th-graders said they soked every day.

If the regulations go into effect, enforcement will lie mainly with the tobacco companies. The FDA does have the power to request the companies take action in response to a violation, and to take the company to court if necessary.

In a surprising twist, cigarette retailers expressed their outrage at Philip Morris' plans to restrict how cigarettes are sold. The retailers complained that the company tried to head off regulatory measures by scapegoating businesses that sell their products. The tobacco company's proposed rules would only allow licensed retailers to sell the products and would establish sharp penalties for stores caught selling to minors (Suein L. Hwang, "Philip Morris Plan Infuriates Cigarette Retailers," Wall Street Journal, July 28, 1995, p. B1).

In addition to these new regulatory attacks, the tobacco companies are also facing a number of criminal investigations. The U.S. Attorney's Office for the Southern District of New York is investigating whether Philip Morris intentionally hid documents and studies about the effects of smoking and its cigarette-manufacturing practices.

The Justice Department is also looking into charges from Rep. Martin Meehan (D-MA) that tobacco representatives knowingly or intentionally lied in their testimony before a House subcommittee, which is the felony of perjury.

Four states are currently suing tobacco companies to recover smoking-related costs (Viveca Novak and Alix M. Freedman, "Tobacco Industry Facing 2 Criminal Investigations," Wall Street Journal, July 25, 1995, p. A3).