HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, May 26, 2009

Regulating Tobacco

The Hill reports that tobacco and tobacco products will soon fall under some government agency's   jurisdiction.  J. Taylor Rushing writes,

The congressional drive to bring tobacco under Food & Drug Administration control -- given new life in the Senate last week --  is poised to approach the finish line in the Senate in June, but not without a bipartisan fight from North Carolina's two senators.

Sens. Kay Hagan (D) and Richard Burr (R) plan to push a substitute bill that would put the controversial drug under the control of a newly created entity of the U.S. Department of Health and Human Services instead of the FDA. The substitute bill by Burr and Hagan has been criticized by critics who say taking control outside the FDA would short-circuit attempts at worthwhile regulation, while Burr and Hagen say HHS is better equipped to regulate the drug. . . .

The Family Smoking Prevention and Tobacco Control Act passed the House by a vote of 298-112 on April 2 -- a vote opposed by most House Republicans. Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.), said last week that Senate Democrats plan to move forward on their side sometime in June.  The Senate's Health, Education, Labor and Pensions Committee passed the bill on a 15-8 vote last Wednesday. . . .

The bill -- primarily pushed by HELP Committee Chairman Edward Kennedy (D-Mass.) would set new FDA regulations on nicotine. Federal officials would gain new power to regulate the ingredients, marketing and disclosure requirements of cigarettes, for example, including the power to ban advertising that seeks to downplay the drug's effect, such as companies that advertise cigarettes as "low-tar," or "mild."  The bill is also an attempt to circumvent a March 2000 Supreme Court ruling that struck down a Clinton administration attempt to regulate tobacco. On a 5-4 vote, justices at the time said the FDA was "overreaching" in attempting to regulate tobacco without congressional approval. . . .

But the bill won't go down without a fight. Democrats say they have the necessary 60 votes to pass the bill, but Burr said he will lead opposition.  "FDA's core mission is to prove the safety of every product that they regulate -- except for tobacco, which we know is dangerous and kills people," said Burr. "So what do you do, ask FDA to ignore their core mission when it comes to tobacco but apply it on everything else?"  Burr said he and Hagan do not disagree with the need for increased regulation.  ,But where you put it is important," Burr said.

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