Us Justice Dept Urges Court To Uphold Tobacco Rules

The Justice Department urged a federal appeals court Wednesday to uphold the federal governments restrictions on advertising and promotion of tobacco products to minors.

In a 41-page filing with the appeals court in Richmond, Va., department lawyers said a federal judge wrongly decided that the Food and Drug Administration lacked legal authority over advertising and promotion of cigarettes.

They also argued that the judge correctly held that the FDA has the power to issue youth access and labeling restrictions, but was wrong in preventing those regulations from taking effect. The most important part of the April 25 ruling by U.S. District Judge William Osteen in North Carolina held that the FDA can regulate sales and labeling of cigarettes as drug delivery devices, a position the tobacco industry has fiercely opposed.

 

The tobacco industry had sued, challenging the new curbs on advertising and marketing of cigarettes imposed by federal regulators as unconstitutional. President Clinton in August 1995 authorized the FDA to regulate how cigarettes are sold and marketed in a bid to curb smoking by children.

The regulations struck down by Osteens ruling banned free samples and billboard ads near schools and playgrounds, limited vending machine sales and banned tobacco sponsorship of sports events and the use of cigarette brands on hats, T-shirts and other products.

The rules left standing required retailers to see photo identification for cigarette purchasers under age 27 and banned the sale of cigarettes to those under 18

Meanwhile State attorneys general negotiating a settlement with the tobacco industry expect to reach an agreement with cigarette companies next week, a source close to the talks said on Wednesday. The source told Reuters the negotiators were very upbeat following a two-hour telephone conference call in which they updated top state legal officials on progress in the talks. The source cautioned, however, that contentious issues could still foil an agreement.

If an agreement between the negotiating parties can be reached, the deal will still need White House and Congressional approval. Even if this is achievable, it could be a lengthy process.

The tobacco industry would not comment on when a deal might be reached, but Scott Williams, a spokesman for cigarette makers, said, Negotiations are continuing and both sides are committed to working through the questions and issues before them. Connecticut Attorney General Richard Blumenthal, who has been one of the more pessimistic of the negotiators, sounded enthusiastic after the conference. However, he refused to predict when an agreement might be reached.

Im more encouraged than ever by the strong sense of unanimity and support for public health principles and the opposition to restrictions on individual rights to a fair day in court, he said in a telephone interview.

He said the attorneys general are pleased about provisions they had negotiated in which the industry would agree to advertising restrictions, programs aimed at reducing underage smoking and payments for cigarette-related injuries. I think we have made progress over the last six to 10 weeks that would have been unimaginable at the beginning, Blumenthal said.

We are in reach of a settlement plan, but there are still obstacles to overcome, he said.

At least 36 attorneys general have sued the industry to recoup Medicaid costs of smokers. The state officers along with plaintiffs lawyers in class action cases and members of the health community have been negotiating with the industry since early April.

White House spokesman Mike McCurry said it was his understanding after talking with Bruce Lindsey, White House liaison to the talks, that negotiators have still got a lot of work to do.

As for any deal reached, Well see what it is and see whether we like it or not, he said.

He said the White House would go along with a suggestion from former Surgeon General C. Everett Koop that health groups approve the deal before the White House supports it.

Although health groups have been skeptical about a settlement, support for an accord has been growing. One of those groups, the American Cancer Society, said Monday it now believes that certain concepts to be included in a proposed settlement address its public health concerns, including efforts to stop smoking among children.

The group said a settlement that helps produce a smoke-free generation as soon as possible would be better in controlling cancer than waiting for the uncertain result of many years of continued litigation.

Negotiators said one of the remaining sticking points is how much control the federal Food and Drug Administration should have over nicotine in cigarettes.

On Tuesday, negotiators said they were recessing the talks because of a Jewish holiday. They denied published reports that talks ended because of an impasse over the nicotine issue. They said another meeting would be set next week, possibly as soon as Monday.

Several people close to the talks said negotiations hit a snag early Monday when Brown & Williamson Tobacco Corp., a unit of B.A.T Industries Plc, objected to regulatory provisions they felt would allow the FDA to ban cigarettes.

They said that while talks had grown tough at that point, negotiations did not collapse.

Prior to Wednesdays teleconference, Washington state Attorney General Christine Gregoire told Reuters her colleagues left the meeting with the industry on a fairly high note.

She said FDA control over nicotine remained a tough issue for the industry, but the attorneys general are firm that nicotine must be regulated.

Another disputed area is whether individuals will be able to sue to collect punitive damages, which are awarded to punish and deter certain behavior.

We continue to oppose the elimination of punitive damages, Blumenthal said.