Tobacco giants hit back

DAVID USBORNE

New York

Five major tobacco companies submitted documents to the US government yesterday contending that it is acting illegally and in violation of the constitution by trying for the first time to regulate cigarette sales to the public.

The response, made to the Food and Drug Administration (FDA) hours before a deadline for comments on its plans for new controls on sales of cigarettes to minors, is the latest salvo from the industry as it tries to counter the momentum created by the anti-smoking lobby in America.

In a critical departure from past policy, the FDA announced last summer that it was proposing regulations to try to limit the access of minors to tobacco products. It defended its decision on the grounds that research had pointed to cigarettes being drug-delivery devices and therefore liable to the same controls as narcotics.

Specifically, the FDA said it would ask manufacturers to spend $150m (pounds 97m) a year on advertising to warn young people of the dangers of smoking. The sale of cigarettes from vending machines would be banned, as would cigarette advertising in locations deemed to be frequented by young people.

The FDA proposal drew public endorsement from President Bill Clinton, who made its implementation a high priority. While smoking among American adults has been declining in recent years, it is on the rise among minors. According to latest estimates, more than 3 million American adolescents are regular smokers.

"What the FDA proposes is a power grab," the tobacco companies protested in yesterday's 2,000-page document. They argue that the FDA's proposals are illegal under the constitution and unnecessary, because most states already control sales to minors.

Among the companies that made the response is Brown & Williamson, a subsidiary of British American Tobacco. The others were Philip Morris, RJ Reynolds, Lorillard Tobacco and the Liggett Group.

The FDA has also received large submissions from anti-smoking advocates who support the move but would prefer its provisions to be much stricter.

It is likely to be months before the FDA is able to make final preparations for enacting the rules. In the meantime, the tobacco industry has taken steps to try to block the FDA's path by filing a lawsuit.

Central to the industry's case is its claim that the FDA is mistaken in suggesting that cigarettes fit the legal definition of a drug, and that the effects of smoking fit the definition of addiction. On that basis, it contends, the FDA has no right to try to regulate cigarette sales.