Split Decision in Tobacco Case

By Nora FitzGerald

WASHINGTON, D.C.–Both the advertising industry and the Food and Drug Administration came away victors from the Greensboro, N.C., tobacco case Friday in which a federal judge said that the FDA may regulate tobacco but may not restrict advertising of the product.

The case involves two lawsuits: one brought by the tobacco manufacturers and the other by the advertising industry against the FDA. Judge William Osteen decided that while the FDA has authority over tobacco, it has no jurisdiction over advertising.

Hal Shoup, executive vice president of the American Association of Advertising

Agencies, said, ‘We were granted exactly what we were seeking: summary judgment that prevents the FDA from implementing its proposed restrictions on the truthful advertising and promotion of a legal product.’ ‘This was a victory for advertising and a repudiation of the FDA’s efforts to regulate tobacco advertising,’ said Dan Jaffe, executive vice president of government relations for the Association of National Advertisers.

President Clinton said in a statement that an appeal will be filed for parts of the case that were not upheld–namely the enforcement of ad bans. The Fourth Circuit Court of Appeals in Richmond, Va., which has already decided in favor of billboard bans in a related case, will hear the appeal. ‘This is (an) historic and landmark day for the nation’s health and children,’ Clinton said. ‘With this ruling, we can regulate tobacco products and protect our children from a lifetime of addiction and the prospect of having their lives cut short ‘

Clinton went on to say that keeping tobacco billboards away from schools and not allowing the sale of cigarettes to minors, all part of the FDA plan, is ‘just plain common sense.’

The decision by the U.S. District Court for the Middle District of North Carolina will likely impact ongoing negotiations between the government and tobacco companies, legal scholars said. ‘This decision takes the advertising card away from the government,’ said Paul Rothstein, constitutional law professor at Georgetown University in Washington, D.C. ‘But it gives them a much more important card–the specter of FDA regulation.’

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