Tobacco threat contained but not extinguished

There have been recent successes in repelling tobacco industry attempts to overturn federal regulation. But this is no time for complacency.

Posted Feb. 15, 2010.

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Physicians and other public health advocates fighting in the tobacco wars have claimed some major victories in recent months but also have seen reminders of the need to remain vigilant against the onslaught of a committed foe.

Soon after the June 22, 2009, enactment of a landmark tobacco regulation law, some members of Big Tobacco launched the first of an expected series of legal challenges in an attempt to weaken the flanks of the statute. Anticipating this tactic, public health champions stepped up to defend the law and the public it was designed to protect.

The outcome of the first big skirmish in the courts was decidedly in favor of the public's well-being. A federal trial court in Kentucky ruled in November 2009 that tobacco firms could not use a First Amendment-rights argument to claim that the Food and Drug Administration's new authority over the industry's questionable marketing practices went too far. Instead, the court affirmed the argument that the massive threat posed by the No. 1 cause of preventable death in the U.S. made it clear that the government was well within its rights to take a strong stand on behalf of consumers everywhere.

The tobacco companies involved in the lawsuit claimed that better enforcement of laws already on the books before June 2009 would be sufficient. But the government has tried that time and time again, and typically, the tobacco industry showed its willingness and ability to slip out of the grasp of any regulation that came its way. All the while, smoking-related health conditions continued to worsen, more kids got hooked on nicotine, and more people died.

This time around, it won't be so easy for the cigarette makers to escape their responsibilities.

A January ruling from the same Kentucky district court affirmed that the FDA was on solid ground in requiring larger warning labels on tobacco products and banning the sale of "light" products without prior federal approval. The decision validated some of the most significant elements of the landmark regulation statute and hobbled the ability of tobacco firms to continue misleading consumers.

Even though these were some big wins for public health, complacency is not an option for patient advocates.

The tobacco industry has such a strong economic interest in crippling the new statute that it likely will appeal any court decisions that don't go its way. But physicians and the legal firepower at their disposal -- including the Litigation Center of the American Medical Association and State Medical Societies -- have an even stronger interest in protecting the law: the health and lives of their patients. Expect these advocates to continue to fight as long as it takes, even if that road eventually leads to the highest court in the land.

It should be noted that the outcomes have not gone entirely in favor of the public's health. In the January ruling, the Kentucky district court declined to dismiss the First Amendment challenge to FDA restrictions against marketing cigarettes as safe products simply because the government is regulating them more tightly. The judges also sided with the industry on the issue of restricting color and graphics in tobacco advertising, which have been used to entice many young children to light up their first smokes and fall into addiction.

Still, there are reasons to be optimistic that public health advocates will prevail in protecting effective FDA regulation. As things stand, none of the challenges to the bill so far has targeted the heart of the statute: the affirmation that the FDA has the authority to regulate tobacco. Instead, the threats have been coming from the sides, on unrelated free-speech and marketing issues.

That said, a well-delivered blow to the flank is a well-established and highly effective maneuver. Recent events show that some members of Big Tobacco know this tactic well. Fortunately, so do advocates for the public's health.

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