ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Tuesday, February 11, 1997 TAG: 9702110102
SECTION: NATIONAL/INTERNATIONAL PAGE: A-5 EDITION: METRO
DATELINE: GREENSBORO, N.C.
SOURCE: Associated Press
Accusing the Food and Drug Administration of overstepping its authority, the tobacco industry on Monday asked a judge to block marketing and sales regulations aimed at curbing teen-age smoking.
Beginning Feb. 28, young people must present a photo ID for proof of age before buying cigarettes, under FDA rules. Many states bar such sales to people under 18.
Future steps also would restrict advertising in magazines, near schools and at sporting events.
Richard Cooper, an attorney for R.J. Reynolds Tobacco Co. and a former FDA counsel, said the FDA is taking a first step toward banning tobacco.
``Before us today is an extraordinary exertion of power by a federal agency. The FDA wants to exert its jurisdiction over the entire tobacco industry,'' he said.
U.S. District Judge William Osteen heard arguments on a motion by four cigarette makers and an advertising firm that want him to decide without a trial that the FDA lacks authority for its regulatory campaign.
Osteen, who was a tobacco industry lobbyist two decades ago, said a ruling is at least five weeks away. ``This case is too serious for both sides to give it any less consideration,'' he told lawyers.
``What's at stake is the future health of some of our children,'' FDA Commissioner David Kessler said after the hearing. ``The president stands firmly behind the regulations to try in a common-sense way to reduce the number of children who will become addicted.''
President Clinton has said the restrictions are needed to cut in half the number of teen-agers who start smoking each year - an estimated 1 million.
Cooper noted that the FDA did not act on the Surgeon General's first warnings about the health effects of cigarettes in 1965.
``Why? Because FDA had no jurisdiction,'' Cooper said.
A Justice Department lawyer disagreed.
``If Congress wants to pre-empt the FDA from exerting jurisdiction, it can do so,'' George Phillips told Osteen. ``It has not done this.''
During the hearing, the judge questioned Congress' failure to act.
``Why doesn't Congress just ban smoking by minors instead of dancing around the perimeter?'' Osteen asked.
Justice Department attorney Gerald Kell said the FDA classifies teen-age smoking as a pediatric disease and thinks teen-agers, unlike adults, are too young to make a rational decision about whether to smoke.
Outside the courthouse, John Fithian of the Freedom to Advertise Coalition said the case goes beyond tobacco advertising.
``It will affect how we advertise products in the future,'' he said. ``It's legal and reasonable to protect children. The problem with these regulations is that they are overly broad and affect every form of media.''
The plaintiffs in addition to Reynolds are Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., Philip Morris Inc., and Coyne Beahm Inc., a North Carolina advertising firm.
LENGTH: Medium: 61 linesby CNB