October 25, 2014 · 1 Cheshvan

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Legislative Summary: Tobacco and the Food and Drug Administration

On March 21, 2000, the United States Supreme Court ruled, 5-4, that the Food and Drug Administration (FDA) does not have authority to regulate tobacco products. The Court's ruling means only that the necessary legislation is not in place to grant the FDA the authority it needs to regulate tobacco. Investing the FDA with control over tobacco products is the crucial first step in turning the tide of smoking-related death. By regulating the content of tobacco products, restricting youth access to tobacco, and restricting tobacco marketing practices, the federal government will begin to address the conduct of the largely under-regulated tobacco industry.

Once granted authority over tobacco, the FDA would resume implementation of its Tobacco Rule, a comprehensive system for restricting youths' access to tobacco products. The Rule established 18 as the national minimum age for purchasing cigarettes and smokeless tobacco and required retailers to verify the age of customers who appear younger than 27. Prior to the Supreme Court's ruling, the FDA had contracted with 41 states and two territories to check the compliance of tobacco retailers. Thirty states had these compliance programs up and running and more than 75,000 compliance checks had been completed.

Prior to the FDA Rule, minors had easy access to tobacco products. An analysis of 13 different studies of over-the-counter sales of tobacco found that, on average, children and adolescents were successful in buying tobacco products 67 percent of the time. Without the Rule, retailers can sell to minors, largely unchecked.

Establishing federal jurisdiction over tobacco would also allow the government to:

  • regulate the content of tobacco products, making them healthier for smokers and safer for those exposed to secondary smoke;
  • create an enforceable mechanism requiring tobacco companies to disclose the contents of their products;
  • institute a nationwide, enforceable system for restricting youths' access to tobacco; and
  • institute marketing guidelines to restrict tobacco advertisement that greatly influences children.

H.R. 4042, introduced on March 21, 2000 by Representative Henry Waxman (D-CA), would authorize the Food and Drug Administration (FDA) to regulate tobacco products as a drug or device. By re-enacting the 1996 FDA tobacco regulations and making them the law, a restriction on the sale of tobacco products to youths, a requirement of retailers to ask for identification from anyone purchasing tobacco products who appeared to be under age 27 and a ban cigarette vending machines from any venue that was not deemed "adult-only" would occur.

Additionally, H.R. 4042 would strengthen advertising requirements on tobacco products 18 months after its enactment. It would ban tobacco advertisements in all electronic communications. The bill would require the Department of Health and Human Services (HHS) to issue a ruling about what may be considered to be the ingredients of tobacco. It would make it unlawful for any tobacco vendor to advertise or imply that their product poses less of a health risk than other tobacco products unless the department specifically permits such advertisements. Finally, states would be encouraged to set up plans to reduce tobacco use and would not receive funds under the measure if they failed to do so. This part of the bill would take effect two years after the bill's enactment.



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