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Tobacco cos. likely to sue
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August 23, 1996: 8:28 p.m. ET
Experts: cigarette firms plan three-pronged fight on Clinton's move
From Correspondent Kelly Arena
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WASHINGTON (CNNfn) -- Experts see President Clinton's decision Friday to give the Food and Drug Administration authority to regulate nicotine as a drug as merely the latest phase in the fight over smoking.
Analysts expect the next battle to be fought in the nation's courtrooms.
On Friday, Clinton signed an order placing nicotine under the FDA's jurisdiction.
The measure means the government will no longer regulate tobacco as an agricultural product, but as an additive drug.
Clinton's decision bans such things as snappy cigarette advertising. Rather, the move requires cigarette companies to stick with the black-and-white, all-text ads that pharmaceutical firms now use.
Clinton's order also bans cigarette billboards near schools, while also prohibiting cigarette vending machines from places where minors have access to them.
The administration says the new rule's intent is clear -- to stop kids from getting hooked on tobacco.
Anti-smoking groups applauded the move.
"The FDA has jurisdiction over nicotine because (the agency) found that (the substance) does have drug-like affects -- and that the manufacturers intend those (effects)," said John Banzhaf, executive director of the group Action on Smoking and Health.
Banzhaf charged that tobacco companies' "own memos brag about how addictive (nicotine) is -- about experiments to make it more addictive." .
But tobacco-industry supporters plan lawsuits, with a three-pronged attack against the new rule.
First, the industry argues that the FDA does not have jurisdiction over tobacco.
"The FDA is trying to say nicotine is a drug, but the tobacco companies have never claimed that there are any health affects -- good or otherwise -- from using nicotine," said Julie DeFalco of the Competitive Enterprise Institute. "If (tobacco firms are) not making health claims, then the FDA can't really regulate them."
Second, analysts expect tobacco companies to argue that the new regulations violate the U.S. Constitution's free-speech guarantees.
Finally, those like Jerry Taylor of the Cato Institute argue that new rule is just the first step in a campaign to ban cigarettes altogether. (115K WAV) or (115K AIFF)
"The FDA might not decide to absolutely prohibit cigarette manufacturers and sales under (Friday's) rule," he said, "but the lawsuits might force (tobacco manufacturers) to do so. "How can you prove that cigarettes are safe and effective? You simply can't."
Of course, Congress could step in at any time and override the president's actions.
However, analysts see such a move as unlikely, especially in an election year. 
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