Should FDA Have the Power to Regulate Tobacco?

May 19, 2009— -- Smokes may be more deadly than ever. Even President Obama has said it's been a challenge to quit.

But according to federal law, the Food and Drug Administration does not have the power to regulate cigarettes, despite repeated efforts to grant it this authority.

That could soon change if legislation now before a Senate panel makes headway on Capitol Hill.

"Over the years, this bill has been reviewed and vetted and debated over and over and over again," Sen. Chris Dodd, D-Conn., said at today's meeting of the Senate Health, Education, Labor and Pensions (HELP) committee. "I think all of us believe the time has come to act."

The panel started considering a bill today that would give the FDA authority to regulate tobacco just as it already has for food and drugs. With dozens of amendments to wade through, the committee will continue Wednesday afternoon.

Newfound authority over tobacco would mean the FDA could hold cigarette manufacturers to the same standards for quality control and marketing that it holds makers of breakfast cereals and pharmaceuticals. It could also move to reduce nicotine levels and harmful chemicals in cigarettes.

And it could mean cigarette makers would be required to include new, larger warning graphics with more health information on their products and would be prohibited from using words like "light" and "low tar" in their marketing.

The effort introduced on both sides of the Hill -- by Ted Kennedy, D-Mass., in the Senate and Calif. Democrat Henry Waxman in the House -- would also give the FDA the power to decide how cigarettes are advertised and authority to monitor how they're promoted to youth.

The legislation would not have the power to ban cigarettes and nicotine outright.

"Tobacco products are unlike any other products on the market in that they are unusually lethal, but yet not highly regulated," FDA Commissioner Margaret "Peggy" Hamburg told the Senate panel May 7 as lawmakers were considering her nomination for the job.

"One can never count on anything in the United States Senate," Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, told ABCNews.com today. "But this is a bill that has been around for a long time -- whose support has increased with every Congress -- and includes senior respected Republicans among its supporters."

Still, it won't be easy to overcome resistance to the measure.

"Our hope is that the Senate HELP committee will resist all of those efforts to weaken the legislation," Myers added today.

A similar measure was passed last month by the full House. If passed by the Senate panel and then the full chamber, the House and Senate would work to iron out the differences before sending it to the White House for Obama's signature.

Unlike former President Bush, who suggested he'd veto legislation to give the FDA authority over tobacco, Obama has said he supports it.

The Politics of Smoking

It's not a new fight on Capitol Hill. In 2000, the Supreme Court ruled the FDA could not regulate tobacco according to current law. Many lawmakers and anti-smoking groups have been trying to change the law since.

In late July 2008, under the previous Congress, House lawmakers passed a similar measure. At that time, the same Senate panel, voting on the measure today, approved the measure. The effort never made it all the way to the White House.

Some who oppose the legislation say the FDA may not be up to the task. Others have said oversight over tobacco goes against the agency's mission to protect the public health.

"How does the FDA regulate a product that is neither safe nor beneficial to public health?" Sen. Orrin Hatch, R-Utah. asked Hamburg at her recent confirmation hearing. "If the tobacco legislation becomes law, how does the FDA intend to obtain the necessary resources in order to carry out this responsibility, especially when it lacks the resource to conduct its current responsibilities?"

Hamburg, confirmed by the Senate just Monday, said the FDA should take on the responsibility and would rely on user fees from the tobacco industry, called for in the bill, to fund the effort.

"I think that the FDA is the appropriate agency to regulate tobacco," she said. "It has the scientific expertise, the regulatory experience and the public health mission to do so. And I think that if done sucessfully, we can reduce smoking and we can help to make cigarettes less harmful."

Perhaps surprisingly, big tobacco producer Philip Morris also supports the bill.

"The Family Smoking Prevention and Tobacco Control Act, as passed by the House of Representatives, is not perfect and contains provisions with which we have First Amendment concerns. On balance, however, we believe it represents an important opportunity to establish a comprehensive and coherent national tobacco policy," according to a statement from Philip Morris.

Dodd today highlighted the more than 1,000 organizations that support the measure and said Congress was finally "on the cusp of winning this fight." He added that growing up with two parents who smoked, and as a smoker once himself, "I know how addictive it can be."

Republican Mike Enzi of Wyoming likewise touched on his family's personal struggle with smoking, calling tobacco "the only consumer product which, when used as directed, kills its customers."

Still, Enzi does not support the bill and says the FDA is too overworked to handle something new. He said he hoped the panel would instead take steps to fund smoking cessation programs and to ensure the safety of tobacco studies and trials.

Enzi said giving the FDA new authority over tobacco "would undermine the long history of the agency protecting and promoting the public health" and said he'd prefer the Centers for Disease Control and Prevention take on the job instead.

Dodd objected, saying the regulation and marketing of consumer products is not the CDC's expertise.

"You talk about limited authority," Enzi responded. "The FDA has one area of authority under this bill that is different than anything else they do."

According to the Centers for Disease Control and Prevention, 440,000 people die prematurely from smoking each year, with an estimated 49,000 of those deaths due to secondhand smoke exposure.

All of this evidence may have helped North Carolina become the first tobacco-producing state to ban smoking in restaurants and workplaces when Gov. Beverly Perdue signed that state law today.