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Tobacco Regulation Review, V. 4, No. 1, May 2005

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Tobacco Regulation Review, V. 4, No. 1, May 2005 Tobacco Regulation Review University of Maryland School of Law Volume 4, Issue 1 Legal Resource Center for Tobacco Regulation, Litigation & Advocacy May 2005 WWW.LAW.UMARYLAND.EDU/SPECIALTY/TOBACCO Congress Considers FDA Regulation of From the Director Tobacco Products As state and local goverments Public health advocates have of tobacco would pass as well. continue to make strides in reducing campaigned for federal legislation Despite Herculean efforts by advo- youth access to tobacco products granting the Food and Drug Adminis- cates and key legislators, the tax and and in protecting workers and the tration authority to regulate tobacco buyout bills passed without the FDA public from secondhand smoke, products since the Supreme Court provisions. In response, a free- advocates have long known that ruled in 2000 that the agency lacked standing bill providing FDA regulation federal action is necessary for such authority in FDA v. Brown & of tobacco was introduced. That bill regulation of the manufacturing and Williamson Tobacco Corp. 529 U.S. passed the Senate (78-15) but died in marketing of tobacco products. A 120 (2000). A close call on legislative the House without a vote. glimmer of hope from last year’s efforts in 2004 inspired advocates to Congressional session has given Like the 2004 version, the 2005 FDA return to Congress this year with rise to optimism about this year’s bills create a new standard by which clear, comprehensive and bipartisan bills that grant the FDA authority to the federal agency is to evaluate bills giving the FDA that authority. regulate tobacco products. Read tobacco products. Currently the FDA The DeWine-Kennedy bill (S. 666) and about those efforts in this issue of may approve a drug or device if there the Davis-Waxman bill (H.R. 1376) Tobacco Regulation Review. is a reasonable assurance that a were introduced March 17, 2005 with product is “safe and effective.” As Success at all levels of govern- the support of the Campaign for there is no safe and effective tobacco ment depends on creative and bright Tobacco-Free Kids, American Cancer product, the bills provide that the advocates with legal training. Society, American Heart Association, agency would evaluate whether an Highlighted in this issue are the and American Lung Association. action regarding a tobacco product many law students who have During the 2004 Congressional would protect the public health. In already contributed to tobacco session, the FDA regulation bill was addition, the bills would grant the FDA control and who epitomize a new merged in the Senate with an impor- authority to: generation that will continue to tant corporate tax bill and in the protect the public health. We are • Restrict tobacco advertising; House with a bill that would provide proud to play a role in educatng and • Require disclosure of all ingredients $10 billion as a “buyout” to tobacco inspiring these future laywers. and additives in tobacco products; growers. Both the tax bill and the • Prohibit candy and fruit flavored Kathleen Hoke Dachille buyout bill were destined for passage tobacco products; and tobacco control and public health Center Director • Alter health warnings on cigarettes advocates were optimistic that as an add-on to these bills, FDA regulation Continued on page 3 Page 2 Tobacco Regulation Review Tobacco Regulation Review is published twice a year by the Legal Resource Center for Tobacco InThis Issue Regulation, Litigation & Advocacy Congress Considers FDA Regulation of Tobacco Products ................... 1 at the • Maryland Happenings University of Maryland School Charles County Implements Smoking Restriction in Public Parks ......... 4 of Law Montgomery County Councilman Reports on Economics One Year 500 West Baltimore Street After Ban........................................................................................... 4 Baltimore, MD 21201 Prince George’s County Passes Ban on Single Cigarette Sales ............. 5 410/706-1129 (office) • Inside Center 410/706-1128 (fax) Law Students Tackle Emerging Issues in Tobacco Control.................... 5 STAFF Dynamic Guest Speakers Add Dimension to the Tobacco and The Law Seminar .............................................................................. 6 Kathleen Hoke Dachille, J.D. Student Awards and Publications .......................................................... 7 Director • National News Michael F. Strande, J.D. Boston Requires License Suspension for Stores That Repeatedly Managing Attorney Sell Cigarettes to Kids ...................................................................... 8 Kristine Callahan, J.D. Flavored Tobacco Products— The New Youth Smoking Issue .............. 9 Research Fellow Harvard School of Public Health Studies Fire-Safe Cigarettes ............. 10 Michael J. Cuneo, M.A. Restaurant and Tavern Association Loses Challenge to NY Administrative Assistant / Editor Smoking Ban .................................................................................. 11 Smoke Free Laws Proliferate............................................................... 13 AFFILIATED FACULTY Secondhand Smoke Suit Drifts Toward Court ...................................... 14 Diane E. Hoffmann, J.D., M.S. The Center Welcomes Sophia Rose Strande ....................................... 15 Associate Dean & Director, Kristine Callahan Joins Center Staff as Research Fellow ..................... 15 Law and Health Care Program Robert V. Percival, J.D. Director, Environmental Law Program Allyn Taylor, J.D., L.L.M, J.S.D. Adjunct Professor of Law David Mann, M.D., Ph.D. Instructor, If you would like to to subscribe to the Tobacco Regulation Review School of Medicine, Department of please send an email to [email protected]. Please include Epidemiology your mailing address. © 2005 University of Maryland School of Law Volume 4, Issue 1 Page 3 Continued from page 1 company’s internal research on the services, and other regulatory, eco- health, behavioral and physiologic nomic and social strategies to improve and smokeless tobacco and in effect of their products. The agency public health by reducing tobacco use. advertisements; may also inquire about company For more information about the 2005 • Prohibit the use of “light,” “mild,” or research on methods to reduce the bills or to track the legislation, visit “low-tar” because those terms mislead harm caused by the regulated prod- www.tobaccofreekids.org/reports/fda. consumers into believing that the ucts. Tobacco Regulation Review will also marketed product is somehow safer, update readers on the progress of the Although the bills allow the FDA to or less harmful, than a regular ciga- bills this session. require product modifications, such as rette; and the reduction of nicotine, Congress • Prohibit tobacco companies from retains exclusive power to require the marketing “modified risk” products elimination of nicotine or to ban the unless the FDA approves of the sale of cigarettes, cigars or smoke- product and the marketing plan. less tobacco. In contrast to an The bills revive the 1996 regulations existing federal law with a broad adopted by the FDA designed to preemption clause, the bills grant reduce illegal tobacco sales to minors state and local governments by, for example, some authority over to- requiring that a sales IN CONTRAST TO AN bacco marketing. Impor- clerk examine EXISTING FEDERAL LAW tantly, the bills require identification of any WITH A BROAD PREEMP- adequate finding for the customer appearing TION CLAUSE, THE BILLS FDA to fulfill the responsi- to be 27 or younger. GRANT STATE AND LOCAL bilities provided by the The broad advertising GOVERNMENTS SOME legislation. restrictions, both in- AUTHORITY OVER TOBACCO MARKETING. store and by billboard FDA regulation of tobacco near schools, are also revived. FDA is considered an essential element in lawyers must examine the 2000 a comprehensive public health plan to Supreme Court decision, however, to reduce tobacco-related illness and ensure that the new regulations death. Effective federal regulation comply with the First Amendment should result in diminished youth standards expressed in the Brown & access to tobacco, decreases in Williamson decision. adult smoking prevalence and a better-educated consumer. Such In addition to the ingredient disclo- regulation would complement and sure provisions, the bills would allow extend the effectiveness of smoke- the FDA to require that tobacco free workplace laws, youth sales companies disclose to the agency the enforcement programs, cessation Page 4 Tobacco Regulation Review Maryland Happenings Charles County Montgomery County Councilman Reports Implements Smoking on Economics One Year After Ban Restriction in Public Parks On February 22, 2005, Councilman saw full service restaurant applica- Phil Andrews, lead sponsor of Mont- tions increase from 80 to 87 over the gomery County’s smoking ban, held a period in question. This 8.7 percent Beginning on March 1, 2005, the air press conference to discuss the increase included only those restau- and grounds of Charles County’s impact the ban has had on restau- rants that could have been affected by public parks became cleaner thanks rants and bars. The press conference the ban, not fast food establishments. to new smoking restrictions imple- was held just before the General mented by the County’s Department While legislation prohibiting smoking Assembly was scheduled to hear of Public Facilities. The new policy in public places is firmly supported debate on a proposed statewide
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