Regulate This

Regulate This

Regulate This

A summary of what's in the major U.S. newspapers.
March 22 2000 10:14 AM

Regulate This

Everybody leads with yesterday's 5-to-4 Supreme Court decision ruling that the Food and Drug Administration is not legally empowered to regulate tobacco products, which is viewed by all the papers as a major blow to the Clinton administration's attempt to make progress against one of the nation's leading health problems. The Wall Street Journal puts the story atop its front-page news box.

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The basic foundation of the decision is that, as the New York Times helpfully states, if Congress speaks clearly on a question of agency jurisdiction, it has the last word. Hence the relevance of the court noting that Congress has passed laws addressing smoking and health, while the FDA had long eschewed regulating tobacco. The Washington Post says the court's vote was along ideological lines, with the most conservative members voting against the FDA's tobacco role. The NYT says, however, that there was "nothing overtly ideological" about the case's "essentially historical question." The Los Angeles Times is perhaps the clearest about what the court ruled: "Congress never intended tobacco products to be regulated as drugs." And also the clearest about what the ruling ruled out: the possibility that the FDA "could have ordered the industry to reduce the nicotine in its cigarettes. Or it could have banned them from the market entirely."

Most of the papers capture the particular perversity of a tobacco industry argument that the court's majority found compelling: The FDA was set up to ensure that products it regulates are safe. But cigarettes aren't safe. Therefore, the FDA can't regulate them. There are questions about this argument that the coverage doesn't address: If "safe" here means "absolutely safe" then since no product is without risk, this argument would prove that the FDA can't regulate anything. On the other hand, if ensuring safety means working to make something that's not absolutely safe safer, then it's not at all clear why a cigarette, like meat or aspirin, isn't something the safety of which can be ensured. Indeed, given all the weight put on tobacco not being a drug by the court, it's glaring that the coverage doesn't point out that the ruling doesn't seem to provide a definition of "drug" that would support this. Especially since nicotine seems to fit the major characteristics of drugs.

USA Today notes that the ruling means the scrapping of all federal penalties on retailers selling tobacco to minors and the NYT says the FDA immediately began an orderly shutdown of its nationwide program helping states monitor compliance with their laws barring sales to minors. The LAT and the WP report that within hours of the ruling, congressional Democrats announced plans to introduce a bill establishing broader FDA authority. But the LAT says such an effort is unlikely to succeed in an election year.

Everybody fronts the FDA's announcement yesterday that it was recalling from the market Rezulin, a diabetes drug linked to liver failure and 63 deaths. The LAT first broke the story of the drug's hazards, a fact not noted by the other papers in their reporting today. There's an important reason this is bad that has nothing to do with journalistic bragging rights. It would be easy to read the stories today (other than the LAT's) and come away with the idea that this was a case where the FDA's system worked, whereas it was actually the press that made the crucial difference. Indeed, the LAT's investigation detailed earlier FDA inaction in the face of evidence of the drug's dangers.

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The WP fronts the agreement by the Adam's Mark chain to pay an $8 million settlement in the largest race discrimination case ever brought by the Justice Department against a hotel. The head of the DOJ's civil rights division tells the paper he has a lot of other investigations underway involving hotels.

The NYT and USAT front a Miami federal judge's refusal to block the INS's ruling that Elián González should be returned to his father in Cuba. The boy's Miami relatives immediately filed a notice of their intent to appeal.

"Today's Papers" doesn't know what it means, but couldn't help but notice that today's stories about the arrest of Jamil Al-Amin, known in the 1960s as H. Rap Brown, mention for the first time that the two deputies Al-Amin is accused of shooting, one fatally, were black. Could this fact have possibly escaped the papers until now?

The WSJ and NYT report that a former GM executive is setting up a business-to-business Internet site designed to help parts buyers find suppliers that are minority-owned. This would, the stories explain, help companies meet their minority-procurement goals. One question that the stories don't address: Is there anything in the law that would prevent a site that identifies, without preaching any theories about race, white-owned providers of a specified part or service?

USAT goes long regarding research coming out today in the Journal of the American Medical Association on the long-term downsizing trend among Miss America winners. Sometime in the mid-1970s, says the research, the winner's body-mass-index fell below the level regarded as unhealthy by the World Health Organization. And has rarely returned--according to the figures on the figures accompanying the story, in the past quarter century only one winner--1998's--has a BMI considered healthy.

The WP's "Reliable Source" reports that Gary Bauer has been submitted for consideration for an Emmy nomination by Showtime for his guest shot last year on Al Franken's sitcom Lateline.