|Congress has voted to give the FDA the authority to regulate tobacco. The problem is the Supreme Court in 2000 denied the FDA that privilege. According to Supreme Court Justice Sandra Day O’Connor in her majority opinion: “Were the FDA to regulate cigarettes and smokeless tobacco, the (federal law) would require the agency to ban them……Congress, however, has foreclosed the removal of tobacco products from the market. The inescapable conclusion is that there is no room for tobacco products within the (federal law’s) regulatory scheme.” 
Did any lawmaker consider that the FDA itself did not want the job of regulating tobacco, and has stated so publicly?
What has changed since then? Nothing. But a burning question remains: Should Congress assign its legislative role to an executive agency?
There are compelling arguments on both sides of this issue. Even though this issue is too complex for most lawmakers to handle by themselves, the almost irresistible urge is to play politics with the smoking issue and not get their hands dirty. This must have better checks and balances. The way both parties have used the EPA to achieve preferred outcomes serves as a perfect example.
It is very clear why anti-smokers wanted the FDA prize; it will serve as a vehicle to advance their agenda without the constraints of the courts or the legislative process.
As stated, the primary reason for the regulation is to stop youth smoking. Haven't we all heard that before? Endless tobacco tax increases at all levels of government state that aim and powerful laws, such as the Synor Amendment, which for over a decade has mandated effective controls by all 50 states to limit youth sales of tobacco or risk loosing federal health funds.
Hello, the job of controlling youth smoking has already been done as effectively as can be done short of a police state. But that will never stop the effective “for the children” cry from those who wish to control us into socialism, and then tell us they are all doing us a big favor by doing so.
According to The New York Times a court challenge will be made by the ACLU and the Association of National Advertiserson the issue of free speech and marketing restrictions. The problem is that both adults and youth share the same world. How do you effectively destroy advertising for one group and save it for another? You don’t. You file suit so the real world will show up and becomes part of the argument.
To top it all off is another federal tobacco tax increase…wait no… a new user fee on tobacco companies to fund the FDA’s activity, which, of course, will be passed on to smokers in higher prices estimated at $235 million next year, and more than doubling in the next decade. Why couldn’t the massive federal excise tax increase that went into effect earlier this year cover this?
Footnotes:  “Excerpts from the Supreme Court,” USA Today, 3-22-00, page 6A;  “FDA Chief warns tobacco regulation may backfire,” AP, 3-15-07;  Synar Amendment: Protecting the Nation's Youth from Nicotine Addiction;  “Tobacco Regulation Is Expected to Face a Free-Speech Challenge,” The New York Times found here; "Congress passes FDA legislation on Tobacco," AP, 6-13-09.
Commentary by Dave Pickrell,
president and founder,
Smokers Fighting Discrimination, Inc. (a not-for-profit organization)