rettes to minors.
46 Since then, the federal government has continued to
strictly regulate tobacco product use by, or exposure to, minors. Recent
court opinions and FDA rules further strengthen tobacco restrictions.
instance, in 2009, the FDA banned cigarettes with fruit and clove flavors in
part because of their appeal to children.
48 It is currently deciding whether to
ban menthol cigarettes for similar reasons.
Polls indicate that adults strongly favor regulating tobacco products
when children are involved.
50 Correspondingly, states and municipalities
have adopted additional laws concerning the use of tobacco products in the
presence of minors. Seven states and one territory (along with several other
cities and counties), for example, ban smoking in cars when children are also present.
51 The growing number of state and city laws limiting where and
when adults can use tobacco products emphasizes how product bans succeed when they are focused on protecting the health of minors, even though
they may fail if applied to adults. Recent calls for bans on the sale and pos-
46. Michael Cummings, Programs and Policies to Discourage the Use of Tobacco
Products, 21 ONCOGENE 7349, 7358-59 (2002).
47. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
48. See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless
Tobacco To Protect Children and Adolescents, 75 Fed. Reg. 13,225, 13,230 (Mar. 19, 2010)
(codified at 21 C.F.R. pt. 1140). The Supreme Court ruled 5-4 that Congress did not grant
FDA the authority to regulate tobacco as a drug. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). Within weeks of this ruling, FDA revoked its final
rule, issued in 1996, that restricted the sale and distribution of cigarettes and smokeless tobacco products to children and adolescents, and that determined that cigarettes and smokeless tobacco products are combination products consisting of a drug (nicotine) and device
components intended to deliver nicotine to the body. In response to this Court decision,
Congress passed the Family Smoking Prevention and Tobacco Control Act, which expressly
allowed FDA to regulate tobacco products. 21 U.S. C. A. § 387a (West, WestlawNext through
Pub. L. No. 113-93 (excluding Pub. L. No. 113-79) approved Apr. 1, 2014). After the Act
became law, FDA issued several requirements designed to curb the appeal of cigarettes and
smokeless tobacco products for minors. See
75 Fed. Reg. at 13,230.
49. Press Release, Food & Drug Admin., FDA Invites Public Input on Menthol in Cigarettes (July 23, 2013), http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements
50. For example, outdoor smoking bans are a growing trend. Outdoor Smoking Bans
Next Battleground in War over Tobacco (poll) (Aug. 8, 2013),
nation/index.ssf/2013/08/ outdoor_smoking_bans_next_batt.html (“‘Secondhand smoke is
harmful. It’s particularly harmful to children,’ said Councilwoman Mary Cheh of the District
of Columbia, one of more than 90 U.S. municipalities or counties considering an outdoor
51. Amy Winterfield, Nat’l Conference of State Legislatures, There’s Renewed Effort to
Integrate the Many Public Health Programs into the Overall Health System (Dec. 1, 2013),
http://www.ncsl.org/research/health/wealth-public-health.aspx. The age of the children protected by the smoking-in-cars ban varies by jurisdiction. Some states prohibit smoking with
children under six years old in the car; other states prohibit smoking with anyone under the
age of thirteen in the vehicle. Broad public support for banning smoking in vehicles with kids
present, 19 NAT’L POLL ON CHILDREN’S HEALTH
1 (2013), http://mottnpch.org/sites/default/