Annals of Health Law
HOW TO REGULATE TOXIC FOODS
of adolescents, Congress later enacted the Family Smoking and Prevention
and Tobacco Control Act (Tobacco Control Act). 139
Congress passed the Tobacco Control Act in 2009140 which goes beyond
labeling and advertising by broadly regulating tobacco products on several
levels. For example, it grants regulatory authority over tobacco products to
the Food and Drug Administration (FDA), authority the FDA lacked prior
to 2010.141 Furthermore, the Tobacco Control Act required the FDA to reissue regulations it had attempted to implement, unsuccessfully, in 1996.
Among the FDA’s regulations now in place are age restrictions mandating
that purchasers of tobacco products be at least eighteen years old. In 1996,
the FDA found that eighty-two percent of adult smokers began smoking
prior to their eighteenth birthday, and half had become regular smokers by
the time they turned eighteen. 142 Thus, key to reducing the incidence of
available at http://www.nejm.org/doi/full/10.1056/NEJMsa003149 (finding that the Master
Settlement Agreement had little impact on magazine advertising).
139. “The government has . . . copious documentation of the practices used by the
industry, oftentimes directly aimed at juveniles and other times seriously effecting them, to
maintain and increase tobacco use and dependency.” Discount Tobacco, supra note 131 at
519. See also Kate E. Wigginton, Will The Supreme Court Knock Tobacco Advertising Out
Of The Park For Good?: The Commercial Speech Implications Of The Family Smoking
Prevention And Tobacco Control Act, 21 SETON HALL J. SPORTS & ENT. L. 533 (2011);
Commonwealth Brands v. U.S., 678 F. Supp. 2d 512 (W.D. Ky. 2010).
140. Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123
Stat. 1776 (2009).
141. See The Tobacco Control Act, 21 U.S. C. A. §§ 387a(a)-(f), 123 Stat. 1788, (2009).
( A decade earlier, the Supreme Court denied the FDA’s attempt to assert jurisdiction over
tobacco products on the theory that nicotine is a drug and the tobacco products are drug
delivery devices. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). The
Court held that Congressional intent precluded FDA jurisdiction. The Court reasoned that if
the FDA had jurisdiction, it would have to classify tobacco products in a class that would bar
them from being marketed because of their health risks. The Court pointed out that
Congress explicitly foreclosed that result under 7 U.S. C.§ 1311(a), which provides, “the
marketing of tobacco constitutes one of the greatest basic industries of the United States, . . .
and stable conditions therein are necessary to the general welfare.”). Id. at 137. For
additional history surrounding the FDA’s role in tobacco regulation, see Matt Shechtman,
Smoking Out Big Tobacco: Can the Family Smoking Prevention and Tobacco Control Act
Equip the FDA to Regulate Tobacco Without Infringing on the First Amendment?, 60
EMORY L. J. 705, 708-711 (2011). Among Congress’ findings under the Tobacco Control
Act is the following: “Neither the Federal Trade Commission nor any other Federal agency
except the Food and Drug Administration possesses the scientific expertise needed to
implement effectively all provisions of the . . . Tobacco Control Act.” Section 2 of the
Tobacco Control Act – Findings, ¶ 45, Pub. L. No. 111-31, 123 Stat. 1776 (2009),
32.htm. See also 21 U.S. C. § 387n (2009) (clarifying FDA jurisdiction and coordination
with the FTC).
142. Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless
Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 44396-01, 44398 (Aug. 28,