FDA has concluded that cigarettes and smokeless tobacco are delivery
devices for nicotine, a drug that causes addiction and other significant
pharmacological effects. The Federal Food, Drug, and Cosmetic Act provides
that a product is a drug or device if it is an article (other than food) "intended to
affect the structure or any function of the body."
Nicotine in cigarettes and smokeless tobacco does "affect the structure or any
function of the body" because:
- -- nicotine in these products causes and sustains addiction;
-- nicotine in these products causes other mood-altering effects,
including tranquilization and stimulation;
-- nicotine in these products controls body weight.
Manufacturers of cigarettes and smokeless tobacco "intend" these effects
because:
- -- the addictive and pharmacological effects are so widely known and
accepted, a reasonable manufacturer can foresee the products will be
used by consumers for these effects;
-- consumers use these products predominantly for pharmacological
purposes;
-- manufacturers know that nicotine in their products causes
pharmacological effects and that consumers use their products
primarily to obtain these effects;
-- manufacturers of these products design the products to provide
consumers with a pharmacologically active dose of nicotine; and
-- an inevitable consequence of the design of these products to provide
consumers with a pharmacologically active dose of nicotine is to
sustain consumers' addiction to nicotine.
RULE PROTECTS APPROPRIATE COMMERCIAL SPEECH
The U.S. Supreme Court has upheld restrictions on commercial speech if
certain standards are met. Given that selling cigarettes and smokeless tobacco
to children under 18 is already illegal in every state, the rule is aimed at regulating
commercial speech to ensure that an illegal activity is not promoted. Furthermore,
the rule is narrowly tailored to meet the tests established by the U.S. Supreme
Court in its opinions on commercial speech, including 44 Liquormart, Inc. v.
Rhode Island.
- -- Protecting the health of children under 18 is a substantial
government interest justifying restrictions on tobacco advertising that
appeals to children;
-- Advertising and promotion have been shown to play a material role in children beginning and continuing to use tobacco products, and
therefore the regulations directly advance the government's interest;
and
-- Permitting unrestricted advertising in publications primarily read
by adults and permitting companies to sponsor events in the corporate
name -- instead of the brand identifications so appealing to young
people -- are examples of how the rule is narrowly tailored to advance
the government's interest.
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