Food and Drug Administration Takes on the First, Fourth and Fifth Amendments, by Nate Stewart

Backed by the Clinton Administration, the Food and Drug Administration is waging its latest crusade against tobacco. The FDA seeks to finger nicotine as a drug, cigarettes a drug delivery device, and, despite the recent increase in illegal drug use by teens, tobacco companies as drug lords number one. In previous battles in the tobacco wars, the actual tobacco product, emissions of the product, and users of the product were sought as villainous deviants, but now, local neighborhood zoning rights, advertisers, retail store owners and, seemingly, the Constitution itself have made the FDA’s Most Wanted.

The FDA’s recent long-armed proposal would impose a plethora of unconstitutional provisions. Among other things, the proposal would bar outright any tobacco advertisements within 1,000 feet of any school or playground. The ban includes signs, clocks, self-service displays, bus advertising, and anything else that might hint of falling under the penumbra of “advertising.” Never mind the First Amendment. Never mind the disadvantage caused to store owners unwittingly located near a playground. Never mind that neither the Founders nor the current Congress believe that what essentially are local zoning decisions should be dictated from Washington.

The FDA would have us believe that federal agencies can regulate billboard advertising in local neighborhoods through the commerce clause — the part of the Constitution that gives the federal government the right to regulate interstate commerce. Since schools are engaged in training children to participate in U.S. commerce, the FDA reasons, the federal government should be able to regulate anything near a school. To the FDA, it’s elementary.

Not so fast. The Supreme Court recently ruled against another federal statute based on this reasoning. In United States v. Lopez, the Supreme Court in 1995 struck down the federal government’s claim that the 1,000 foot perimeter of a school ground may be federally regulated (in the Lopez case, to ban guns) under the theory that school zones engage in commerce. In the opinion of the Court, Chief Justice Rehnquist argued that, “Under the theories that the government presents… it is difficult to perceive any limitation on federal power… we [would be] hard-pressed to posit any activity by any individual that Congress is without power to regulate.”

Under Lopez reasoning, then, the FDA’s tobacco proposal is unconstitutional. It is just as well. If the FDA’s reasoning were to prevail, what other “advertisements” might our government one day condemn as unhealthy for our children’s viewing? Could a billboard advertisement for a church or synagogue near a public school — which students are, after all, compelled to attend — not conceivably be said to violate the so-called separation of church and state?

When it comes to the FDA, Justice Rehnquist’s diagnosis of the federal government’s tendency to expand its power is remarkably germane. Not only do the new FDA restrictions ban the aforementioned signs, clocks, posters, and other non-tobacco products, but the FDA seeks to make cigarette manufacturers liable for any violations of its tobacco regulations by retail store owners.

The FDA says it can make tobacco companies liable for the actions of retail store owners because the FDA seeks to deputize tobacco companies as de facto law enforcement agents. The FDA proposes to empower tobacco companies to inspect retail stores for violations of the tobacco regulations.

Evidently the FDA forgot about the Fourth and Fifth Amendments. According to the Constitution, a person’s property may be taken only after a warrant is obtained for its seizure and permanently held only after due process of law. Tobacco companies don’t have the Constitutional power to inspect or confiscate the property of retail stores. Even if its motives are pure, the FDA cannot compel tobacco companies to violate the basic rights of other Americans.

There are, of course, other titillating queries one might pose to the FDA. Such as, why do the new regulations impose a federal age restriction of 18 on tobacco purchases when all fifty states already currently enforce the identical age requirement? Why should the federal government require all that all tobacco be hidden behind retail counters when a consumer must be 18 to purchase the product anyway?

Why label nicotine a drug under law when the provisions of the Americans for Disabilities Act can easily be construed to give “drug addicts” like smokers employment protection rights not available to non-smokers? Wouldn’t this be counterproductive, if the FDA’s intent is to discourage smoking? And should the FDA take on the daunting new responsibility of regulating the massive tobacco industry when a 1995 General Accounting Office’s report found that the FDA now takes twice as long to approve new medical devices as it did in 1989? Wouldn’t more lives be saved by speeding the approval of new drugs and medical devices than by banning some billboards and products like hats and clocks and T-shirts bearing the name of tobacco products?

And, if nicotine is as addictive as the FDA claims, how did 43.4 million Americans manage to quit smoking?

These are questions and concerns that one hopes the FDA and Congress will consider before Lopez and the First, Fourth, and Fifth Amendments go up in smoke.

Nate Stewart is Staff Writer of The National Center for Public Policy Research, a Washington, D.C. think tank.

The National Center for Public Policy Research is a communications and research foundation supportive of a strong national defense and dedicated to providing free market solutions to today’s public policy problems. We believe that the principles of a free market, individual liberty and personal responsibility provide the greatest hope for meeting the challenges facing America in the 21st century.