23 Aug 1996 Is President Clinton’s Attack on Tobacco an Attack on the Constitution?

For Immediate Release: August 23, 1996
Conact: Chad Cowan
(202) 507-6398

“President Clinton’s decision to accept most of the Food and Drug Administration’s recommended tobacco regulations is disappointing, ” said Amy Moritz, President of The National Center for Public Policy Research. “In a time when many Americans are concerned that the federal government has grown too powerful, the President has chosen to dramatically extend federal powers. There are many ways to protect children from tobacco without trampling on the U.S. Constitution. We wish the President had limited himself to those methods.”

The National Center for Public Policy Research in June 1996 released a study of these regulations (National Policy Analysis #147, “New FDA Tobacco Regulations Raise Constitutional and Economic Questions”), concluding that several of them are in sharp conflict with the U.S. Constitution. These include:

The FDA’s efforts to ban all outdoor tobacco advertisements within 1,000 feet of any playground, elementary or secondary schools [897.30(b)], and limiting of all other advertising to black text on a white background [897.32(a)] is sought under the authority of the Commerce Clause, but in the recent Supreme Court case United States v. Lopez, (April 26, 1995), the U.S. government made similar arguments regarding the Gun-Free School Zones Act of 1990 (which banned guns within 1,000 feet of any school). The U.S. Supreme Court did not accept the government’s contention in Lopez and ruled the Gun-Free School Zones Act unconstitutional.

The new regulations seek to ensure that no one under the age of 18 may purchase cigarettes or smokeless tobacco [897.14(b)]. This is an effort to nationalize age restricts already in place in all 50 states. When the Congressional Research Service was asked to look into the question of whether or not the federal government has this power it cautioned that such a provision could exceed the federal government’s authority and would most likely be found unconstitutional. Without attaching such a restriction to federal benefits to states, the federal government has been historically unable to impose regulations essentially overriding state authority.

The new regulations contain provisions requiring tobacco manufacturers to inspect retail stores carrying their products or other tobacco “marketing products,” and to remove from those retail stores any advertisements, self service displays, or other non-tobacco products deemed to be in non-compliance with the new regulations [897.12(a)]. This provision essentially establishes tobacco manufacturers as law enforcement agents for the federal governnment. The provision makes manufacturers liable for retailers’ non-compliance. This provision gives manufacturers incentive to inspect and confiscate retailers’ non-compliant property, a practice which could violate the Fourth and Fifth Amendments of the Constitution. The Fourth Amendment clearly stipulates that all searches and seizures must be warranted. The FDA does not have the authority to issue search and seizure warrants to tobacco manufacturers to enforce FDA restrictions. If the Fourth Amendment was disregarded by the courts, the confiscation of property by tobacco manufacturers still seemingly violates the Due Process Clause of the Fifth Amendment, which explicitly provides that no person may be deprived of their property without the due process of law.

The National Center’s study also questions possible perverse incentives in the President’s new regulations. Among them is the fact that classifying nicotine as a drug and tobacco as a “drug delivery device” [897.32(b)] creates a new federally-recognized class of “drug” addict. As a result, smokers claiming to be victims of nicotine addiction may soon be able to claim a new, legally-protected status. The Americans with Disabilities Act (ADA) grants legal protection from discrimination to, among other persons, “drug addicts and alcoholics” [H.R. Rep. No. 485, 101st Cong., 2d Sess. 51 (1990)]. According to Mark Pugsley, writing in the Duke Law Journal (v. 43, Mar. 1994, p. 1104), “The legislative history of the ADA lists a variety of conditions that qualify as physical or mental impairments….[including] cerebral palsy, cancer, HIV infection, learning disabilities, drug addiction, and alcoholism.” Claims by the federal government that nicotine is a drug capable of causing psychological or physiological addiction, coupled with a smoker’s claim that he/she is chemically addicted to the nicotine in tobacco, could place such a person under the protection of the ADA.

The National Center for Public Policy Research’s study of these tobacco regulations is available by visiting The National Center’s web site at https://nationalcenter.org.

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