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Tobacco Industry Fights Spiraling Efforts to Snuff It Out : Health: Smoking bans, cigarette taxes and nicotine regulations threaten a once-powerful lobby. But the hostile climate is not new.


WASHINGTON — For the tobacco industry, these are not quite the worst of times. In the middle of the last century, people in some parts of the country could be fined or even hauled off to jail for lighting up in public.

But in his 18 years of defending the industry, Walker Merryman has never seen anything like the current blitzkrieg against cigarettes and people who smoke.

"What's happened in the last month is an extraordinary, probably unprecedented confluence of events," said Merryman, who is vice president of the Tobacco Institute. "There's never been a time when there have been so many things leveled against us."

In recent weeks, many states and cities have enacted laws banning or limiting smoking in public. Several fast-food chains, including McDonald's, Taco Bell and Jack in the Box, have banned smoking.

And even more remarkably, the federal government has eagerly thrown its full force behind the assault. For at least 30 years, even as federal health officials waged an unrelenting campaign against the perils of smoking, Congress, the White House and the regulatory agencies had regarded the tobacco industry as politically untouchable.

No more:

For the first time, the Food and Drug Administration says that it has the authority to regulate cigarettes as drugs and, ultimately, to remove them from the market.

The Department of Labor announced Friday that it will propose a sweeping prohibition of smoking in all workplaces, invoking its authority under occupational health and safety laws. The move is expected to affect more than 6 million job sites, including industrial plants, restaurants, offices and other commercial buildings.

The Defense Department, the nation's largest employer, recently announced that it would prohibit smoking in all of its workplaces worldwide, a move that will affect 3 million people.

To help finance his health care reform bill, President Clinton proposed a cigarette tax increase of 75 cents a pack. The first congressional subcommittee to vote on his plan upped the ante to $1.25.

And Congress is poised to consider legislation, sponsored by Rep. Henry A. Waxman (D-Los Angeles), to ban smoking in all public places.

"Congressman Waxman's bill would have been laughed at only a year or two ago, but today it is considered serious legislation," said Matt Myers, a Washington lawyer who has been involved in anti-smoking activities for many years. "And the very fact that the President proposed a tax increase of 75 cents and the first subcommittee to consider health care reform increased it by an additional 50 cents would never have happened in the past."

Although the anti-smoking steamroller appears to have gathered momentum in recent weeks, most observers agree that it has been several years coming and is the result of a complex set of pressures and events.

For one, President Clinton is friendly to the anti-smoking movement and has tied the habit into his health care reform plan.

For another, a growing body of scientific evidence on the dangers of so-called secondhand smoke has culminated with an influential Environmental Protection Agency report declaring environmental smoke a "Class A carcinogen," meaning that it is an indisputable cause of cancer.

The FDA began looking at the issue seriously in 1991, after petitions from the Coalition on Smoking or Health had languished there for several years. The coalition had asked the agency, under its authority to regulate health claims, to act against cigarette companies that were pitching their brands as low in tar and nicotine, with the implication that they were healthier.

The FDA, going even further than the coalition had asked, concluded that it could regulate cigarettes as it does drugs because nicotine is highly addictive. The FDA believes that gives it the authority to prohibit the sale of tobacco products that contain enough nicotine to cause or satisfy addiction, although it has asked Congress for direction before setting out on this course.

FDA Commissioner David A. Kessler signaled the agency's intentions in a Feb. 25 letter to the coalition. Kessler, testifying before Waxman's subcommittee Friday, blasted the tobacco industry for seeking ways to add nicotine back into low-nicotine cigarettes, a charge that the industry has consistently denied. Kessler also attacked companies for insisting that nicotine is not addictive.

"Even when a smoker has his or her larynx removed, 40% try smoking again," he told Congress. "Most smokers are, in effect, deprived of the choice to stop smoking."

Scott Ballin, chairman of the Coalition on Smoking or Health, said that he doubts the FDA will pull all cigarettes off the marketplace but expects significant regulation.

"I certainly wouldn't discourage a ban, but I don't think it's a practical alternative," he conceded. "Our view is the middle ground. If they remain legal, there is still far more the federal government could be doing to ensure consumer safety."

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