Move to Regulate Tobacco Meets Opposition : Politics: Democrats fear FDA jurisdiction over smoking products could cost the party House seats and electoral votes in ’96.

Fearing political damage in the South, congressional Democrats from tobacco states are urging the White House to stop the Food and Drug Administration from regulating tobacco products, arguing that the move could cost the party seats in the House and electoral votes in the 1996 election.

The lawmakers have pleaded their case to ranking members of the White House staff, including Chief of Staff Leon E. Panetta. “Everyone that could be met with except the President has been met with,” said a congressional source who spoke only on condition of anonymity.

For their part, anti-smoking groups are trying to exert opposing pressure in what has become a nervous, politically charged waiting game.

In a letter last week to FDA Commissioner David A. Kessler, Action on Smoking and Health, a Washington-based group, threatened to take legal action if the FDA fails within 60 days to assert jurisdiction, arguing that the agency has enough evidence to regulate tobacco products as drugs. Kessler announced last year that the agency was considering such a step.

But, hoping to fend off the FDA, the two biggest cigarette makers--Philip Morris and R.J. Reynolds--have been touting programs of their own to discourage smoking by young people.

Philip Morris on Tuesday held a news conference to launch Action Against Access, a program the company said is aimed at making it “as difficult as possible for minors to purchase cigarettes.” Among other things, Philip Morris said it will stop giving free cigarette samples, stop distributing cigarettes by mail and work with retailers to increase compliance with bans on sales to minors.

Supporters of regulatory action by the FDA are trying to convince the White House that federal initiatives to protect youths from nicotine dependence would be politically popular even in the South.

Describing the fight as a “struggle for Clinton’s soul on tobacco,” anti-smoking activist Michael Pertschuk, the former head of the Federal Trade Commission, said he does not believe Clinton can gain political advantage by appeasing tobacco interests.

“Protecting children from tobacco is a winning issue,” Pertschuk said. At the same time, he argued, “nothing is going to convince tobacco-oriented voters that Bill Clinton is going to be better for them than Phil Gramm and Bob Dole.”

But there is no doubt that action by the FDA would serve as political baggage for Democrats in tobacco farming and manufacturing districts.

At a meeting earlier this year with about 25 lawmakers from tobacco states, “there were a lot of unkind things said to Mr. Panetta about what this [FDA regulation of tobacco] will do to Democratic prospects in the House,” one source said.

Freshman Rep. Ed Whitfield of Kentucky, the first Republican elected from his district since the Civil War, said Clinton’s plan last year to raise the cigarette excise tax to pay for health care reform--along with Rep. Henry Waxman’s (D-Los Angeles) assaults on cigarette makers--were key factors in his victory.

It was not that “Ed Whitfield was such a wonderful, magnificent candidate,” Whitfield said. “A lot of it was really the tobacco issue.”

White House officials have had little to say. “People have expressed their concerns about what Kessler may or may not do,” a White House official acknowledged. “We’ve never shied away from taking tough positions on this stuff, but nothing has been decided at this point.”

Some observers believe that any action by the FDA would come this year, instead of in the heat of the ’96 campaign. But Mitch Zeller, Kessler’s special assistant for policy, declined to comment Tuesday on when the agency might act.

“We are very seriously pursuing these issues,” Zeller said, “but we can’t give you a time frame.”

For two decades off and on, anti-smoking groups had unsuccessfully urged the FDA to regulate tobacco. Then in February of last year, Kessler announced that the agency was investigating its legal right to do so.

Federal law gives the agency authority to regulate drugs, which are defined as non-food substances intended to affect the structure or function of the body or brain. Intent is the key; because nicotine occurs naturally in the tobacco leaf, the agency had previously been concluding that regulators lacked proof of intent by manufacturers to hook their customers.

But in announcing the investigation, Kessler said there was increasing evidence that tobacco companies had manipulated nicotine levels to build and maintain their markets--a charge the companies have vigorously denied but that, if proven, could pave the way for federal regulation.

In a major address in March in which he called nicotine addiction “a pediatric disease,” Kessler hinted that regulatory actions might include curbs on youth-oriented tobacco advertising and a crackdown on illegal sales to minors through vending machines and retail establishments.

In its own attempt to curb youth smoking, Reynolds has been running full-page newspaper ads on the company’s efforts to persuade retailers to observe minimum-age laws.

In their campaign to put the wraps on FDA regulation, tobacco supporters are citing a 1980 ruling in which the U.S. Circuit Court of Appeals for Washington upheld the FDA’s refusal three years earlier to regulate tobacco products. Since White House Counsel Abner J. Mikva was a member of the court at that time, some industry supporters are claiming the opinion puts the top White House lawyer on record as believing that the FDA lacks authority over tobacco.

Those favoring FDA action, however, claim the opinion supports their position, because it says federal agencies should have broad latitude in weighing evidence and carrying out their laws.