188 



petitions b> the Coalition, the FDA should take action against all cigarene 

 products as 'drugs." 



Petitioners are not embarking into unexplored territoi7 in contending that 

 tobacco products should be regulated as "drugs" under the Food, Drug and 

 Cosmetic Act. In appropnate circumstances, such actions have been brought by 

 the FDA and upheld by various courts. 



For example, the courts have routinely held that if "there is an indication of intent 

 to use the article for the cure or mitigation or treatment or prevention of disease 

 in man, then clearly the subject matter of the libel is to be considered a drug 

 within the meaning of the [Food, Drug and Cosmetic] Act." United States v. 46 

 Cartons More or Less co ntaining Fairfax Cigarettes . 113 F.Supp. 336, 337 (D.N.J. 

 1953). Similarly, in United States v. 354 Bulk Caiton.s: . . Trim Reducing • AID 

 Cigarettes . 178 F.Supp. 847 (D.N.J. 1959), Action on Smoking and Health v. 

 Harris . 655 F.2d 236 D.C. (Cir. 1980), cigarettes were acknowledged to be drugs 

 when they were intended to affect the function and structure of the body of man. 



The Food and Drug Administration's jurisdiction over tobacco products in 

 appropriate circumstances has also been reaffumed by the FDA in testimony 

 before the Congress. In 1972, then FDA Commissioner Charles C. Edwards 

 testified to the Consumer Subcommittee before the Senate Committee on 

 Commerce as follows: 



Cigarettes and other tobacco products would be drugs subject to the 

 Federal Food, Drug and Cosmetic Act if medical claims are made for the 

 product. . . . We have on occasion proceeded against cigarettes 

 recommended for use in controlling appetite or otherwise recommended 

 as a weight reducing aid... However cigarettes recommended for smoking 

 pleasure are beyond the Federal Food, Drug and Cosmetic Act. 

 (Hearings: "Public Health Cigarette Amendments of 1971", Senate 

 Commerce, Science and Transportation Committee, Subcommittee on 

 the Consumer, 92nd Congress, 1972, Serial No 92-82 page 239.) 



