197 



As the Agency is aware, the Coalition on Smoking OR Health has already tiled 

 petitions which have relied pnmanly on Section 201(g)(1)(B) and have shown that 

 the marketing of cigarenes using low tar and low nicotine labeling and advertising 

 have no other purpose than to promote cigarettes as safer and less addictive. We 

 will also present evidence in the Factual Statement Section of this petition that 

 clearly shows that the public's perception (smokers and nonsmokers alike) is that 

 low tar and low nicotine cigarenes are marketed as safer and less addictive, and 

 that the industry has designed today's cigarettes to affect functions and structure 

 of the body. 



In ASH V. Harris the court specifically noted that in deciding whether a cigarette 

 was to be classified as a "dnig" under Section 201(g)(1)(C) (intended to affect 

 function or structure of the body), the case law to be consulted was FTC v. Liggett 

 & Mvers Tobacco Co. . decided in 1952. As the court specifically noted, ''...the 

 court's remarks in FTC v. Liggett & Mvers T obacco Co. seem as relevant today as 

 they were in 1952.'' 



The petitioners therefore have given Ligsfll particular attention not only because 

 of its legal significance in ASH v. Harris but because it is also the case most often 

 cited by the tobacco industry for advocating that the FDA has no jurisdiction over 

 cigarette products. A review of this case will cleariy show that the facts of the 

 case and the court's rationale are both distinguishable and legally consistent with 

 the basis of this petition. 



