198 



C. FTC V. LIGG ETT IS CONSISTENT WTTH THE LEGAL ARGL^rFNTS 

 ■NLVDE BY PFTTTTO N-ERS TO CLASSIFY A LL CIGARETTES AS DRt GS 

 LTsDER SEC TION 201 (g)(1)(C) OF THE FOOD. DRUG. ANT) 

 COSMETIC ACT 



In Liggen the court found that cigarettes which claimed to be less "imtating" than 



other cigarenes were not deemed to be drugs under section section 201(g)(1)(C). 



The decision in the case, the statutory definition that the court was concerned 



with (clause (C)), and the rationale and conclusions of the court must be put mto 



perspective to understand the important distinctions between what the court said 



in 1952, and how it is applied to today's scientific and medical knowledge about 



tobacco products. This includes how the tobacco industry has deliberately and 



intentionally embarked on research, product development and manipulation, and 



advertising campaigns that now clearly establish that they are selling products 



"intended to affect the structure and function of the body. " When one reviews this 



overall picture including the case law, it is difficult to arrive at any conclusion 



other than that the tobacco industry is selling "drugs. " The decision in the Liggett 



case is completely consistent with and supports the premises upon which this 



petition is being filed. The court in Liggett was correct when it said: 



As times and conditions change it is fitting that an 

 administrative agency, before resorting to the legislature, 

 seek to invoke new means of coping with still unresolved 

 problems, but in its zeal the agency must not exceed the 

 bounds of its statute. 



It is clear to even the casual observer that the cigarette industry and its 

 manufacturing processes and marketing practices have continued to dramatically 

 change and that the FDA should invoke "new means of coping with still 

 unresolved problems. '" In spite of its broad statutory authorities, the FDA has, 

 however, been anything but over zealous in the use of its authorities to regulate 

 tobacco products when they are sold as drugs. Its unwillingness to act has resulted 



