203 



E. FDAS FAn.I-RE TO TAKE ACTION AGAINST TOBACCO PRODI CTS IS 

 ■ARBITRARY AND CAPRICIQl S 



The FDA's failure to regulate alJ tobacco products under the drug provisions of 

 the Food, Drug, and Cosmetic Act is in the view of the Coalition clearly arbitrary 

 and capncious and not in accordance with the law. (See for example. National 

 Nutrition Foods Association v. Mathews . 557F.2d325, (333,336 2d Cir.(197T).) 

 Petitioners have clearly shown that the tobacco industry long ago abandoned the 

 premise that cigarenes are sold for smoking pleasure only and that they have 

 consciously and consistently conducted research and developed marketing 

 strategies that clearly fall within the legal parameters of Section 201. We have 

 shown under Section D that the FDA has in fact proceeded against a myriad of 

 other products which have been marketed in a fashion similar to that in which 

 today's cigarettes are developed, marketed, and sold. 



The double standard, which literally affects the health of millions of Americans 

 each and every year, must end. All nicotine contairiing produas. and all cigarette 

 products which are marketed with an intent to affect function or structure of the 

 body or which are intended to mitigate or prevent disease, must be consistently 

 regulated as required by law. 



