308 



- 65 



dgaretteSi advertised and promoted as containing varying amounts of tar 

 and nicotine Is done with the Intent of affecting the structure of the 

 body of man. Thus, for reasons set out 1n Statement of Factual Grounds 

 and for reasons to be presented In this section the FOA should take 

 action against these products as "drugs." 



1. The Food and Drug AdBlnistratlon h«s asserted Jurisdiction over tobacco 

 products where claiK related to tho trei.tKi.t. . .■'J.j.c. ok 

 prevention of disease have been iwde. and otKi^v ur ttt:) acco py?Hr ict has 

 been shown to be Intended to affect the stnjctu. r ; T-'-yzVruof t|« 

 body . 



Petitioners are not embarking Into unexplored territories In contending 

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

 and Cosmetic Act. In appropriate circumstances, such actions have been 

 brought by the FOA and upheld by various courts. 



For example the courts have 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 sen, then clearly the subject matter of the libel is to be 

 considered « drug within the meaning of the (Food, Drug, and Cosmetic) 

 Act.' U.S. V 46 Cartons More or Less containing Fairfax Cigarettes 113 F 

 Supp. 336, 337 (O.N.J. 1953). Similarly, In U.S. v 354 Bulk Cartons; . . 

 Trim Reducing - AID Cigarettes 178 F Supp. 847 (D.N.J. 1959), the court 

 held that cigarettes "promoted as weight reducing cigarettes and which 

 contained combustible tartadc acid, constituted an article intended to 



