316 



73 



"Tht ust to wMch the product Is to be put will determine the 

 category into which It will fall. If it is used only as a 

 food It will come under the definition of food or none other. 

 If it contains nutritive Ingredients but Is sold for drug use 

 only, as shown by labeling and advertising, it will come under 

 the definition of drug but not that of food. If It Is sold to 

 be used both as a food and for the prevention or treatment of 

 disease it would satisfy both definitions and be subject to 

 the substantive requirements of both. The manufacturer of the 

 article, through his representations in connection with Its 

 sale can determine the use to which the article ls to be put." 

 Senate Report 74-361, 74*h Congress 1st Session, 1935 p. 4. 

 See also, U.S. v Article— -Sudden Change. 409 F. 2d 734, 739. 

 (1969) ^ 



Both the Congress and the Courts have clearly spoken and the tobacco 

 Industry cannot be heard to claim that the manufacturing, advertising 

 promotion and sale of low tar and low nicotine cigarettes Is purely for 

 sacking pleasure. 



Low tar and low nicotine cigarettes clearly fit within the parameters of 

 what both the Congress and the courts Intended when they defined drugs. 

 Tobacco companies manufacture, advertise, promote, and sell low tar and, 

 nicotine cigarettes with the obvious Intention of playing on the public's 

 perception that use of these products will mitigate and prevent the onset 

 of disease associated with smoking. 



What the Ftdaral District Court said in Fairfax some thirty years ago, in 

 applying the provisions the Food, Drug, and Cosmetic Act, remains fully 

 applicable today and should be applied with the full force of the law 

 against low tar and low nicotine cigarettes. The Court in Fairfax 

 observed: 



