Wednesday, Solicitor General Seth Waxman told the court that even the cigarette makers acknowledge the addictive nature of their product as a stimulant and a sedative. But several Justices, including Sandra Day O'Connor, seemed to be siding with tobacco, voicing strong doubts as to the FDA's right to control the substance. If the FDA is ordered to back off, Congress could step in with its own regulation, but, as Cohen notes, tobacco becomes much a more complicated issue once it hits the Hill. "The tobacco lobbyists are very powerful, and they know how to work the system," Cohen says. "And Congress has been substantially less aggressive in its pursuit of big tobacco than the FDA has." In the meantime, everyone can sit back and enjoy the bizarre wordplay of this case, which has Waxman practically singing the praises of cigarettes, while industry lawyer Richard Cooper argues the decidedly unhealthy qualities of his clients' merchandise. Stay tuned to see what the Justices make of all this; a decision is due out next summer.
Here's a puzzle: What public health scourge is so damaging to users that it can't possibly fall under the jurisdiction of the Food and Drug Administration, which regulates only drugs that are "safe and effective"? The answer, according to industry lawyers, is tobacco. It's now up to the Supreme Court to decide whether tobacco belongs under the regulatory powers of the FDA, as it has since 1996, when the government decided that because tobacco was meant to feed addicts' cravings, it provided a "health benefit" which placed it comfortably in the bureaucratic arms of the agency. "For years, the FDA didn't regulate tobacco, and then it suddenly became more active," says TIME senior writer Adam Cohen. "Agency officials decided they could regulate it after all, because the industry was controlling the amounts and types of addictive materials in cigarettes."