Is tobacco a drug? Administrative agencies as common law courts

Professor Cass Sunstein argues that the FDA has the authority to regulate tobacco products. He considers the text of the Federal Food, Drug, and Cosmetic Act, which supports the FDA assertion, and the context of its enactment, which argues against the FDA. He resolves the tension between text and context in favor of FDA jurisdiction by turning to the emerging role of administrative agencies. In modern government, he contends, administrative agencies have become America's common law courts, with the power to adapt statutory regimes to new facts and new values when the underlying statute is ambiguous. Professor Sunstein's Article, like the other pieces in this volume, was written after the United States District Court for the Middle District of North Carolina decided Coyne Beahm v. FDA, but before a three judge panel of the United States Court of Appeals for the Fourth Circuit reversed that decision in Brown & Williamson Tobacco Corp. v. FDA. In Coyne Beahm, the District Court held that the Federal Food, Drug, and Cosmetic Act authorized the FDA to regulate tobacco products, but not tobacco advertising. The Fourth Circuit rejected the District Court's jurisdictional ruling and invalidated the FDA's regulations in their entirety. The Clinton Administration has since requested an en banc rehearing before the Fourth Circuit.     

A mountain or a molehill: is the illicit trade in cigarettes undermining tobacco control policy in South Africa?

This study estimates the size of the market for illicit cigarettes in South Africa between 1997 and 2007 in order to consider the impact of the illicit trade in cigarettes on the effectiveness of tobacco control policies. Estimates of the illicit market are made using data on smoking prevalence and simulations of smoking intensity. The paper shows that the size of the illicit market to have grown substantially from 1997 until peaking in 2000 between 9.4% and 11.5% of the total market. The most recent estimate for 2007 suggests that the illicit market occupied between 7.0% and 11.2% of the total market. These estimates are significantly lower than the anecdotal claims of the tobacco industry. Although the scale of the illicit market is significant it has not undermined tobacco control policy. Consumption in the total market, including both the illicit and legal market, has declined in size consistently. At the same time, tax revenue from higher excise taxes has offset the tax losses as a result of illicit trade.