Letters Section Editor: Robert M. Golub, MD, Senior Editor.
To the Editor: In his Commentary, Dr Gostin1 hardly does justice to the Rehnquist Court's role in dealing with the top preventable cause of death in the United States, smoking-related disease.
More than 100 years ago, during the discussion regarding what was finally passed as the original Food and Drug Act of 1906, JAMA stated that “ . . . the poisoning of the population for profit by mercenary manufacturers is in its way a much more vital question. . . . ”2 In 2000, by a 5 to 4 decision, the Supreme Court, in FDA v Brown & Williamson Tobacco Corp, denied the US Food and Drug Administration (FDA) jurisdiction over cigarettes.3 Justice Stephen Breyer, who wrote the dissenting opinion, observed at the time of oral argument: “Is the statute [Federal Food, Drug, & Cosmetic Act of 1938] supposed to stop the FDA from looking at the real world?”4 However, Justice Sandra Day O’Connor, who wrote the majority opinion, unrealistically stated that “ . . . we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.”3 During oral argument, Justice Antonin Scalia asked, “Why wasn't the Surgeon General's report fully enough?”4
Lutschg JH. The Rehnquist Court and Tobacco. JAMA. 2006;295(11):1250-1251. doi:10.1001/jama.295.11.1250-c