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March 15, 2006

The Rehnquist Court and Tobacco

Author Affiliations

Letters Section Editor: Robert M. Golub, MD, Senior Editor.

JAMA. 2006;295(11):1250-1251. doi:10.1001/jama.295.11.1250-c

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