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JUDGE: FDA CANNOT RESTRICT ADS, BUT CAN REGULATE TOBACCO AS DRUG

WASHINGTON (FNS) -- The Food and Drug Administration plans to appeal a federal court ruling that prohibits the agency from restricting advertising of tobacco products.The April 25 decision by U.S. District Court Judge William Osteen in Greensboro, N.C., lets stand the agency's right to regulate tobacco as a drug, which means that its plans to crack down on tobacco sales to minors will move forward.In

WASHINGTON (FNS) -- The Food and Drug Administration plans to appeal a federal court ruling that prohibits the agency from restricting advertising of tobacco products.

The April 25 decision by U.S. District Court Judge William Osteen in Greensboro, N.C., lets stand the agency's right to regulate tobacco as a drug, which means that its plans to crack down on tobacco sales to minors will move forward.

In a victory for the FDA and anti-tobacco advocates, Osteen said in his decision that the FDA, under the Food, Drug and Cosmetic Act, clearly has the right to regulate tobacco. But the agency's reach stops there, the judge ruled.

"Although FDA has the authority... to impose access restrictions and labeling requirements on tobacco products, FDA lacks the authority to restrict their advertising and promotion," Osteen said, basing his decision on an interpretation of the FDCA.

The judge's ruling regarding tobacco advertising puts on hold, pending appeal, the second phase of the FDA regulations, which were set to take effect Aug. 28. This part of the FDA's guidelines seeks to ban advertising of tobacco products at events, or on T-shirts and baseball caps. The agency also seeks to limit billboard advertising of tobacco to black-and-white text and photos. Access to vending machines also would have been restricted in the second phase of the regulations.

The dispute over tobacco advertising, however, may become moot: The tobacco companies are in discussions to pay a multibillion-dollar settlement and stop most advertising to settle a flurry of pending suits.