IS TOBACCO A DRUG - ADMINISTRATIVE AGENCIES AS COMMON-LAW COURTS

Professor Cass Sunstein argues that the FDA has the authority to regul ate 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 b etween text and context in favor of FDA jurisdiction by turning to the emerging role of administrative agencies. In modern government, he co ntends, administrative agencies have become America's common law court s, with the power to adapt statutory regimes to new facts and new, val ues when the underlying statute is ambiguous. Professor Sunstein's Art icle, like the other pieces in this volume, was written after the Unit ed States District Court for the Middle District of North Carolina dec ided Coyne Beahm v, FDA,(1) but before a three judge panel of the Unit ed States Court of Appeals for the Fourth Circuit reversed that decisi on in Brown & Williamson Tobacco Corp, v, FDA.(2) In Coyne Beahm, the District Court hem that the Federal Food Drug, and Cosmetic Act author ized the FDA to regulate tobacco products, brit not tobacco advertisin g The Fourth Circuit rejected the District Court's jurisdictional ruli ng and invalidated the FDA's regulations in their entirety. The Clinto n Administration has since requested mt en bane rehearing before the F ourth Circuit.(3).