Tobacco shares tumble on FDA court victory

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Tobacco stocks were being battered once again last night, after a US federal judge upheld the right of the government to regulate the sale of cigarettes. While the ruling was mixed in its content, it was mostly a disappointment for the tobacco companies. The companies had been suing the Clinton administration over its approval of new rules drawn up by the Food and Drug Administration (FDA) to constrain the marketing of cigarettes.

But not everything in the judgment went the government's way. The court said that while the FDA was entitled to regulate the selling of cigarettes, it did not have the power to control industry advertising.

The ruling had been extremely keenly awaited and is likely to play directly into closed-door negotiations now under way between the industry and its various adversaries on a possible $300bn (pounds 185bn) long-term settlement. Within minutes of the 60-page ruling's appearance, the industry and the Clinton administration vowed to appeal against those parts that each side disliked.

In a pugnacious statement, President Bill Clinton said: "This is a fight for the health and the lives of our children." While conceding that a government appeal was being launched, the President added: "With this ruling, we can regulate tobacco products and protect our children from a lifetime of addiction and the prospect of having their lives cut short by the diseases that come with this addiction."

Issued in 1995, the FDA rules seek to impose various constraints on the industry, for example by banning vending-machine sales, outlawing billboard advertising near schools and requiring shop owners to obtain proof of age (above 18 years) before selling cigarettes to young people.

Behind these rules, however, is the key principle that the FDA is trying to establish: that cigarettes are a system for drug delivery and therefore must be subject to regulation. That is the principle the industry so dislikes and which the judge yesterday failed fully to knock down.

"It is a partial victory for the industry and a partial defeat," commented Roy Burry, an analyst with Oppenheimer in New York. "But I think it's more negative than positive for them."

This seemed to be reflected in the market, where within minutes of the ruling's release, shares in Philip Morris dipped by $2 to $39.625, while RJR Nabisco lost $1.50 to $30.125.

The search for a truce between the US tobacco industry and its adversaries that could lead to the creation of a $300bn smokers' compensation fund is meanwhile being snarled by arguments over legal immunity.

Several leading US health organisations as well as members of the US Congress have begun to voice alarm about secret talks between America's two biggest cigarette makers and representatives of the 23 US states suing the industry.

At the heart of the talks is a formula whereby the tobacco industry would agree to pay as much as $300bn over 25 years into the smokers' fund and comply in future with new federal rules. It is the notion that tobacco companies might win blanket immunity in return that is now stirring concern.