FDA, doctors, lawyers intensify anti-tobacco efforts.

Pressure on the tobacco industry ratcheted up considerably over the summer as the legal and medical communities continued to challenge the industry's longstanding claim that nicotine in cigarettes is not addictive.

Several recent developments have added momentum to the assault on the industry by antismoking activists and may boost prospects for litigation against the previously invulnerable tobacco companies. Since July:

* The FDA determined that nicotine is a drug subject to regulation under the Food, Drug, and Cosmetic Act. In August, President Clinton authorized the agency to begin rulemaking math the goal of reducing youth smoking. Regulations would include a ban on vending machine sales and restrictions on advertising targeted at minors. The industry would be required to fund an antismoking campaign aimed at young people.

* The American Medical Association (AMA) published a detailed analysis of thousands of internal tobacco industry documents. The authors of the study said the documents prove tobacco executives knew more than 30 years ago that nicotine is addictive and that smoking is a serious health hazard.

In an editorial in the July 19 issue of the Journal of the American Medical Association, in which several articles discussed the documents, the AMA said consumers had been "duped" by tobacco companies and called for "the removal of this scourge from our nation."

* Federal prosecutors in the District of Columbia and New York launched criminal investigations of the industry. Yhe D.C. probe is reportedly looking into whether top tobacco executives committed perjury last year when they testified before Congress that their companies do not manipulate nicotine levels in cigarettes. In New York, the investigation focuses on whether the companies fraudulently concealed evidence that nicotine is addictive. (Viveca Novak & Alix M. Freedman, Tobacco Industry Facing Two Criminal Investigations, Wall St. J., July 25, 1995, at A3.)

Plaintiffs' attorneys involved in tobacco litigation say these developments bolster their nase against the industry.

Russ Herman, a lead attorney in a New Orleans class action and a former ATLA president, said the case "is based on the premise that the tobacco companies knew that nicotine was a drug, that it was addictive." The Fifth Circuit recently agreed to hear the defendants' appeal on certification of the class, which potentially includes millions of addicted smokers. (Castano v. American Tobacco Co., No. 94-1044 (E.D. La. amended complaint filed May 9, 1994).)

Herman said the AMA report validates the truth as we know it. This is one of the first opportunities that the consumer trial bar has had to work hand in hand with the medical profession to remedy a problem that harms consumers." Meanwhile, courts issued notable rulings in two tobacco cases.

in Minnesota, a judge allowed attorneys representing the state in a suit against the industry to set up a document depository that would be open to lawyers in other tobacco cases. The Minnesota case seeks reimbursement from tobacco companies for state Medicaid funds spent on smoking-related illnesses. (Minnesota v. Philip Morris, Inc., No. CI-94-8565 (Minn., Ramsey County Dist. Ct. June 16, 1995).)

Herman said the ruling will benefit all tobacco plaintiffs. "Anytime you have sunshine in the courtroom it is extremely productive and helpful because the truth ought to be pervasive," he said. You shouldn't have to replicate the costs of discovery" in every case.

But Richard Daynard, chair of the Boston-based Tobacco Products Liability Project, worried that the ruling "goes too far - perhaps inadvertently - in allowing defendants to stamp `confidential' on everything. "Designating documents confidential would prevent them from being released to the public, which is "inimical to the public health he said.

* In Florida, a judge refused to strike down a state law that authorized the state to file a lawsuit similar to the one in Minnesota. The court rejected claims by the industry and a state business organization that the third-party liability law is unconstitutional. (Associated Industries of Florida, Inc. v. Florida, No. 94-3 to 28 (Fla., Leon County Cir. Ct. June 26, 1995).)

The law's future is uncertain, however. In June, Gov. Lawton Chiles vetoed a bill that would have repeated the statute. But opponents of the third-party liability measure held wide margins over supporters in the statehouse, and the veto may be overridden when the legislature reconvenes this month.