162
Breyer, J., dissenting
In its own interpretation, the majority nowhere denies the following two salient points. First, tobacco products (including cigarettes) fall within the scope of this statutory definition, read literally. Cigarettes achieve their mood-stabilizing effects through the interaction of the chemical nicotine and the cells of the central nervous system. Both cigarette manufacturers and smokers alike know of, and desire, that chemically induced result. Hence, cigarettes are "intended to affect" the body's "structure" and "function," in the literal sense of these words.
Second, the statute's basic purpose—the protection of public health—supports the inclusion of cigarettes within its scope. See United States v. Article of Drug . . . BactoUnidisk, 394 U. S. 784, 798 (1969) (FDCA "is to be given a liberal construction consistent with [its] overriding purpose to protect the public health" (emphasis added)). Unregulated tobacco use causes "[m]ore than 400,000 people [to] die each year from tobacco-related illnesses, such as cancer, respiratory illnesses, and heart disease." 61 Fed. Reg. 44398 (1996). Indeed, tobacco products kill more people in this country every year "than . . . AIDS . . . , car accidents, alcohol, homicides, illegal drugs, suicides, and fires, combined." Ibid. (emphasis added).
Despite the FDCA's literal language and general purpose (both of which support the FDA's finding that cigarettes come within its statutory authority), the majority nonetheless reads the statute as excluding tobacco products for two basic reasons:
(1) the FDCA does not "fit" the case of tobacco because the statute requires the FDA to prohibit dangerous drugs or devices (like cigarettes) outright, and the agency concedes that simply banning the sale of cigarettes is not a proper remedy, ante, at 139-141; and
(2) Congress has enacted other statutes, which, when viewed in light of the FDA's long history of denying
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