186
Breyer, J., dissenting
"response" to "the problem of tobacco and health," ante, at 157, is based on legislative silence. Notwithstanding the views voiced by various legislators, Congress itself has addressed expressly the issue of the FDA's tobacco-related authority only once—and, as I have said, its statement was that the statute was not to "be construed to affect the question of whether the [FDA] has any authority to regulate any tobacco product." Note following 21 U. S. C. § 321 (1994 ed., Supp. III). The proper inference to be drawn from all of the post-1965 statutes, then, is one that interprets Congress' general legislative silence consistently with this statement.
IV
I now turn to the final historical fact that the majority views as a factor in its interpretation of the subsequent legislative history: the FDA's former denials of its tobacco-related authority.
Until the early 1990's, the FDA expressly maintained that the 1938 statute did not give it the power that it now seeks to assert. It then changed its mind. The majority agrees with me that the FDA's change of positions does not make a significant legal difference. See ante, at 156-157; see also Chevron, 467 U. S., at 863 ("An initial agency interpretation is not instantly carved in stone"); accord, Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996) ("[C]hange is not invalidating"). Nevertheless, it labels those denials "important context" for drawing an inference about Congress' intent. Ante, at 157. In my view, the FDA's change of policy, like the subsequent statutes themselves, does nothing to advance the majority's position.
When it denied jurisdiction to regulate cigarettes, the FDA consistently stated why that was so. In 1963, for example, FDA administrators wrote that cigarettes did not satisfy the relevant FDCA definitions—in particular, the "intent" requirement—because cigarette makers did not sell their product with accompanying "therapeutic claims."
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