But if the tobacco companies choose to fight it, the law could be tied up in the courts for years. That s big tobacco s big threat. Two provisions of the current bill are particularly vulnerable to constitutional challenge by the tobacco companies. Neither provision has to do with the huge penalties the companies are upset about, but the companies will use them to make their case in court. The other provision would force the companies to pay relatively small additional fines if the rate of teenage smoking doesn t decline 25 percent after 5 years, and 45 percent over the decade.
Some constitutional experts say the companies have a good case.
Congress won t back down from the big-buck penalties, because almost no legislator these days wants to appear to be caving in to tobacco. The public wants tough anti-tobacco legislation. But in order to minimize the risk of a constitutional challenge, Congress is likely to drop these two provisions. That would be a shame, because they re the most important parts of the bill. Teen smoking is on the rise.