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Three minutes into Wednesday’s oral arguments, it was clear that the federal government would have a hard time convincing the Supreme Court that the Food and Drug Administration can claim jurisdiction over tobacco.

As she often does, Justice Sandra Day O’Connor tossed out the first question, asking Solicitor General Seth Waxman how a product that is not marketed as a cure for a disease and cannot be viewed as safe and effective can come under the FDA’s jurisdiction.

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