Senate Passes Legislation To Allow FDA To Regulate Tobacco Products
The Senate on Thursday "overwhelmingly" approved legislation that would allow FDA for the first time to regulate the manufacture, promotion and sale of cigarettes "in return for an industry-financed buyout of tobacco farmers," the Washington Post reports. The legislation, approved on a 78-15 vote, is part of a larger corporate tax relief bill (HR 4520) (DeWar, Washington Post, 7/16). Lawmakers from states that produce tobacco in the past have opposed legislation that would allow FDA to regulate tobacco products, but they "signed off on the new oversight" in exchange for a $12 billion, 10-year program that would eliminate federal quotas on the amount of tobacco farmers can grow (Hulse, New York Times, 7/16).
The Senate vote marks "the first time that either house approved the regulation of tobacco" by FDA, according to the Post. The legislation, co-sponsored by Sens. Mike DeWine (R-Ohio) and Edward Kennedy (D-Mass.), would:
- Allow FDA to ban advertisements for tobacco products that target children;
- End vending machine and self-service sales of tobacco products (Washington Post, 7/16);
- Allow FDA to ban cigarettes flavored with chocolate or other flavors that could promote use among children;
- Increase restrictions to prevent the sale of tobacco products to children;
- Require that health warning labels cover at least 30% of cigarette packs (Shogren, Los Angeles Times, 7/16);
- Ban or restrict the use of hazardous ingredients in cigarettes;
- Ban reduced-risk health claims for nicotine products that are not verified;
- Require tobacco companies to provide FDA with a list of all ingredients and additives in tobacco products, as well as new documents related to the health and other effects of tobacco use;
- Allow FDA to require tobacco companies to list ingredients on product packages;
- Allow FDA to require changes in the manufacture of tobacco products, such as the reduction or elimination of additives (Washington Post, 7/16);
- Require that magazine ads for tobacco products only appear in black and white;
- Prohibit an FDA ban on tobacco and nicotine products without congressional approval (New York Times, 7/16); and
- Prohibit FDA regulation of tobacco farmers (Heil, CongressDaily, 7/16).
The approval of the FDA tobacco regulation legislation in the Senate resulted from an "unlikely coalition of tobacco growers and public health experts" who agreed that neither the tobacco buyout bill nor the FDA regulation bill could have passed individually, according to Matthew Myers, president of the Campaign for Tobacco Free Kids (Los Angeles Times, 7/16). He added, "If the amendment is enacted into law, it will be one of the most important public health measures ever adopted by Congress" (Jalonick, CQ Today, 7/15). Kennedy said, "Smoking is a health epidemic for our young people. This is the most important step we can take for public health short of curing cancer itself" (Los Angeles Times, 7/16). DeWine said, "The bill will save lives." He added, I think we have a good shot at this becoming law," and the agreement between tobacco farmers and public health advocates was a "shotgun marriage ... that made sense" (Washington Post, 7/16).
Presumptive Democratic vice presidential candidate Sen. John Edwards (N.C.) said, "I hope President Bush, who recently said he thought the system was just fine, will see the light and help us pass this legislation" (New York Times, 7/16). White House spokesperson Trent Duffy said the Bush administration has not taken position on FDA regulation of tobacco but is "willing to consider the Senate legislation during negotiations in the coming weeks," according to the Los Angeles Times (Los Angeles Times, 7/16). Senate Majority Whip Mitch McConnell (R-Ky.) said, "I'm not a great fan of FDA regulation today. But these two issues needed to be married here in the United States Senate if we were to get either one of them" (Rogers, Wall Street Journal, 7/16). Sen. Jim Bunning (R-Ky.) said, "I think FDA regulation is a very steep price to pay for a buyout. But if that's the only way to get my growers relief, this senator will vote to pay it" (Washington Post, 7/16).
However, Senate Budget Committee Chair Don Nickles (R-Okla.) called the FDA tobacco regulation legislation "a waste of money" (Sparshott, Washington Times, 7/16). Other opponents said that the legislation would provide a competitive advantage to Philip Morris USA, whose brands such as Marlboro currently account for about 50% of cigarette sales, according to the Journal. Tommy Payne, executive vice president of external relations at R.J. Reynolds, said that the legislation "has a real potential for shutting off competition." Steven Watson, a vice president at Lorillard Tobacco, which has called the legislation "the Marlboro Monopoly Act," said, "This bill gives unprecedented authority to the FDA ... to alter the product in a way that it's not marketable" (Wall Street Journal, 7/16).
The FDA tobacco regulation legislation was attached as an amendment to the "controversial" tax relief bill, and supporters said that the bill could fail in negotiations over tax relief, according to the Post (Washington Post, 7/16). In addition, lawmakers predicted that they would not complete negotiations on the tax relief bill until at least September (Zuckerbrod, AP/Las Vegas Sun, 7/16). The bill will move into conference with the House version, which does not include the FDA tobacco regulation legislation (Los Angeles Times, 7/16). House Majority Leader Tom DeLay (R-Texas) has "consistently opposed ... FDA regulation" of tobacco products, and an unnamed Republican Senate aide predicted that he would oppose the legislation in conference. In addition, House members from states that produce tobacco have indicated plans to limit the FDA tobacco regulation legislation in conference, according to CQ Today. The Senate aide said that for the legislation "to get through the House, it will have to be a pretty watered-down version of FDA (regulation)."
However, Mark Berlind, legislative counsel for the Altria Group, parent company of Philip Morris and a supporter of the legislation, said, "The legislation reflects a delicate balance that reconciles competing points of view, and resolves many of the most difficult tobacco policy questions facing this country. Any attempts to alter it would imperil the prospects of finally achieving meaningful, effective FDA regulation of tobacco products." Myers said that public health groups would "leave no stone unturned" in their opposition to the tax relief bill if the FDA tobacco regulation legislation is revised in conference (CQ Today, 7/15). DeWine predicted that the FDA tobacco regulation legislation "will last through the conference committee to come" (CongressDaily, 7/16).
Although the "lack of jurisdiction" that FDA has over tobacco products is "an absurdity," the coalition between tobacco farmers and public health advocates is "ill advised," and the tobacco industry "shouldn't be paid a huge ransom just so Congress feels it can do the right thing," a New York Times editorial states. FDA "should be able to regulate the sale, marketing and manufacturing of tobacco products, with a particular eye toward keeping children from becoming addicted," but the tobacco buyout legislation "creates a disastrous precedent for a nation that direly needs to start dismantling other crop supports, both for domestic budgetary reasons and to comply with international trade laws," the editorial continues. The editorial adds, "A more responsible Congress would have approved tobacco regulation as a stand-alone victory for the public" (New York Times, 7/16).This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.