[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3889 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 3889

    To amend the Federal Food, Drug, and Cosmetic Act to strengthen 
                         controls over tobacco.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 14, 1998

  Mr. Upton introduced the following bill; which was referred to the 
                         Committee on Commerce

_______________________________________________________________________

                                 A BILL


 
    To amend the Federal Food, Drug, and Cosmetic Act to strengthen 
                         controls over tobacco.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Teen Tobacco Use Prevention Act of 
1998''.

SEC. 2. TOBACCO PRODUCT REGULATION.

    (a) Amendment.--The Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
301 et seq.) is amended--
            (1) by redesignating chapter IX as chapter X;
            (2) by redesignating sections 901, 902, 903, 904, and 905 
        as sections 1001, 1002, 1003, 1004, and 1005, respectively; and
            (3) by adding after chapter VIII the following new chapter:

  ``CHAPTER IX--HEALTH AND SAFETY REGULATORY REQUIREMENTS RELATING TO 
                            TOBACCO PRODUCTS

``SEC. 900. DEFINITIONS.

    ``In this chapter:
            ``(1) Cigarette.--The term `cigarette' means any product 
        which contains nicotine, is intended to be burned under 
        ordinary conditions of use, and consists of--
                    ``(A) any roll of tobacco wrapped in paper or in 
                any substance not containing tobacco; and
                    ``(B) any roll of tobacco wrapped in any substance 
                containing tobacco which, because of its appearance, 
                the type of tobacco used in the filler, or its 
                packaging and labeling, is likely to be offered to, or 
                purchased by, consumers as a cigarette described in 
                subparagraph (A).
            ``(2) Cigarette tobacco.--The term `cigarette tobacco' 
        means any product that consists of loose tobacco that contains 
        or delivers nicotine and is intended for use by persons in a 
        cigarette. Unless otherwise stated, the requirements of this 
        title pertaining to cigarettes shall also apply to cigarette 
        tobacco.
            ``(3) Nicotine.--The term `nicotine' means the chemical 
        substance named 3-(1-Methyl-2-pyrrolidinyl)pyridine or 
        C<INF>10</INF>H<INF>14</INF>N<INF>2</INF>, including any salt 
        or complex of nicotine.
            ``(4) Smokeless tobacco.--The term `smokeless tobacco' 
        means any product that consists of cut, ground, powdered, or 
leaf tobacco that contains nicotine and that is intended to be placed 
in the oral or nasal cavity.
            ``(5) Tar.--The term `tar' means mainstream total 
        particulate matter minus nicotine and water.
            ``(6) Tobacco additive.--The term `tobacco additive' means 
        any substance the intended use of which results or may 
        reasonably be expected to result, directly or indirectly, in 
        the substance becoming a component of, or otherwise affecting 
        the characteristics of, any tobacco product, including any 
        substance that may have been removed from the tobacco product 
        and then readded in the substance's original or modified form.
            ``(7) Tobacco product.--The term `tobacco product' means 
        cigarettes and smokeless tobacco products.

               ``Subchapter A--Tobacco Product Regulation

``SEC. 902. CONSTITUENT LABELING.

    ``(a) In General.--The Secretary shall by regulation require the 
manufacturer of tobacco products to include, in accordance with 
subsection (c), on a label on the package of the products the amount of 
tar and nicotine in the tobacco products and the amount of carbon 
monoxide produced by such products.
    ``(b) Regulations.--The Secretary may by regulation require the 
manufacturer of tobacco products to include, in accordance with 
subsection (c), on a label on the package of the products constituents 
in addition to the constituents described in subsection (a) if the 
Secretary determines that identification of such constituents is 
necessary for the protection of the public health.
    ``(c) Common or Usual Names.--The Secretary shall promulgate 
regulations requiring the disclosure to the public of the common or 
usual name of each ingredient (other than tobacco, water, or 
reconstituted tobacco sheet made wholly from tobacco) contained in a 
tobacco product in descending order of predominance by weight, except 
that such regulations--
            ``(1) may provide for the disclosure of spices, flavorings, 
        and colorings without naming each spice, flavoring, or 
        coloring; and
            ``(2) may exempt from disclosure incidental additives, 
        including processing aids and chemical preservatives, that are 
        present in a tobacco product at insignificant levels that the 
        Secretary determines do not have any functional effect or 
        health risk.

``SEC. 903. TOBACCO PRODUCT LABELING, WARNING, AND PACKAGING STANDARDS.

    ``(a) Cigarettes.--
            ``(1) Packaging.--It shall be unlawful for any person to 
        manufacture, package, or import for sale or distribution within 
        the United States any cigarettes the package of which fails to 
        bear, in accordance with the requirements of this subsection, 
        one of the following statements:
                ``WARNING: Cigarettes Are Addictive.
                ``WARNING: Tobacco Smoke Can Harm Your Children.
                ``WARNING: Cigarettes Cause Fatal Lung Disease.
                ``WARNING: Cigarettes Cause Cancer.
                ``WARNING: If You Think Smoking Is Cool, You Are Dead 
                Wrong.
                ``WARNING: Cigarettes Cause Strokes And Heart Disease.
                ``WARNING: Smoking During Pregnancy Can Harm Your Baby.
                ``WARNING: Smoking Can Kill You.
                ``WARNING: Tobacco Smoke Causes Fatal Lung Disease In 
                Nonsmokers.
                ``WARNING: Quitting Smoking Now Greatly Reduces Serious 
                Risks To Your Health.
            ``(2) Requirements for label statements.--
                    ``(A) Location.--Each label statement required by 
                paragraph (1) shall be located on the upper portion of 
                the front panel of the cigarette package (or carton) 
                and occupy not less than 25 percent of such front 
                panel.
                    ``(B) Type and color.--With respect to each label 
                statement required by paragraph (1), the phrase 
                `WARNING' shall appear in capital letters and the label 
                statement shall be printed in 17 point type with 
                adjustments as determined appropriate by the Secretary 
                to reflect the length of the required statement. All 
                the letters in the label statement shall appear in 
                conspicuous and legible type, in contrast by 
                typography, layout, or color with all other printed 
                material on the package, and be printed in an 
                alternating black-on-white and white-on-black format as 
                determined appropriate by the Secretary.
                    ``(C) Exception.--Paragraph (1) shall not apply in 
                the case of a flip-top cigarette package (offered for 
                sale on the date of enactment of this title) where the 
                front portion of the flip-top does not comprise at 
                least 25 percent of the front panel. In the case of 
                such a package, the label statement required by 
                subparagraph (A) of paragraph (1) shall occupy the 
                entire front portion of the flip top.
            ``(3) Requirements for advertising.--
                    ``(A) In general.--It shall be unlawful for any 
                manufacturer or importer of cigarettes to advertise or 
                cause to be advertised within the United States any 
                cigarette unless the advertising bears, in accordance 
                with the requirements of this subsection, one of the 
                following statements:
                        ``WARNING: Cigarettes Are Addictive.
                        ``WARNING: Tobacco Smoke Can Harm Your 
                        Children.
                        ``WARNING: Cigarettes Cause Fatal Lung Disease.
                        ``WARNING: Cigarettes Cause Cancer.
                        ``WARNING: If You Think Smoking Is Cool, You 
                        Are Dead Wrong.
                        ``WARNING: Cigarettes Cause Strokes And Heart 
                        Disease.
                        ``WARNING: Smoking During Pregnancy Can Harm 
                        Your Baby.
                        ``WARNING: Smoking Can Kill You.
                        ``WARNING: Tobacco Smoke Causes Fatal Lung 
                        Disease In Nonsmokers.
                        ``WARNING: Quitting Smoking Now Greatly Reduces 
                        Serious Risks To Your Health.
                    ``(B) Location.--Each label statement required by 
                subparagraph (A) shall occupy not less than 20 percent 
                of the area of the advertisement involved.
                    ``(C) Type and color.--
                            ``(i) Type.--With respect to each label 
                        statement required by subparagraph (A), the 
                        phrase `WARNING' shall appear in capital 
                        letters and the label statement shall be 
                        printed in the following types:
                                    ``(I) With respect to whole page 
                                advertisements on broadsheet 
                                newspaper--45 point type.
                                    ``(II) With respect to half page 
                                advertisements on broadsheet 
                                newspaper--39 point type.
                                    ``(III) With respect to whole page 
                                advertisements on tabloid newspaper--39 
                                point type.
                                    ``(IV) With respect to half page 
                                advertisements on tabloid newspaper--27 
                                point type.
                                    ``(V) With respect to DPS magazine 
                                advertisements--31.5 point type.
                                    ``(VI) With respect to whole page 
                                magazine advertisements--31.5 point 
                                type.
                                    ``(VII) With respect to 28cm x 3 
                                column advertisements--22.5 point type.
                                    ``(VIII) With respect to 20cm x 2 
                                column advertisements--15 point type.
                        The Secretary may revise the required type 
                        sizes as the Secretary determines appropriate 
                        within the 20 percent requirement.
                            ``(ii) Color.--All the letters in the label 
                        statement under this subparagraph shall appear 
                        in conspicuous and legible type, in contrast by 
                        typography, layout, or color with all other 
                        printed material in the advertisement, and be 
                        printed in an alternating black-on-white and 
                        white-on-black format as determined appropriate 
                        by the Secretary.
            ``(4) Rotation of label statements.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), the label statements specified in 
                paragraphs (1) and (2)(A) shall be rotated by each 
                manufacturer or importer of cigarettes quarterly in 
                alternating sequence on packages of each brand of 
                cigarettes manufactured by the manufacturer or importer 
                and in the advertisements for each such brand of 
                cigarettes in accordance with a plan submitted by the 
                manufacturer or importer and approved by the Secretary. 
                The Secretary shall approve a plan submitted by a 
                manufacturer or importer of cigarettes which will 
                provide the rotation required by this paragraph and 
                which assures that all of the label statements required 
                by paragraphs (1) and (2)(A) will be displayed by the 
                manufacturer or importer at the same time.
                    ``(B) Application of other rotation requirements.--
                            ``(i) In general.--A manufacturer or 
                        importer of cigarettes may apply to the 
                        Secretary to have the rotation schedule 
                        described in clause (iii) apply with respect to 
                        a brand style of cigarettes manufactured or 
                        imported by such manufacturer or importer if--
                                    ``(I) the number of cigarettes of 
                                such brand style sold in the fiscal 
                                year of the manufacturer or importer 
                                preceding the submission of the 
                                application is less than \1/4\ of 1 
                                percent of all the cigarettes sold in 
                                the United States in such year; and
                                    ``(II) more than \1/2\ of the 
                                cigarettes manufactured or imported by 
                                such manufacturer or importer for sale 
                                in the United States are packaged into 
                                brand styles which meet the 
                                requirements of subclause (I).
                        If an application is approved by the Secretary, 
                        the rotation schedule described in clause (iii) 
                        shall apply with respect to the applicant 
                        during the 1-year period beginning on the date 
                        of the application approval.
                            ``(ii) Plan.--An applicant under clause (i) 
                        shall include in its application a plan under 
                        which the label statements specified in 
                        subparagraph (A) of paragraph (1) will be 
                        rotated by the applicant manufacturer or 
                        importer in accordance with the label rotation 
                        described in clause (iii).
                            ``(iii) Other rotation requirements.--Under 
                        the rotation schedule which the manufacturer or 
                        importer with an approved application may put 
                        into effect, each of the label statements 
                        specified in paragraph (1) shall appear on the 
                        packages of each brand style of cigarettes with 
                        respect to which the application was approved 
                        an equal number of times within the 12-month 
                        period beginning on the date of the approval by 
                        the Secretary of the application.
            ``(5) Application of requirement.--Paragraph (1) does not 
        apply to a distributor or retailer of cigarettes who does not 
        manufacture, package, or import cigarettes for sale or 
        distribution within the United States.
            ``(6) Television and radio advertising.--It shall be 
        unlawful to advertise cigarettes and little cigars on any 
        medium of electronic communications subject to the jurisdiction 
        of the Federal Communications Commission.
    ``(b) Smokeless Tobacco Products.--
            ``(1) In general.--
                    ``(A) Packaging.--It shall be unlawful for any 
                person to manufacture, package, or import for sale or 
                distribution within the United States any smokeless 
                tobacco product the package of which fails to bear, in 
                accordance with the requirements of this subsection, 
                one of the following statements:
                        ``WARNING: This Product May Cause Mouth Cancer.
                        ``WARNING: This Product May Cause Gum Disease 
                        And Tooth Loss.
                        ``WARNING: This Product Is Not A Safe 
                        Alternative To Cigarettes.
                        ``WARNING: Smokeless Tobacco Is Addictive.
                    ``(B) Advertising.--It shall be unlawful for any 
                manufacturer or importer of smokeless tobacco products 
                to advertise or cause to be advertised within the 
                United States any smokeless tobacco product unless the 
                advertising bears, in accordance with the requirements 
                of this subsection, one of the following statements:
                        ``WARNING: This Product May Cause Mouth Cancer.
                        ``WARNING: This Product May Cause Gum Disease 
                        And Tooth Loss.
                        ``WARNING: This Product Is Not A Safe 
                        Alternative To Cigarettes.
                        ``WARNING: Smokeless Tobacco Is Addictive.
            ``(2) Requirements for label statements.--
                    ``(A) Location.--Each label statement required by 
                subparagraph (A) of paragraph (1) shall be located on 
                the principal display panel of the product and occupy 
                not less than 25 percent of such panel.
                    ``(B) Type and color.--With respect to each label 
                statement required by subparagraph (A) of paragraph 
                (1), the phrase `WARNING' shall appear in capital 
                letters and the label statement shall be printed in 17 
                point type with adjustments as determined appropriate 
                by the Secretary to reflect the length of the required 
                statement. All the letters in the label statement shall 
                appear in conspicuous and legible type in contrast by 
                typography, layout, or color with all other printed 
                material on the package and be printed in an 
                alternating black on white and white on black format as 
                determined appropriate by the Secretary.
            ``(3) Advertising and rotation.--The provisions of 
        paragraphs (3) and (4)(A) of subsection (a) shall apply to 
        advertisements for smokeless tobacco products and the rotation 
        of the statements required under paragraph (1)(A) on such 
        products.
            ``(4) Application of requirement.--Paragraph (1) does not 
        apply to a distributor or retailer of smokeless tobacco 
        products who does not manufacture, package, or import such 
        products for sale or distribution within the United States.
            ``(5) Television and radio advertising.--It shall be 
        unlawful to advertise smokeless tobacco on any medium of 
        electronic communications subject to the jurisdiction of the 
        Federal Communications Commission.
    ``(c) Statement of Intended Use.--
            ``(1) Requirement.--Each manufacturer, distributor, and 
        retailer advertising or causing to be advertised, disseminating 
        or causing to be disseminated advertising concerning, tobacco 
        products otherwise permitted under this chapter shall include, 
        in a type size and format as the Secretary may prescribe in a 
        regulation promulgated under subsection (d), the established 
        name of the product and a statement of the intended use of the 
        product as provided for in paragraph (2).
            ``(2) Intended use statements.--
                    ``(A) Cigarettes.--A statement of intended use for 
                cigarettes or cigarette tobacco is as follows 
                (whichever is appropriate):
                ``Cigarettes--A Dangerous Tobacco Product Intended For 
                Use Only By Persons 18 or Older.
                ``Cigarette Tobacco--A Dangerous Tobacco Product 
                Intended For Use Only By Persons 18 or Older.
                    ``(B) Smokeless tobacco.--A statement of intended 
                use for a smokeless tobacco product is as follows 
                (whichever is appropriate):
                ``Loose Leaf Chewing Tobacco--A Dangerous Tobacco 
                Product Intended For Use Only By Persons 18 or Older.
                ``Plug Chewing Tobacco--A Dangerous Tobacco Product 
                Intended For Use Only By Persons 18 or Older.
                ``Twist Chewing Tobacco--A Dangerous Tobacco Product 
                Intended For Use Only By Persons 18 or Older.
                ``Moist Snuff--A Dangerous Tobacco Product Intended For 
                Use Only By Persons 18 or Older.
                ``Dry Snuff--A Dangerous Tobacco Product Intended For 
                Use Only By Persons 18 or Older.
    ``(d) Regulations.--
            ``(1) In general.--Not later than 180 days after the date 
        of the enactment of this Act, the Secretary shall promulgate 
        such regulations as may be necessary to implement subsections 
        (a), (b), and (c).
            ``(2) Authority to revise tobacco product labeling 
        statements.--The Secretary may by rule change the text of any 
        of the statements required under subsections (a) and (b). A 
        rule promulgated under this subparagraph shall not become 
        effective prior to the expiration of the 1-year period 
        beginning on the date on which the final rule is published in 
        the Federal Register.
    ``(e) Preemption.--No statement relating to the use of cigarettes 
or smokeless tobacco products and health, other than the statements 
required by subsections (a), (b), or (c), shall be required on any 
package or in any advertisement of cigarettes or a smokeless tobacco 
product.
    ``(f) Exports.--Packages of cigarettes or smokeless tobacco 
products manufactured, imported, or packaged--
            ``(1) for export from the United States; or
            ``(2) for delivery to a vessel or aircraft, as supplies, 
        for consumption beyond the jurisdiction of the internal revenue 
        laws of the United States;
shall be exempt from the requirements of this chapter, but such 
exemptions shall not apply to cigarettes or smokeless tobacco products 
manufactured, imported, or packaged for sale or distribution to members 
or units of the Armed Forces of the United States located outside of 
the United States.

``SEC. 904. VENDING MACHINES.

    ``(a) In General.--No manufacturer, distributor, or retailer may 
distribute or cause to be distributed any tobacco product through a 
vending machine, except that distribution may be made through vending 
machines that are located in facilities where the retailer ensures that 
no individuals under 18 years of age are present or permitted to enter 
at any time.
    ``(b) Monitoring.--The Secretary shall, during the 2 year period 
beginning on the effective date of this Act, monitor compliance with 
subsection (a). The Secretary may propose additional restrictions on 
vending machine sales if there is evidence that individuals under the 
age of 18 are continuing to purchase tobacco products from vending 
machines.

``SEC. 905. MINIMUM AGE.

    ``(a) Prohibition.--No person shall sell or distribute a tobacco 
product to an individual under the age of 18 or such higher age as may 
be prescribed by applicable State law.
    ``(b) Verification.--A retailer of tobacco products shall verify 
that an individual is 18 or older by checking identification that 
includes the individual's date of birth and photograph. Such 
verification shall be made of any individual age 26 or younger. If a 
State has in effect a law which prohibits the sale of tobacco products 
to individuals under age 18, the Secretary may not take enforcement 
action against a retailer of tobacco products for the sale in such 
State of tobacco products without checking identification as required 
by this subsection if such a sale is a face-to-face transaction and is 
conducted in accordance with such State law to an individual who is of 
legal age.
    ``(c) Notice.--The Secretary shall notify any retailer who is found 
not to be routinely complying with subsection (b) of such failure of 
the retailer and of the penalties under this section.
    ``(d) Penalties.--For a violation of subsection (a)--
            ``(1) if it is a first offense, the Secretary shall notify 
        the retailer of the violation and warn the retailer of 
        penalties for subsequent violations;
            ``(2) for the second violation, be subject to a civil 
        penalty of $250; and
            ``(3) for each subsequent violation, be subject to a civil 
        penalty which is twice the amount of the preceding civil 
        penalty.
    ``(e) Enforcement.--A State shall--
            ``(1) enforce the law described in subsection (a) 
        systematically and conscientiously and in a manner that can 
reasonably be expected to reduce the extent to which tobacco products 
are available in such State to individuals under the age of 18;
            ``(2) certify that the State requires enforcement of such 
        law to be treated as a priority by State and local law 
        enforcement authorities;
            ``(3) conduct random, unannounced inspections to ensure 
        compliance with the law described in subsection (a); and
            ``(4) annually submit to the Secretary a report 
        describing--
                    ``(A) the activities carried out by the State to 
                enforce such law;
                    ``(B) the steps taken by the State to ensure that 
                enforcement of such law was treated as a priority by 
                State and local law enforcement authorities;
                    ``(C) the extent of success the State has achieved 
                in reducing the availability of tobacco products to 
                individuals under the age of 18; and
                    ``(D) the strategies to be utilized by the State 
                for enforcing such law
    If a State does not comply with this subsection, the Secretary may 
reduce the amount of a grant that the State is eligible for under 
section 1926 of the Public Health Service Act. The reduction shall stay 
in effect until the State demonstrates to the Secretary that it is 
complying with this subsection.

``SEC. 906. SMALL SALES AND SAMPLES.

    ``(a) Prohibition.--No person may distribute or sell a cigarette 
individually or in packages of less than 20 and no person may 
distribute samples of cigarettes.
    ``(b) Penalties.--The penalties prescribed by section 905(d) shall 
apply to violations of subsection (a).

``SEC. 907. DISTRIBUTION THROUGH THE MAIL.

    ``(a) In General.--No person may distribute a tobacco product 
through the mail.
    ``(b) Authority to Use Mail.--A person who wants to distribute a 
tobacco product through the mail shall submit to the Secretary a plan 
which will ensure that the tobacco product will only go to individuals 
who are 18 or older. If the Secretary approves the plan, such person 
may make such distribution.
    ``(c) Monitoring.--The Secretary shall after 2 years after the 
effective date of this Act review distributions of tobacco products 
through the mail to determine if individuals under the age of 18 are 
receiving tobacco products so distributed.
    ``(d) Penalties.--The penalties prescribed by section 905(d) shall 
apply to violations of subsection (a).

``SEC. 908. TOBACCO PRODUCT USE REDUCTION TARGETS.

    ``(a) In General.--The Secretary shall determine the average annual 
incidence of the daily use of tobacco products by individuals who are 
under 18 years of age and the Secretary shall determine the underage 
use base percentage for tobacco products which shall be a percentage 
determined by the Secretary, weighted by the population of the age 
group involved as determined using data compiled in 1995 by the Bureau 
of the Census. The Secretary shall report to the Congress the average 
annual incidence and underage use base percentage.
    ``(b) Goals.--With respect to the average annual incidence of the 
daily use of tobacco products by individuals who are under 18 years of 
age, it shall be the national goals of the United States that such use 
be reduced as follows:
            ``(1) in the fifth calendar year after the date of 
        enactment of this Act the percentage decrease in the use of 
        tobacco products shall be at least 35 percent;
            ``(2) in the seventh calendar year after the date of 
        enactment of this Act the percentage decrease in the use of 
        tobacco products shall be at least 50 percent; and
            ``(3) in the tenth and subsequent calendar years after the 
        date of enactment of this Act the percentage decrease in the 
        use of tobacco products shall be at least 80 percent.
    ``(c) Determination.--The Secretary shall determine whether the 
required percentage reduction in the underage use of tobacco products 
in the fifth calendar year after the date of enactment of this Act 
(based on subsection (b)) has been achieved for the year involved. If 
it has not, the Secretary may make recommendations to the Congress with 
respect to a different goal of reduction in underage use of tobacco 
products.''
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect January 1, 1999.
                                 <all>