[Congressional Record Volume 141, Number 138 (Thursday, September 7, 1995)]
[Extensions of Remarks]
[Page E1736]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  PROHIBIT THE FDA AND HHS FROM REGULATING THE SALE OR USE OF TOBACCO 
                                PRODUCTS

                                 ______


                            HON. L.F. PAYNE

                              of virginia

                    in the house of representatives

                      Thursday, September 7, 1995
  Mr. PAYNE of Virginia. Mr. Speaker, today I am introducing 
legislation to prohibit the Food and Drug Administration [FDA] or any 
agent of the Department of Health and Human Services from regulating 
the sale or use of tobacco products. The bill is in direct response to 
the proposed rule that the FDA announced last month. Under the Agency's 
proposal, the FDA would assume broad new powers over tobacco 
advertising, marketing, and use--powers which Congress has steadfastly 
refused to grant to the Agency.
  I am very pleased to be joined in introducing this bill by 
Representatives Ballenger, Baesler, Boucher, Coble, Rogers, Hefner, 
Rose, Spratt, Scott, Bunning, Funderburk, Jones, Gordon, Clement, 
Clyburn, Taylor of North Carolina, Chambliss, and Ward.
  The purpose of this bill is not to thwart legitimate efforts to curb 
youth smoking. Everyone knows that minors should not smoke cigarettes 
or dip snuff. Reducing youth smoking is a goal that is almost 
universally shared. All 50 States have enacted laws to prohibit youth 
smoking. And the tobacco industry itself has taken voluntary steps to 
eliminate the sale of tobacco to minors. On several occasions this 
year, I have actively encouraged the Clinton administration to work 
with the industry in expanding voluntary restrictions as an alternative 
to new and over-reaching regulations.
  I have never met a tobacco farmer or warehouse employee who would 
want their children to smoke cigarettes. They want existing laws 
enforced, and they want voluntary measures to be given the chance to 
work.
  What they do not want is for the Federal Food and Drug Administration 
[FDA] to use legitimate public concerns about teen smoking as the 
pretext for asserting its enormous regulatory jurisdiction over tobacco 
products.
  Mr. Speaker, this bill is simple and straight-forward. It simply bars 
the FDA from proceeding with any regulations governing the sale or 
marketing of tobacco products. Prohibiting the FDA from moving forward 
with these proposed regulations is not only consistent with existing 
law, it will send an important message to every other agency that 
attempts to issue regulations without express authority from the 
Congress.
  This controversy is not new. In the last Congress, and in the 
Congress before that, legislation was introduced in the House and 
Senate to expand the FDA by creating a new regulatory category for 
tobacco products. Those proposals were rejected. In fact, throughout 
this century, tobacco's opponents have understood that their best 
chance to ban tobacco is to give unelected officials of the executive 
branch regulatory authority over this product. Time and again, such 
attempts have been rejected.
  When Congress has enacted legislation dealing with tobacco, its 
delegation to the executive branch has been narrow and very specific. 
The FTC, for example, has carefully drawn duties with respect to 
assuring that the Surgeon General's warning are placed on cigarettes 
marketed domestically.
  Furthermore, in enacting the Federal Cigarette Labeling and 
Advertising Act of 1965, Congress declared that the act set up a 
``comprehensive Federal program to deal with cigarette labeling and 
advertising (15 U.S.C. 1331).'' This language suggests strongly that 
actions not plainly authorized by the act are beyond the powers of the 
executive branch. It is difficult to understand how the FDA can proceed 
with new restrictions on tobacco advertising in light of this language.
  Even the FDA has acknowledged its inability to regulate tobacco.
  Unable to achieve victory in the halls of Congress, tobacco's 
opponents are now relying on the administrative powers of the executive 
branch to assert this new and potentially far-reaching authority over 
tobacco. Tobacco's opponents may celebrate the administration's action 
on tobacco right now, but they may rue the day when they allowed the 
executive branch to establish such a precedent.
  Just imagine the outcry of tobacco's most vociferous opponents if 
another President at another time tries to use executive powers to 
circumvent the expressed will of Congress on such matters as 
environmental safety, workplace protection, and gender equity. They 
would cry foul and they would have every right to.
  Beyond this important concern about the FDA's legal jurisdiction to 
act, it is also clear that the administration's proposal runs contrary 
to the whole focus of government right now. Americans want less 
government, not more. I find it ironic that as many agencies are 
downsized and eliminated completely, the administration would seek to 
expand the scope and mission of the Food and Drug Administration in 
this manner. Tobacco is already one of the most heavily regulated 
products in the United States. Regulation begins at the plant bed and 
runs well beyond the point of sale.
  Finally, the FDA needs to re-order its priorities and focus on those 
issues which Congress has charged it with. We have all heard the 
reports of the FDA being unable to test and approve life saving drugs 
in a timely manner. It is an agency that should get its own house in 
order rather than trying to take on new projects in areas where it 
clearly lacks jurisdiction.
  Mr. Speaker, I am proud to represent more than 5,000 tobacco growers. 
These hard-working farmers and their families don't want children to 
smoke. All they want is for Washington to treat them fairly.
  The FDA's proposed rulemaking is not fair. It contradicts the plain 
intent of Congress and is a thinly-veiled attempt to regulate and 
ultimately destroy domestic tobacco products. I urge my colleagues from 
both parties and from all regions of the country to join me in 
sponsoring this important bill.