[Congressional Record Volume 142, Number 11 (Friday, January 26, 1996)]
[House]
[Pages H915-H916]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         FEDERAL TOBACCO POLICY

  (Mr. COBLE asked and was given permission to address the House for 1 
minute and to revise and extend his remarks and include extraneous 
material.)
  Mr. COBLE. Mr. Speaker, this week during the State of the Union 
Address, the President remarked that the era of big government is over; 
however, it seems that some agencies within the Department of Health 
and Human Services [HHS] are under the impression that it is business 
as usual, especially when it concerns tobacco products.
  In 1992, Congress tasked HHS with implementing the Synar amendment 
designed to keep tobacco out of the hands of our children. This new 
congressional policy is simple: Encourage 

[[Page H916]]
each State to enforce laws prohibiting the sale of tobacco products to 
minors, oversee these State efforts, and deny certain Federal funds if 
the State fails to enforce these measures.
  Just last week, HHS issued its final rules governing the 
administration of this law. While I am disappointed that it took more 
than 3 years to issue these rules, I am encouraged that we may now see 
results from this policy.
  Meanwhile, a component of HHS--the Food and Drug Administration--has 
also attempted to improperly intervene in this debate on the pretext of 
protecting our children. I cannot believe that such action is simply a 
case of one hand not knowing what the other is doing; rather, it 
demonstrates that the FDA is so out of control that it has decided to 
disregard congressional intent and pursue its own Federal tobacco 
policy.
  I am pleased that HHS has finally decided to implement congressional 
policy to keep tobacco away from our children. I urge the President to 
withdraw the FDA's proposed rules and reject that agency's assertion of 
jurisdiction over tobacco products. In addition, I am enclosing an 
editorial on the subject from yesterday's Washington Times. I think my 
colleagues will find it to be interesting reading.

               [From the Washington Times, Jan. 24, 1996]

                      A Consensus on Teen Smoking

       Last week the U.S. Health and Human Services Department 
     (HHS) did something remarkable in the campaign to limit teen 
     smoking. It proposed regulations with which almost everyone 
     agreed. It threatened to strip states of millions of dollars 
     to fight drug and alcohol abuse if they didn't crack down on 
     teen smoking.
       To those who haven't followed this controversy, it may seem 
     an odd approach to the problem, to wit: If the states aren't 
     going to limit adolescent smoking, the feds aren't going to 
     let them limit drugs and alcohol abuse either. But so far at 
     least, it has the backing of tobacco foes, friends and 
     perhaps most important, Congress. Lawmakers opened the door 
     to such rules in 1992 when they signed onto legislation from 
     the late Mike Synar requiring states to prohibit the sale of 
     tobacco to persons under 18 years old.
       Congressional backing is what separates the HHS rules from 
     the far more publicized and ambitious anti-smoking campaign 
     launched in August by U.S. Food and Drug Administration 
     Commissioner David Kessler. Among other things, he would ban 
     mail-order and vending-machine sales and sharply restrict 
     tobacco advertising.
       Many lawmakers subsequently criticized Mr. Kessler for 
     overstepping his authority. Some 120 House lawmakers said in 
     a bipartisan letter to the agency, ``So, while we stand 
     steadfastly against tobacco use by minors, we strenuously 
     object to the FDA's effort to expand its jurisdiction and the 
     federal bureaucracy in dealing with a problem that Congress 
     has already designated to the states.'' Fifth District 
     Virginia Democrat Lewis Payne complained the FDA plan poses a 
     serious threat to Congress' legislative authority. ``Under 
     our system of government, it is the Congress, not unselected 
     bureaucrats, who are suppose to make the laws.'' A similarly 
     critical letter from 32 senators included Tom Daschle, the 
     Democratic minority leader, and Bob Dole, the Republican 
     majority leader, two men not often on the same side of an 
     issue.
       The irony of the situation is that Mr. Kessler's critics 
     can find plenty of support for their position from Dr. 
     Kessler himself. In a 1994 letter to anti-tobacco activist 
     Scott Ballin, the commissioner cited the complexity of 
     regulating cigarettes and added, ``It is vital in this 
     context that Congress provide clear direction to the 
     agency.'' Well, Congress has been abundantly clear. It wants 
     states regulating tobacco use by minors.
       Mr. Kessler went ahead last August and proposed to regulate 
     tobacco as a ``drug,'' which it has statutory authority to 
     control. But the agency's own internal documents from 
     previous administrations challenge that assessment. ``FDA's 
     longstanding position,'' said one, ``has been that, absent 
     therapeutic claims, conventional tobacco products are not 
     drugs under the [Food, Drug and Cosmetics Act].'' Said 
     another, ``In our opinion, however, providing the FDA with 
     the authority to regulate tobacco would represent a 
     significant change in the scope of its authority in providing 
     consumer protection.''
       To date, Congress has provided the agency no such 
     authority. By exceeding his own, Dr. Kessler undermines anti-
     tobacco statutes already on the books. Consider the example 
     he sets. If Dr. Kessler can't bring himself to abide by the 
     law, he is not in the strongest position to complain if 
     retail outlets and minors don't.

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