[Congressional Record Volume 144, Number 62 (Friday, May 15, 1998)]
[Senate]
[Pages S4932-S4934]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   DETERRING TEEN SMOKING: WHAT WORKS

  Mr. DeWINE. Mr. President, this coming Monday, the Senate will begin 
historic debate on tobacco legislation. This debate represents a once-
in-a-lifetime opportunity to reduce teenage smoking, a once-in-a-
lifetime opportunity to save lives.
  The window of opportunity opened by last year's tobacco settlement is 
closing fast, and that means we simply have to keep this process 
moving. We have to pass a comprehensive bill and we have to pass it 
now.
  A comprehensive bill, Mr. President. That means we have to raise the 
price of tobacco. But it means much more than that alone. It means a 
public education campaign. It means limits on tobacco advertising. It 
means punishing tobacco companies if, in the future, we do not meet the 
goals we set for reducing teen smoking. Finally, it means enhanced 
enforcement so a black market does not develop.
  There will be a great temptation as we go through this lengthy debate 
for us to get sidetracked over the coming weeks into debates on 
countless side issues. It is important that we not give in to that 
temptation. We need to keep our eyes firmly on a much larger goal, and 
that goal is saving the lives of America's children from tobacco and 
from illegal drugs. Frankly, the only way we can achieve this goal is 
to pass a comprehensive bill, a comprehensive bill that is focused on 
our one goal, reducing tobacco and drug use among our young people. For 
the reasons that I will outline in a moment, a piecemeal approach 
simply will not work. A piecemeal approach will fail.
  I commend the majority leader, Senator Lott, for his leadership in 
bringing this matter to the Senate floor. Now it is up to all of us to 
make the most of that opportunity. That is what I want to talk about 
today.
  When a problem generates this much attention, we have to be all the 
more vigilant to make sure we pay attention to the light rather than to 
the heat; the facts, not the rhetoric.
  Fact: 3,000 children start to smoke every day.
  Fact: 1,000 of them are going to die early as a result of that.
  Fact: We now have a once-in-a-lifetime opportunity to save these 
lives, a once-in-a-lifetime opportunity to do this through 
comprehensive legislation to reduce teenage smoking.
  Fact: The number of legislative days we have left in this session in 
which to do this is rapidly shrinking.
  Fact: If we do not do this now, it may never happen. The opportunity 
may never come again.
  Fact: 1,000 early deaths caused every day by smoking. We need to act 
and we need to act now.
  These are the facts. We cannot allow tobacco companies to lie about 
these facts or to obscure the fact that tobacco and illegal drugs 
together pose America's greatest public health challenge to our 
children. This is a huge challenge to our future. And we need a truly 
comprehensive approach to meet this challenge of tobacco and of illegal 
drugs.

  What I would like to do over the next few minutes is examine some of 
the elements of the proposed tobacco legislation in a serious, and 
maybe even clinical, manner in an effort to try to determine which 
approaches work best in reducing smoking among our young people.
  What works, Mr. President? What works to reduce teenage smoking? That 
is the key question. In fact, it is the only question that we should 
focus on as we debate tobacco legislation.
  Let me begin by discussing the most controversial element of the 
various proposed tobacco bills--a tax on cigarettes.
  Mr. President, the question of whether tobacco taxes will work in 
reducing teen smoking comes down to the question of how sensitive teen 
smokers are to changes in price. The way the economists phrase this 
question is: How elastic is the demand? How responsive is it? Does it 
go down when prices go up?
  Mr. President, writing tobacco legislation would be a very easy task 
if the demand were very sensitive and responsive to prices. Then all we 
would need to do is increase the cost of a pack of cigarettes, and kids 
would stop smoking and their lives would be saved, and that would be 
it.
  Regrettably, it is not that simple. Reputable individuals and 
organizations in the field of public health have studied this very 
question and are certainly far from a consensus.
  In 1991, a study published in the Journal of Health Economics 
concluded that there is no statistically significant correlation 
between cigarette prices and youth smoking. However, a National Cancer 
Institute expert panel stated in 1993 that ``a substantial increase in 
tobacco excise taxes may be the single most effective measure for 
decreasing tobacco consumption,'' and that ``an excise tax reduces 
consumption by children and teenagers at least as much as it reduces 
consumption by adults.''
  Mr. President, the confusion continues. The Centers for Disease 
Control and Prevention have data indicating that in five of the six 
States that raised cigarette taxes between 1993 and 1995 that teen 
smoking actually increased.
  Yet, two reports published by the Surgeon General in 1994 and 1998 
reached the opposite conclusion--that young people are at least as 
sensitive to price increases as adults.
  Take all of these different findings together and they raise very 
serious questions about a tobacco-fighting strategy that is anchored 
solely by tax increases, or by an increase in the cost of cigarettes.
  Here is what I think, Mr. President, based on my experience in 
working over the years against illegal drugs, based on my experience in 
working against driving under the influence of alcohol, that crusade, 
that effort: There is no one single remedy. There is no one single 
solution. I believe that raising tobacco costs will have an impact, but 
will only have an impact if that is included as part of the 
comprehensive approach, if the increase in tobacco prices is 
accompanied by advertising, by counteradvertising, by pulling down the 
pro-tobacco advertising on TV, by strict law enforcement. All of these 
things, I believe, have to come together. You cannot succeed in this 
effort without that kind of comprehensive approach. Raising the cost of 
tobacco will help, but it is simply not enough. To meet this kind of 
challenge, we need a comprehensive approach, one that will harness many 
different elements in the common purpose of saving children's lives.

  In addition to raising the price of cigarettes, what else must we 
include in that comprehensive package? I outlined that a moment ago, 
but I would like to talk now in a little more detail about some of the 
other things that I think are necessary to do in addition to increasing 
the price of cigarettes.
  Public education. Let's start with public education. My own 
experience with public education on health issues, Mr. President, would 
indicate to me that it does, in fact, work. Let me give you and my 
other colleagues an example.
  Over the last several decades, we in this country have made 
tremendous progress in making our streets safer from alcohol-impaired 
drivers. Back when I was in the Ohio State Senate, I wrote legislation 
toughening our State's law on driving under the influence. But even 
more important than

[[Page S4933]]

the laws we passed was the fact that we were able--all of us, 
collectively, working together--to begin to change public attitudes. 
This has been done by tough laws, but it has also been done by very 
effective advertising by groups such as the Mothers Against Drunk 
Driving.
  It was a national campaign, and it made a difference. Talk to kids 
today and you will not find many who believe that driving while under 
the influence of alcohol is ``cool'' or a great thing to do. The people 
who do it today are treated with scorn, as they should be. See how 
often ``designated drivers'' are talked about today--a concept that 20 
years ago nobody had ever heard about. Attitudes have been changed 
because of advertising. They have been changed because of what public 
officials--not just politicians, but people in the public sector--have 
been able to do and talk about. We have all, collectively, been able to 
change the culture. That is what we have done in regard to drinking and 
driving. That is what we have to do now in regard to teenage smoking.
  I think we have to implement a similar strategy in regard to tobacco. 
We have to make a massive national investment in educating our young 
people and in changing attitudes. We should flood the airwaves with the 
truth--a positive advertising and education campaign to leave no doubt 
where America stands on this issue, to leave no doubt what the facts 
are. Tobacco and the use of it may be legal, but it still kills people. 
Our message must simply be: stay away from it.
  Mr. President, we can do this. We have done it in other areas, and 
everything in our life and common sense indicates to us that it works. 
Those of us who are Members of the U.S. Senate, every single one of us, 
use a significant amount of TV advertising to get elected. Why did we 
do it? We did it because it works. Why do all the major products use 
advertising? Because it works. Why do all the national efforts in 
regard to drunken driving use this very creative type of advertising? 
Because it works. That is what we have to have in regard to this 
tobacco situation.
  Let me talk further now about another element, a third element, in 
regard to this comprehensive package that I think has to be part of the 
bill that we finally approve. That has to do with limiting the type of 
tobacco advertising. The third proposal to reduce teenage smoking is to 
regulate the broadcast media in an effort to block the pro-tobacco 
message. We begin to run into some constitutional problems here, which 
I would like to discuss. The more constitutional lawyers look into this 
suggestion, the more problematic it becomes. Basically, it is going to 
be hard to achieve this objective without the agreement of the tobacco 
companies. I think we have to understand that.
  In recent years, the Supreme Court has struck down as many as a dozen 
laws attempting to regulate commercial speech. In effect, the Court is 
reminding those of us in the legislative branch that the first 
amendment's guarantee of freedom of speech is an important 
constitutional value. As we look for national solutions to the tobacco-
spawned health crisis, we would do well to remember that Congress 
cannot unilaterally restrict speech.
  Specifically, the Court would most likely apply to any of the 
proposed limits on tobacco advertising the four-pronged test 
established by the 1980 case of Central Hudson Gas & Electric 
corporation versus Public Service Commission.
  And it is more than likely, Mr. President, that the proposed limits 
would fail the tests laid out in that case--unless we had the agreement 
of those whose speech we seek to limit.
  Those are the facts.
  Under Central Hudson Gas, the first test to determine whether 
commercial speech is Constitutionally protected is: Is the speech 
false, misleading, or unlawful?
  Mr. President, the days are long gone when tobacco could run ads 
saying that smoking is good for your health. Those old advertising 
campaigns may have failed this test. I think today's campaigns are 
clever enough--and empty enough--not to make any false claims, at least 
under that court decision.
  The second test is: Does the limit on speech serve a substantial 
government interest? This is closely related to the third test: Does 
the limit on speech directly advance that substantial interest?
  And on these tests, Mr. President, the weight of Constitutional 
opinion is against unilateral limits on tobacco advertising. Two of 
America's foremost Constitutional scholars have testified in Senate 
hearings on this issue.
  Floyd Abrams--America's leading expert on First Amendment law--told 
the Commerce Committee, and I quote:

       Any legislation of Congress which would purport to do by 
     law what the proposed settlement would do by agreement in 
     terms of restricting constitutionally protected commercial 
     speech is, in my estimation, destined to be held 
     unconstitutional. * * * It is a basic tenet of First 
     Amendment law that * * * the interest in protecting children 
     from harmful materials ``does not justify an unnecessarily 
     broad suppression of speech directed at adults.'' * * * The 
     sweep of the proposed settlement's restrictions on speech are 
     simply not tailored to its supposed aim of protecting 
     children.

  And Harvard's Laurence Tribe--author of one of America's most 
influential Constitutional law textbooks--testified before the 
Judiciary Committee that, quote, ``the proposed restrictions on tobacco 
advertising would raise very serious First Amendment questions if they 
were to be enacted into law by Congress.''
  The fourth and final test under this case asks: Is the limit on 
speech no more extensive than necessary to achieve the goal? On this 
too, the critics will note that if the same goal of reducing smoking 
can be achieved without recourse to speech limits, then the 
Constitutional claims of the speech regulators would fall.
  Let me stress, Mr. President, that I am not talking about my own 
opinion of the Constitutionality of these measures. That would be a 
subject for another speech, another day. What I am talking about is the 
immense practical problem posed for us, by the likely opinion of the 
U.S. Supreme Court based on those previous decisions.
  It's likely that the Supreme Court would find these unilateral 
measures unconstitutional.
  The tobacco companies would love that. They would love to change the 
subject. We must not allow them to do that.
  Remember the goal: We are trying to save children's lives. We are 
driving toward the end zone in the fight against these tobacco 
companies. We must not--must not--let ourselves get trapped into 
incurring useless penalties on the way.
  This fight is too important--we cannot let it be reduced to passing 
legislation that will never be enforced. Our goal is to pass effective 
legislation--not legislation that will tie up our anti-smoking measures 
in court for years and years.
  It's about results. It's about saving lives. We have to remember 
that.
  Let me now turn to a fourth and final element in proposed tobacco 
legislation--the lookback provision. In my view, Mr. President, the 
lookback provision is a key component of any solid and effective 
antitobacco bill. It's a way to hold the tobacco companies liable for 
the bottom line on this effort to reduce teen smoking.
  Put simply, Mr. President, the lookback provision says to the tobacco 
companies: If we fail to achieve our goal of substantial reductions in 
teen smoking, you--the tobacco companies--will pay. You will pay. You 
will pay a lot. We think that will serve as a deterrent. We think, Mr. 
President, that will affect the future conduct of tobacco companies.

  Now, on this one too, Mr. President, the constitutional lawyers are 
raining on our parade. They point out that the kind of lookback 
provision we need may well run afoul of Constitutional guarantees of 
substantive due process. They could hold the tobacco industry liable 
for actions and results not strictly under the industry's control--and 
thus be Constitutionally inadmissible.
  But I think the solution to this problem--and indeed to that of the 
First Amendment problem with ad limits--is relatively clear. The 
government may not be able to do these things by itself. But it can do 
them, if the industry agrees to them voluntarily.
  This, Mr. President, gives us--public officials who are concerned 
with public health--an incentive to insist on a comprehensive solution, 
and not a piecemeal approach.
  Acting unilaterally, we can punish the tobacco industry. And let me 
make

[[Page S4934]]

clear--there's a great deal to be said for that. Their product has 
destroyed lives.
  But if we act not unilaterally, but instead approve a comprehensive 
solution, then we can harness all our efforts in the interest of the 
public good. And we can hold the tobacco companies accountable 
for helping reduce teen smoking.


                               conclusion

  Mr. President, America's attention is engaged by a children's health 
crisis caused by tobacco and illegal drugs. This is a rare and unique 
opportunity for us here in the Congress to create some positive 
change--change that will save lives. We owe it to the American people 
to write tobacco legislation that represents the best thinking on what 
will really work to get kids to turn away from tobacco and illegal 
drugs, and toward a more promising future. I will continue to work 
throughout our legislative process to make sure the bill we pass lives 
up to what the American people deserve.
  I hope the President of the United States will become more involved 
in this struggle. This, frankly, is an issue of great national 
importance--one that cries out for Presidential leadership.
  Mr. President, even after we pass a bill in the Senate, there will 
still be a lot of work left to be done on this legislation--and frankly 
and candidly, it won't get done until everybody sits at the table and 
gets ready for some heavy lifting.
  This includes the leadership of the Senate and the House, of course, 
and also the President of the United States. The President can make a 
huge difference in this process once he becomes fully engaged.
  Finally, Mr. President, I remain optimistic that we can pass a strong 
and comprehensive bill, not just to reduce teen smoking but also teen 
drug use. Last year's settlement through the States' attorneys general 
and tobacco companies has given us a once-in-a-lifetime opportunity.
  As this legislation moves through Congress, I believe we have to stay 
focused. We have to stay focused on the issue of saving children's 
lives. Let's vow to put together comprehensive legislation that really 
works. Let's do it now. And let's get it done. Mr. President, it will 
not be easy.
  I again congratulate the majority leader for his leadership and for 
his courage in bringing this bill to the floor.
  I congratulate all who have worked on this bill and other bills--
Senator McCain, who has worked on this bill and brings this bill to the 
floor; Senator Hatch and others who have worked on other bills and 
other approaches. We are all going to have the opportunity next week to 
have our shot. We are all going to have our opportunity to work to try 
to fashion a good bill.
  The main thing, however, is that we keep the process moving, that we 
keep it moving in the Senate, that we pass a bill that is 
comprehensive, that is practical, that we send it on to the House of 
Representatives, and ultimately then get it into a conference committee 
and to the President of the United States.
  Frankly, it is only going to be at that time that tough, tough 
decisions are ultimately going to be made and that the package will 
finally be put together. But if we do not do our work in the Senate, if 
we do not keep the process moving, then we will have missed this 
historic opportunity. So the ball is in our court beginning next week. 
I fully expect the Senate to take up the bill, and I expect us to do 
what is in the best interests of our children and in the best interests 
of the future of this country.
  I thank the Chair and I yield the floor.
  Mr. President, at this point I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ASHCROFT. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sessions). Without objection, it is so 
ordered.
  Mr. DASCHLE. Mr. President, might I inquire as to the nature of the 
proceedings of the Senate.
  The PRESIDING OFFICER. The Senate is conducting morning business. 
Senators are recognized for 5 minutes each.
  Mr. ASHCROFT. Mr. President, I ask unanimous consent I be allowed to 
speak for up to 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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