[Congressional Record Volume 144, Number 63 (Monday, May 18, 1998)]
[Senate]
[Pages S4952-S4954]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          TOBACCO LEGISLATION

  Mr. GREGG. Mr. President, possibly later today we will begin on this 
floor the debate and voting on the language relating to the tobacco 
settlement. This is obviously a fairly significant piece of 
legislation. It has the potential to represent one of the most complex 
pieces of legislation ever considered by this body--at least certainly 
in my time in Government. It also represents, potentially, one of the 
largest tax increases that this Congress will consider assessing. It 
represents a dramatic step in a number of different areas of law in 
which this Congress has toyed with but has never really fully 
participated.
  I want to talk about one specific area of that issue, which is the 
area of granting to a manufacturer of a product in this country product 
liability protection, or immunity, as the term has become known. There 
are a lot of products made in this Nation today, a lot of products made 
for the purpose of improving the lives of people, a lot of products 
made for enjoyment, products that are made to get us through a day, and 
products like tobacco. Most of these products--in fact, the vast 
majority of these products--have no special protection should they be 
produced in a manner that harms someone. And if an individual in our 
country is harmed by the use of a product, they have recourse through 
our court system. It is a very integral part of the free marketplace 
that an individual who buys a product have the ability to go into court 
and address the safety of that product as it affected that individual.
  Why is that critical? Because a long time ago we rejected the concept 
of caveat emptor in this country--that if you sell somebody a product, 
the person who buys the product assumes all the risk. In order to 
discipline the marketplace, in order to make sure we had a safe 
marketplace where things being sold in our country in the capitalist 
system would have some discipline in the quality of those items, we 
have developed a large amount of case law that allows an individual who 
thinks they have been impacted or can prove they have been impacted by, 
or harmed by, a product sold to them has a right to go into court and 
proceed to get recovery for that harm, if they can prove it.
  It is one of the really core elements that makes our marketplace 
work. It is one of the core elements that makes

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our Nation function as a dynamic economic engine. When we start 
addressing that issue of what rights an individual has in relationship 
to purchasing a product, we have to be very sensitive to the importance 
of maintaining the capacity of an individual to get redress in the 
court system. I say that in reference to the tobacco bill coming at us 
in an action that I think is absolutely inexplicable from the 
standpoint of maintaining a disciplined marketplace and from the 
standpoint of protecting individuals, which grants to the tobacco 
companies of this country--and internationally for that matter--
protection from lawsuits where they have harmed individuals.
  Why is this so outrageous, such an act of incomprehensibility from my 
standpoint? Because the product we are talking about here--tobacco--has 
three characteristics.
  First, we know that it kills people, and the tobacco companies that 
produced it knew and know that it kills people.
  Second, we know that it is an addictive product, and the tobacco 
companies that produced it knew it was addictive and, in fact, 
structured the product in such a way by putting a certain amount of 
nicotine into it, that they produced an even more addictive product 
than had they simply gone forward with pure tobacco.
  Third, the tobacco companies intentionally, purposefully, with the 
idea that they would create a larger marketplace, targeted the sale of 
their product on children.
  So we have a product that kills people, and the manufacturer of that 
product knew it; we have a product that was addictive, and the 
manufacturer of that product created it so that it would be addictive 
and knew it was; and we have a product where the companies that 
produced that product targeted children to try to produce a larger 
marketplace and a lifetime user once they get that child addicted--
knowing that it would kill the children as they grew older. Knowing 
that.
  And we have picked this product, with those three incredible 
characteristics that are applied to the tobacco industry, to be the 
first product to receive major protection--or we may pick this product. 
Hopefully, we won't. The bill coming before us chooses this product to 
be the first product to receive major product liability protection--to 
say to the companies that have produced this product that kills people, 
is addictive, and was targeted on kids: you will not have to pay the 
full cost of the harm you have created because the U.S. Congress is 
going to protect you, the tobacco industry, from the liability that the 
marketplace would force on you were we to go directly to the capitalist 
system which has dominated our country for over 200 years.

  It is an absolute outrage that we are considering pursuing this 
course of action as a Congress.
  Equally significant, I think, is the fact that we are doing this in a 
manner where we are claiming that we are actually harming the tobacco 
companies. This argument is being made in the marketplace of ideas 
around here that this tobacco bill is somehow, in some way, an attack 
on big tobacco, when with the immunity language in it, it is just the 
opposite--it is a protective blanket. It is an iron curtain of 
protection for big tobacco. And it is ironic that we put this immunity 
language on the table at the same time the tobacco companies have said 
they no longer will participate in the development of this settlement.
  This immunity language was originally designed because we said if we 
didn't have immunity--or somebody said it; I didn't say it--it was said 
that if immunity did not exist for the tobacco industry, the tobacco 
industry would not come to the table and limit its advertising directed 
specifically at children. Now the tobacco industry has said: The heck 
with you guys. We don't like the bill, we are walking out, and we will 
have no more to do with this. So you don't limit us in any way on our 
advertising. And still we go forward with a bill that gives them 
immunity.
  And for the immunity, what do we get? A tobacco industry that has 
walked away from the table. To begin with, we made a deal with the 
devil--or somebody made a deal with the devil. Now the devil has walked 
away from the table, and we find that this Congress is thinking about 
following the devil on its knees and saying: Please, Mr. Devil, take 
immunity, take it; we want to throw it at you even if you won't give us 
anything for it.
  It is beyond comprehension that we are considering pursuing this 
course of action, but we appear to be considering that. I just wanted 
to highlight that at this point because I think the debate has gotten a 
little topsy-turvy. It is a little topsy-turvy when a bill is giving, 
for the first time in the history of our Nation, and in the 
jurisprudence history of our Nation, product liability protection of 
immense value to an industry that has produced a product that is 
inherently deadly and is addictive and is targeted on kids--the first 
time we are going to do that, and that bill is, for some reason, 
perceived as being antitobacco. It is not antitobacco. It is actually 
very protobacco.

  Let's remember something else here as we think about this. We don't 
give this type of protection out easily around here. It took 6 years, I 
think it was--maybe longer--for us to give just a narrow little amount 
of protection to the airplane manufacturing industry for small planes 
because our airplane industry had been wiped out for small planes and 
nobody could buy a small plane made in the United States back in the 
mid-1980s. The whole industry had been wiped out by product liability 
litigation. So we put a little sliver of protection in order to 
resurrect that industry.
  That industry does not produce an inherently deadly product that is 
addictive and that is targeted on kids. It took us 6 years to produce 
that little sliver of production. That is the only product liability 
protection passed by this Congress since I have been here. We don't 
give product liability protection to the doctor who develops and 
creates a new valve for somebody's heart which gives that person an 
extra amount of life, or a new hip design that allows a person to have 
the freedom to walk again. We don't give any protection to those 
individuals. If those valves don't work and regrettably a patient is 
harmed, there is a lawsuit, and there is recovery. We don't give any 
protection to innumerable, hundreds, thousands, tens of thousands of 
products that are lifesaving products that are produced for the 
purposes of bettering the life of an American citizen, or citizens 
around this world, whether it is a drug product, whether it is a 
medical device product, or whether it just happens to be an automobile. 
We don't give any product liability protection. But the first product 
liability protection we are going to give, if we pass this bill, will 
be to an industry that is producing and that has produced a product 
that for years--maybe generations even--it knew was deadly, it knew was 
addictive, and at least in the last 10 or 20 years it has targeted on 
kids for sale. It is beyond comprehension that we would consider doing 
that.
  As we move forward in this bill, I certainly hope that we will 
reconsider that proposal, because what are we getting for that immunity 
protection? Absolutely nothing. The tobacco companies walked away from 
the table. We have gotten nothing. And I hope that we would reconsider 
that.
  There will be a lot of talk about the fact, well, there is 
protection. It isn't really protection because there is a $6 billion, 
$8 billion--we don't know. We haven't seen the final language. The 
language is being written right now. It is being shifted around--I note 
for the press that might be listening, if there is any listening--
shifting the language all around this bill, because it will be very 
difficult to target the immunity language in this bill. They are 
intentionally trying to make it procedurally very difficult to go after 
this language. But they keep shifting the numbers around, too. But the 
number is almost irrelevant because you are dealing with an industry 
that has the capacity to produce the profit to pick up the number. You 
would have to put out a fairly astronomical level to have any 
significant impact on the profitability over the long term of this 
industry.
  You are giving this industry, as long as you give them immunity, the 
right to go out in the marketplace and sell this product and target it 
on kids. That is what you are doing. You are giving them the right to 
sell a product that

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kills kids, kills people, is addictive, and is targeted on kids. It is 
just absolutely inexcusable that we would consider doing this.
  I certainly hope to be able to offer amendments that strip this out 
of the bill. It will be difficult because there are a lot of 
parliamentary games going on around here right now. But it would be my 
hope that we could accomplish that.
  Mr. President, I yield such time as I may have.

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