[Congressional Record Volume 144, Number 66 (Thursday, May 21, 1998)]
[Senate]
[Pages S5309-S5314]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL TOBACCO POLICY AND YOUTH SMOKING REDUCTION ACT

  Mr. McCAIN. Mr. President, I need to respond, of course, to the 
Senator from Oklahoma who somehow now regrets or complains about the 
fact that this legislation went through the Commerce Committee. My 
understanding is, unless I am having some mental lapse, that the 
decision was made by the leadership to move the bill through the 
Commerce Committee.
  My understanding is that was the instruction of the distinguished 
assistant majority leader and the other members of the leadership, to 
move it through the Commerce Committee, because it was clear it was not 
going to go through the other committees. Now the Senator from Oklahoma 
seems terribly distraught that it didn't go through the other 
committees when he was the major person to move it through the Commerce 
Committee.
  Mr. NICKLES. May I answer to that?
  Mr. McCAIN. I will be glad to yield, if the Senator from Oklahoma has 
a short question, because we are operating----
  Mr. NICKLES. I don't have a question. I want to respond.
  Mr. McCAIN. If you don't have a question, then I suggest you wait 
until the expiration of my time.
  The second point is that the Finance Committee did insist, insist, 
insist and got this bill, and they came up with a result that the 
Senator from Oklahoma didn't like. There were amendments pending, that 
is my understanding, in the Finance Committee--I was watching on C-
SPAN--that would have done even more damage to the legislation, at 
least from the viewpoint of the Senator from Oklahoma, who thinks that 
the bill is too encompassing, too large a tax increase, et cetera, 
which he has spoken at length about on this floor today. I am curious 
about what would have happened if the Finance Committee had kept the 
bill even longer.
  As far as the Agriculture Committee is concerned, the Agriculture 
Committee bill is in the bill as a result of the majority leader 
inserting it. The Senate will have its way on that.
  But I want to come back to the fundamental issue of the look-back 
provision. Mr. President, I didn't invent the look-back provision. It 
wasn't my idea. I have very talented staff and advisers and friends. 
The look-back provision came from the agreement that was entered into 
by the attorneys general of the 40 States and the industry.

  Have they changed? Yes, the look-back provisions have changed. Should 
they be changed back? Should I support the Durbin amendment? No, 
because I think it makes it worse. But the look-back provision concept 
was generated by the belief of every public health group in America 
that you can't trust the tobacco companies.
  Perhaps the Senator from Oklahoma and the Senator from New Mexico and 
others trust the tobacco companies and believe that they will really 
try to reduce teen smoking. They may do that, but most observers 
believe that after commitment after commitment and promise after 
promise and lying to Congress about the fact of whether they enticed 
kids to smoke or not, the fact is we found out they did. So the look-
back provision, I inform my colleagues, does not mean you have any 
connection with the tobacco industry, but you ignore the fact that the 
tobacco industry can't be trusted, and unless there are penalties 
involved, then the industry will not do what they say they will do, 
because they have already said they would try not to entice kids to 
smoke, and they did. That is the reason for the look-back provision.
  Philosophically, that may not be something that is acceptable to the 
Senator from Oklahoma, the Senator from Texas, or the Senator from New 
Mexico. But the reality is that is the view of every public health 
organization in America. Every living--every living--Surgeon General in 
America today has said you have to have these provisions in the 
legislation if you want to attack the issue of kids smoking.
  That is the view--and we have the letter, I have the letter from the 
Surgeons General, every Surgeon General since 1973. Perhaps those who 
oppose this know more than they do. I don't know, I don't know more 
than they do.
  With startling candor, Dr. Claude Teague set forth the plain facts 
about the addictive nature of nicotine in his chilling 1972 internal 
memorandum discussing the crucial role of nicotine. He said:

       Happily for the tobacco industry, nicotine is both 
     habituating and unique in its variety

[[Page S5310]]

     of physiological actions. Realistically, if our company is to 
     survive and prosper over the long term, we must get our share 
     of the youth market.

  ``We must get our share of the youth market.''
  I commend this to the reading of the Senator from Texas and the 
Senator from Oklahoma. It is clear that the tobacco companies attempted 
to entice youths to smoke. So, therefore, in the agreement made by the 
tobacco companies, freely entered into by the tobacco companies, there 
were look-back provisions. Perhaps the Senator from Oklahoma doesn't 
like the size of them, but it is hard for me to understand how he can 
argue against the rationale behind it.
  Another slip occurred----
  Mr. NICKLES. I will be happy to answer it.
  Mr. McCAIN. In 1987, just months before the national launch of the 
Joe Camel campaign, on October 15, 1987, a memorandum stamped ``RJ 
secret'' from a file that, incredibly, bears the name ``youth target'':

       Project LF is a wider circumference nonmenthol cigarette 
     targeted at younger adult male smokers, primarily 14- to 24-
     year-old male smokers.

  I can go through document after document for the Senator from 
Oklahoma. What I am asking him to understand is why these look-back 
provisions are there, because the tobacco companies tried to entice 
young people to smoke, and here are the documents. In the agreement of 
June 20, 1997, the tobacco industry admitted that they had enticed kids 
to smoke. Therefore, since they could not be trusted, then there should 
be provisions that penalize the tobacco companies if, indeed, youth 
smoking went up, which they are committed not to do. That is something 
in which they freely engaged.

  I can understand if the Senator from Oklahoma has a problem with the 
size of those look-back provisions. I cannot understand why the Senator 
from Oklahoma would not understand why the look-back provisions are 
there. When we talk about all the adjectives that the Senator from 
Oklahoma has described these look-back provisions, the facts are, 
according to every living Surgeon General, according to every public 
health organization in America, according to Dr. Koop, according to Dr. 
Kessler, according to every health expert in America, the fact is there 
has to be provisions that will punish the tobacco companies, as well as 
incentivize them to stop and reduce teenage smoking.
  Now that, I suggest, is reality. Again, I am not speaking from my 
knowledge and expertise. I am not speaking from my background. I have 
to go, when I don't know about issues, to the experts. It is rarely 
that I find experts who are completely in agreement on an issue, and 
every expert in America is unanimous in saying we have to have some 
provisions that punish the tobacco companies if they don't do what they 
say they are going to do.
  When the tobacco industry entered into the agreement, they promised 
to do everything they could to reduce teen smoking. That was part of 
the agreement they entered into. So how in the world somebody would say 
that when you swear to defend the Constitution of the United States 
that you would totally disagree with every health expert in America, 
frankly, is something I don't understand.
  These proposals have been pummeled pretty heavily for the last couple 
of days, including from the Senator from Texas who has been here quite 
awhile, and including others.
  I want to say, I am coming to respond to this because this 
legislation is based on an agreement the tobacco industry voluntarily 
entered into. It seems to me the Senator from Oklahoma's and the 
Senator from Texas' problem is not with this legislation, it is with 
the original agreement. And, frankly, they have every right to disagree 
with it.
  But the reason why many of the provisions were put in that 
legislation and were entered into was because the best minds in America 
on this issue said, ``You need look-back provisions, you need to 
restrict advertising, you need to have programs that have to do with 
youth cessation, you need to have research, you need to have funding 
for the NIH and the Centers for Disease Control. This is what you need 
in order to stop kids from smoking.''
  Mr. NICKLES. Will the Senator yield?
  Mr. McCAIN. Now, if you want--for a question, I would be glad to 
respond, which is the normal--
  Mr. NICKLES. The Senator used my name about 14 times. I would like to 
respond, because you made a couple allegations I resent and I would 
like to respond. But I would like to make a statement, not a question. 
I would like to make a statement. It would only take me about 4 
minutes. But I would like to respond since my name has personally been 
mentioned, I think, 14 times. I am counting.
  Mr. McCAIN. Of course the Senator from Oklahoma's name has been 
mentioned, because I am trying to respond to the Senator's statements 
about the legislation. If he would prefer I not mention the Senator 
from Oklahoma or saying a certain Senator, but I listened very 
carefully as a certain Senator attacked this legislation very strongly, 
in all candor and sincerity.
  Mr. GRAMM. Will the Senator yield?
  Mr. McCAIN. I am trying to respond to those comments that were made 
about the legislation. I think that is the normal give-and-take of 
debate here on the floor. I am saying that--
  The PRESIDING OFFICER (Mr. Sessions). The Senator's time has expired.
  Several Senators addressed the Chair.
  Mr. NICKLES. Mr. President, I will be brief. I know my colleague from 
Texas has been waiting to speak on the amendment. But there were a few 
things implied by my colleague's statements, the chairman of the 
Commerce Committee. He said, ``The Senator from Oklahoma doesn't agree 
with the look-back assessments that were part of the attorney general's 
agreement. And if the tobacco companies agree to it, why would he be 
opposed to look-back?''
  I was not part of that agreement. I think my colleague from Arizona 
once said, ``Why don't you introduce the tobacco settlement so we can 
mark up from that bill?'' I did not do it. The chairman of the Commerce 
Committee did. I did not do it because I was not comfortable with it. I 
did not do it because I do not want to introduce a bill that says 
tobacco companies will be exempt from class action suits.
  I did not do it because I looked at look-back assessments and said, 
``That's no way to tax.'' I think there is a right way to tax and a 
wrong way to tax. This is the wrong way to tax. And so to attack me and 
say that if I am against look-back penalties I am also against every 
health professional or expert is ridiculous.
  I think this is a crummy way to tax. I have told my colleagues, you 
want a tax? Tax. Call it a tax. Don't hide behind saying, ``It's a fee. 
It's an assessment.''
  I just read the attorneys general's deal with the tobacco companies. 
They did not say anything about having a survey and deeming it ``proper 
and correct'' and so on. My point being, I am not part of the deal that 
the attorneys general negotiated. They did not ask me. I am part of the 
Finance Committee, which is responsible for raising taxes. This 
Congress has already raised tobacco taxes. And if Senators want to 
increase them again, they have the right.
  We raised the tobacco tax last year. I did not vote for it. I do not 
know if my friend and colleague from Arizona did or not. But we 
increased tobacco taxes last year 15 cents. The increases have not gone 
into effect yet, but they will. They are on the books. And that is the 
way we should do it. That is the way the system works. This convoluted 
system of industry payments going up to $1.10, plus look-back penalty 
is wrong. Originally the look-back was $2 billion in the settlement, 
and then the Commerce Committee bill was $3.96 billion, and then the 
bill that was introduced on Monday that we have before us is $4.4 
billion. And then the amendment that was offered this afternoon goes to 
$7.7 billion.

  I am just saying this is not a workable tax. And I did not agree to 
the tobacco settlement. So my colleague from Arizona, I believe 
insinuated that I support the tobacco companies. I do not support the 
tobacco companies. I just think this is a crummy way to tax, and I 
resent this idea that whoever opposes look-back is supportive of the 
tobacco industry.
  Mr. McCAIN. Could I--
  Mr. NICKLES. That is not true.

[[Page S5311]]

  Mr. McCAIN. If I could comment, I in no way intended that----
  Mr. NICKLES. I appreciate it.
  Mr. McCAIN. In any way, that implication, I say to my friend from 
Oklahoma. I said on numerous occasions that his views on this are 
sincere and heartfelt. I hope the Senator understands that. And I say, 
I understand that my colleague from Oklahoma knows that I have been 
here for a number of days now, and there have been assaults not only on 
the bill itself but on the committee.
  You made some remarks about it, et cetera, and I just felt I would 
defend it. But at the same time, the Senator from Oklahoma is sincere 
in his beliefs, and they are held with integrity. And I do not in any 
way imply that there is any relationship there. I wanted to clear that 
up.
  Mr. NICKLES. I appreciate that.
  I am going to make two other very quick remarks. One, the negotiated 
look-back with the attorney generals was not product specific. And the 
amendment that we have before us goes to $5.5 billion in penalties on a 
product specific basis, which means we are going to do a survey on 
every tobacco product used by teenagers and assess penalties on every 
single product. Now, isn't that bureaucratic, isn't that a mess.
  I hope people will understand this is a big expense. And some people 
think it is a move in the right direction. I think it is a move in the 
wrong direction.
  Before my colleague from Arizona leaves, he said, ``Didn't Senator 
Lott ask Senator Nickles to head this tobacco effort up and pull all 
the committee Chairs together,'' and we then assigned the 
responsibilities to the Commerce Committee chairman?
  I say that when I was involved in this particular phase of it, that 
the linchpin of granting immunity--and I see that as a linchpin in this 
legislation fell to the Commerce Committee. If there was going to be a 
deal--and that is what the attorneys general's settlement was 
predicated on--the fact that if you grant tobacco companies limited 
immunity from class action suits, they will pay so many billions of 
dollars, about $15 billion.
  Now, conceivably, that could be put in the Commerce Committee. But I 
really believe that the Finance Committee should have jurisdiction over 
the tax. I have been upset about it ever since. I do think that if we 
are going to have a tax, we ought to call it a tax. We should not hide 
behind fees and we should not have look-backs assessments. I think 
these issues are the responsibility of the Finance Committee. And I 
think if we did that, we would tax tobacco just like we always taxed 
tobacco.
  I think the Commerce Committee, with all due respect, did a crummy 
job. Its bill has different prices for different brands of snuff. It 
exempts some tobacco companies from a tax. It hits other tobacco 
companies hard. I find that to be inequitable. I think the tax should 
be so much per product, and let us just say how much a pack it is, how 
much a can it is and how much a pouch, so people will know. I believe 
that very, very strongly. And so I communicate that to my friend and 
colleague.

  I appreciate the fact that my friend from Texas has been so patient. 
I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Mr. President, we have debated this thing all week. We are 
in morning business and we are carrying on the debate, so I guess it 
shows people feel strongly about it.
  I want to make it very clear what the issue is on this look-back 
provision. The Senator from Arizona acts as if by the tobacco companies 
agreeing to the procedure that somehow that sanctifies this procedure. 
The Senator from Arizona acts as if by the public health experts 
believing we should have a penalty that somehow that sanctions this 
look-back provision.
  My concern with the look-back provision is not that it is a penalty; 
my objection to the look-back provision is that it is clearly patently 
unconstitutional. And it is unconstitutional on two bases. No. 1, the 
Constitution, in article I, says it shall be the power of Congress to 
lay taxes. The most fundamental power of Congress is to tax. This bill 
delegates the power to tax to a public opinion poll and to the 
Secretary of the Treasury --clearly unconstitutional.
  Secondly, this bill puts a company in a position that if they have no 
control over the decision of a 14-year-old, and the 14-year-old makes a 
decision, that company can be punished for the decision of the 14-year-
old, even though there is no evidence whatsoever that they have had any 
impact on that decision. Clearly, that violates British common law and 
it violates the Constitution of the United States.

  So the point I am making is not that public experts don't have a 
position, not that tobacco companies don't have a position, not that 
the Senator from Arizona doesn't have a position, but there is a 
Constitution. When we all stood right down there below that first step 
and put our hand on the Bible and swore to uphold the Constitution 
against all enemies, foreign and domestic, we made a commitment, one I 
take very seriously.
  So the problem with this provision besides it being absolutely 
comical--who would have ever thought we would have a bill where you 
would do a public opinion poll, and based on what 12- and 13-year-olds 
say in a public opinion poll, you would have a pollster, in essence, 
empowered to raise taxes? Who ever heard of such a thing? Not only does 
this not pass the Constitution test, this doesn't pass the laugh test. 
This is one of the most absurd provisions I have ever seen.
  Now, granted, if our only defense of it is, well, the tobacco 
companies supported it, I didn't know that we had turned the writing of 
law over to the tobacco companies or the health experts or the public 
choice advocates.
  My point is, this provision is embarrassingly silly and 
unconstitutional. I would be ashamed to vote for a bill that had a 
provision in it where you let a pollster's finding trigger tax 
increases, rather than an act of Congress, where Congress, in general 
session, assembled, passes a tax bill that is signed by the President. 
That is the issue we have raised here--not who cut what deal and who 
signed off on what, but, basically, two very relevant tests: No. 1, the 
Constitution test; and, No. 2, the laugh test. I think this provision 
fails both of those tests.
  I think the more people know about these provisions, the less support 
there is going to be for this bill. To the extent that we draw public 
attention to this, perhaps we will come to our senses, and if we want 
to make taxes higher, make them higher. But don't empower some pollster 
to take over the constitutional powers of the Congress. It won't stand 
constitutional muster for a minute, and it makes us potentially the 
laughingstock of the public. That is what the issue was about--not that 
all of these so-called advocates for the public interest support the 
provision, not that the tobacco companies have endorsed it. The 
question is: Is it constitutional, and is it laughable? The answer is: 
No, and yes.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. Mr. President, the Senator from Texas has indicated that 
the bill is unconstitutional with respect to the look-back provisions. 
We have an opinion from the Congressional Research Service on the look-
back provisions, and this is what they say: ``We conclude that the bill 
which may be refined further in the amendment process does not appear 
to pose serious constitutional concerns and would seem to satisfy a 
showing of rationality and legitimate government action.''
  So while the Senator from Texas has determined this bill 
unconstitutional, the Congressional Research Service says otherwise. 
They say this bill is constitutional. They say that it will satisfy a 
showing of rationality and legitimate government action.
  We have heard a lot of arguments out on the floor today. We have had 
a number of Senators dominate the discussion, and, frankly, I had begun 
to wonder if they were afraid to debate and afraid to vote. That is 
what is going on here. We are in the ``stall,'' because some are afraid 
to debate and they are afraid to vote. They won't even allow a debate 
to occur out here on the floor. They reject any interchange, any 
discussion. Instead, they just want to give speeches to stall and 
delay.
  So, maybe it is time for us to have a debate. I don't know why they 
won't

[[Page S5312]]

come out here and debate. Let's have a debate, and let's see what the 
American people conclude after that.
  Now, we have heard all day that this is disproportionately affecting 
the lowest-income people. This is a levy on them. The first thing I 
point out is, people choose what they do. Nobody is going to pay a 
penny of tax if they don't go to the store and buy the cigarettes. They 
don't have to do that. There is no requirement to do that. This is no 
levy on their income; this is their choice.
  Our friends on the other side of the aisle talk about personal 
responsibility. This is a question of personal responsibility. It goes 
beyond that. Nobody is talking about the taxes imposed on all the rest 
of us who are expected to pick up the tab because this industry imposes 
costs on society that aren't being covered by them. Mr. President, the 
rest of us are being expected to pay taxes, to pay the Medicare bill 
estimated at $22 billion a year imposed by this industry. The Medicaid 
Program has over $11 billion a year of cost imposed on them because of 
this industry. That is not covered.
  How did we get here? We got here because State attorneys general sued 
the tobacco companies--sued them. And the basis for the lawsuit was, 
the tobacco industry was imposing costs on State Medicaid Programs. Of 
course, part of State Medicaid Programs is financed not only by State 
taxpayers but by Federal taxpayers. Federal taxpayers have had costs 
imposed on them because of the use of tobacco products. It is only fair 
to the vast majority of people who don't smoke that they have some of 
these costs relieved from them. Three-quarters of the people in this 
country do not smoke, and they are being expected to pick up the tab 
for the industry's actions, for what this industry has done. That is 
not fair. It is time to redress some of this balance. The three-
quarters of the people who get stuck with the bill each and every year 
say, ``Wait just a minute now. It is time for this industry to pay a 
fuller share of the costs it imposes in this society.''
  The best estimates we have are that the use of tobacco products costs 
this society $130 billion a year. Those are the costs being imposed by 
this industry. People smoke 24 billion packs of cigarettes a year. So 
the costs per pack being imposed on this society are $5 a pack. Those 
are the costs being imposed by this industry on all the rest of us. Who 
is paying that tab? Every other taxpayer, every single one that doesn't 
smoke, is being stuck with that bill.
  We are saying it is time for the industry to start paying a fair 
share of the costs that it imposes on this society and all the rest of 
us. That is just a matter of fairness.
  Now, why do we have look-back provisions? Senator McCain is precisely 
right: The reason there are look-back penalties imposed is because this 
industry has a history of going after young people. They try to addict 
them because they know they become lifetime smokers, and they know if 
they don't get them young and early, they don't get them.
  If there is any question about what this industry has done, let me go 
back to my top 10 tobacco tall tales. No. 7 was, ``Tobacco companies 
don't market to children.'' Here is their own document, a 1978 memo 
from a Lorillard tobacco executive. These are not words, these are the 
words from a tobacco company executive: ``The base of our business are 
high school students.'' That is the base of their business. They know 
what the base of it is. That is why they have been going after kids 
with their marketing and advertising campaigns for years.
  Tall Tale No. 8: Again, the claim, ``Tobacco companies don't market 
to children.'' Their own documents, a 1976 R.J. Reynolds research 
department forecast: ``Evidence is now available to indicate that the 
14 to 18-year-old-year-old age group is an increasing segment of the 
smoking population. RJR must soon establish a successful new brand in 
this market if our position in the industry is to be maintained over 
the long term.''
  What could be more clear?
  They are going after kids with advertising, with marketing, because 
they understand they are the base of their business.
  Tall tale No. 9: Again, the claim that the tobacco companies don't 
market to children.
  From their own documents, a 1975 report from Philip Morris 
researcher, Myron Johnston:

       Marlboro's phenomenal growth rate in the past has been 
     attributable in large part to our high market penetration 
     among young smokers . . . 15 to 19 years old . . . my own 
     data . . . shows even higher Marlboro market penetration 
     among 15-17-year-olds.

  This is why it is necessary to have a look-back provision. This is 
why it is necessary to say, if you do not achieve the goals for 
reduction of youth smoking, you are going to pay an economic penalty, 
because nobody knows more about marketing to kids and how to 
successfully hook them than the tobacco industry. They spend hundreds 
of millions of dollars learning how to effectively get across to them. 
And they are the only ones that have the best information, or I should 
say they are the ones who have the best information on what might work 
to allow youth smoking to decline. The best way to get an effect of 
what we are serious about here, reducing youth smoking, is to give the 
companies an economic incentive to achieve those goals.
  Unfortunately, in the McCain bill most of the penalty is given on an 
industry-wide basis. The Durbin amendment is seeking to shift that so 
most of the penalty is on a company-specific basis. Why? First, if you 
punish everybody equally you punish the good with the bad. 
Unfortunately, that is what the McCain bill does because they put most 
of the penalty industry-wide. It doesn't matter if you are a good 
company and you really achieve the goals for reducing youth smoking, or 
you are a bad company. You still pay the penalty. That is not 
individual responsibility. Frankly, that is socialism. That has 
everybody in the pot together, good or bad.
  Second, having a penalty that is largely based, industry-wide, 
creates a perverse incentive. With an industry-wide penalty, if a 
company does the right thing and reduces youth smoking, it still pays 
the penalty. In fact, it pays twice. It pays the penalty, and it 
suffers the loss of market share from not addicting young kids. What a 
perverse incentive that is.
  Mr. President, the third point that needs to be made is that because 
all the companies will pay the same surcharge, they can just treat this 
as a cost of doing business and pass that surcharge along to the 
customers.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. CONRAD. Mr. President, I ask for 1 additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CONRAD. Mr. President, it all boils down to the question at the 
bottom, which is, What are we going to do to reduce smoking in this 
country? Why is that the goal? Because we have 400,000 of our fellow 
citizens dying every year from smoking-related diseases. It is the No. 
1 health challenge in the country that is avoidable. It is No. 1. There 
is nothing else that kills this number of our fellow citizens. The 
estimate is for every three that are smoking, one will die of smoking-
related diseases.
  I have held hearings now all across America. Everywhere we have gone 
people have come forward and described the agony and the tragedy caused 
in American families by the use of this product. This is the only legal 
product in America when used as intended by the manufacturers that 
addicts and kills its customers. There is no other product that fits 
that bill. The only one, the only legal product, when used as intended 
by the manufacturer that addicts and kills its customers.
  People in this country are asking us to stand up and do something to 
help them--to help them keep their kids from using this drug, and a 
drug it is--to help them avoid the disability and death that attends 
the use of tobacco products. We are not going to prohibit the use of 
tobacco because we have 45 million people in this country that smoke. 
We don't have a very good history with prohibition.
  We can do something to help American families deal with the agony 
caused by the use of these products. We should not avoid the 
opportunity to act.
  I thank the Chair. I yield the floor.
  Mr. BIDEN addressed the Chair.

[[Page S5313]]

  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Mr. President, are we in morning business?
  The PRESIDING OFFICER. We are in morning business with Senators to 
speak for up to 10 minutes each.
  Mr. BIDEN. Mr. President, I thank the Chair.
  (The remarks of Mr. Biden pertaining to the introduction of S. 2110 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. BIDEN. I thank the Chair.
  Mr. DeWINE. Mr. President, I ask unanimous consent to proceed for 20 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, we are ready to close down the Senate 
tonight, and we are about ready to end, really, the debate on the 
tobacco bill for this week. This bill will be back in the Chamber. We 
will be debating it in the future. I think we got off to a very good 
start. No one ever said that this was going to be an easy bill. This is 
a very complicated bill. Congress is doing something we have never done 
before. It is very complex. So we knew going in it was not going to be 
easy.
  Nothing important ever is easy. It is important that we continue to 
push on because there is a lot at stake. I would submit what is at 
stake, really, is the future of tens of thousands of our young people. 
We all know the statistics. We all know what the facts are. We all know 
how important it is we stop young people from starting to smoke. We 
know the reality that if the child does not start tobacco use at 19 or 
20, hasn't smoked, the odds are the child isn't going to smoke. We also 
know most people start when they are young, start when they are way 
underage and it is illegal to smoke, cannot smoke if they do, and we 
know that is when they get started.
  We have heard the statistics. We know the statistics about the 3,000 
children starting to smoke every day. We know the statistics that 
roughly a third of them will die premature deaths, some horrible 
deaths, because of smoking. So I think we all know what is at stake.
  I think it is important as we complete this week to remind ourselves 
that, yes, it is tough. This is a tough bill. This is a tough world. 
This is contentious. But that is what we get paid to do. That is why 
people send us here--to make tough decisions. I think we need to remind 
ourselves that this really is a historic opportunity. It is a historic 
opportunity that has been presented the country, and has been presented 
this Senate, and has been literally put in our laps. We can either take 
up this opportunity and do what is right and do something very 
constructive, or we can pass it by. This is a historic opportunity. It 
was really given to us because of the settlement that was announced 
last June by tobacco companies and by the attorneys general, an 
unprecedented settlement, a settlement that cannot go into effect 
without a comprehensive bill passing the Senate, passing the House, and 
ultimately being signed into law by the President.

  Let me commend Chairman John McCain for the work he has done in 
bringing this bill to the floor. Let me commend him for the work he has 
done this week, keeping this process moving forward. It is clear that, 
if we are going to reduce teenage smoking, there has to be a 
comprehensive approach. It is like most things in life, there are no 
simple answers. If there were simple answers, we would have found them 
a long, long time ago.
  Raising the price of cigarettes, raising the price of tobacco, is an 
important element to reduce teenage smoking. There is an inverse 
relationship, clearly, between the cost and the use. But we also know, 
based on every study that we have seen, everything that we have looked 
at, I think most of us have come to the conclusion that raising the 
price of cigarettes alone will not do it, that we have to do other 
things. We have to stop the advertising for cigarettes that appeal 
directly to children--get rid of the Joe Camels, or those who will 
follow Joe Camel; get rid of the Marlboro Man; get rid of the cartoon 
figures; get rid of the advertising that any parent looks at for 1 
second and knows this is clearly targeted at children or, if it is not 
targeted at children, at least has a tremendous appeal for children. 
That has to be stopped.
  We have to have counteradvertising. We have to take all the ingenuity 
of Madison Avenue and use it, instead of killing people, use that 
ingenuity and use that talent to save kids. It is available, and it is 
out there, and we can do it.
  We have to worry about law enforcement. Again, it is no different 
than dealing with drugs in that respect. You have to have education, 
you have to have advertising, but you also have to have law 
enforcement. We risk, as we increase the price of cigarettes and 
tobacco, expanding the black market that already does exist in this 
country. We have to worry about that. We have to worry about the 
enforcement of the laws that every State has about underage smoking. We 
have to figure out better ways to enforce that law.
  So, we have to do all of these things. And as we proceed in the weeks 
ahead on this bill, and as we talk about it and we debate it and argue 
this point and argue that point, let's keep our eye on the ball. Let's 
keep our eye on the objective. For this Senator from Ohio, at least, 
there is only one objective, and that is to reduce the number of our 
kids who start smoking. If we can do that, if we can do it in 
significant numbers, we will have accomplished a great deal.
  That is what this bill that Senator McCain has brought to the floor 
is all about, and that is what we have to get accomplished. This is a 
historic opportunity. It is a unique opportunity.
  Let me talk for a moment, if I could, about the amendment that 
Senator Durbin and I have brought to the floor this evening. It is an 
amendment that we believe will make a difference. It is an amendment 
that will bring about more accountability, hold the tobacco companies 
responsible, make them liable for their actions, make them more 
accountable, and we think will make them do the right thing.
  Our amendment deals with what we call look-back. I think we have to 
keep in mind--I have had the opportunity to listen to a portion of the 
debate from some of my colleagues who followed Senator Durbin and 
myself, Senator Wyden--who spoke in favor of the amendment. I have 
listened to what some of my colleagues who have raised some questions 
about the amendment have had to say.

  In response, let me make a couple of comments. First of all, the 
people this is targeted at, the people we are targeting, are the 
tobacco companies. And the tobacco companies agreed to a look-back 
provision. They agreed to a very, very significant look-back provision. 
That was the provision which was included in the settlement that was 
announced last June. So they agreed to it. They are the ones who 
thought they could meet the 60-percent reduction target in 10 years, 
and that is a significant target. But they said, ``We can do it.'' So 
this isn't something that we dreamt up here in the Senate; this is 
something that the parties looked at, and all of them said, ``We can do 
it.'' And it is clear that they can.
  It makes sense, I think, what we have done in the Durbin-DeWine 
amendment. That is, we have taken John McCain's very good look-back 
provision, and I think we have improved it. We have made it more 
company-specific. What do you mean, company-specific? The original 
look-back provision was an interesting provision, really, in the sense 
that it was socialism. I don't know any other word to describe it.
  It basically said: Look, here are the targets. The tobacco companies 
agree on these targets. We are going to look back, after 3 years, and 
then after a few more, and ultimately after 10 years. And every few 
years, we are going to look back and see if the tobacco companies are 
hitting their targets in reducing teenage smoking. They said: We can 
get to 60 percent reduction in 10 years. And we phase that in--they 
phased it in, in their agreement, over that period of time.
  Every so often, we are going to look to see how we are doing. And if 
we determine that the reduction is not taking place, or the targets are 
not being hit, then the tobacco companies agreed--let me emphasize 
again--agreed that they would pay a penalty.
  The interesting thing is, when this was put together, however, how 
the

[[Page S5314]]

penalty was calculated. The agreement was that it would be calculated 
industry-wide. So you would look to see what the total reduction in 
teenage smoking was. And then, each company--you figure out what that 
total penalty was. It is the penalty the tobacco companies agreed to. 
You take that pot of money, that penalty pot, and you divide it up 
among the tobacco companies, based on their total market share. So if 
one tobacco company had 30 percent of the market, they would get 30 
percent of the cost of the penalty, irrespective of whether or not they 
were a leader in the sale of cigarettes to young people or whether they 
didn't sell a cigarette to a young person; it didn't make any 
difference.
  We looked at this and came to the conclusion that it really didn't 
make a lot of sense to base it entirely on that procedure. We came to 
the conclusion that the tobacco companies should be held accountable 
for what they did specifically. So we came up with this amendment with 
a variation of what Senator McCain had done, where he blended the 
penalties, basically making part of the penalties being applied 
industry-wide--that form of socialism we talked about--part of the 
penalties being applied case by case, company by company.
  We have kept a blend in the Durbin-DeWine amendment, but we put more 
emphasis on company-specific. We think it makes sense to hold the 
individual tobacco companies accountable for the reduction in their 
product that is being sold to kids. Now, some of my friends have come 
to the floor and said, ``Well, look, that's not really fair. Tobacco 
companies can't control what they sell to kids.''

  With all due respect, that doesn't make any sense. They control it 
today. They control it by their advertising. They control it by whom 
they target. They control it by how they market the product. There is a 
reason that Marlboro has 62 percent of the market. There is a reason 
they beat everybody else out in getting the kids market, the illegal 
sales market, the kids-under-18 market. They have been darned good at 
it. So we have seen, decade after decade, these companies being very 
good at this and being able to figure out how they can target a niche 
market and how they can get into kids who are just starting to smoke.
  To say that, now, if we give them an incentive not to do it, give 
them a disincentive and charge them not to do it and they agree not to 
do it, to say they can't control what they are doing makes absolutely 
no sense.
  My colleague from Kentucky came to the floor and asked, I think, a 
very legitimate question--Senator Ford. He said--I will paraphrase what 
he said, but, basically: Look, you are holding the tobacco companies 
liable. But the Government is going to be the one who is going to be 
doing the counteradvertising. And the Government is going to be doing 
other things to reduce teenage smoking.
  I think the answer to what Senator Ford said is, yes, that is 
correct, the Government is going to be involved in countermeasures. The 
Government is going to be involved in trying to reduce teenage smoking. 
But that doesn't mean the cigarette companies will still not be players 
and still will not have things that they can control.
  Make no mistake about it, under this bill or any of the different 
versions of this McCain bill, tobacco companies still are going to be 
able to impact how teenagers smoke, and whether or not their product is 
marketed to teenagers, and whether their product is sold to teenagers, 
and whether they target teenagers. How can they do it? Well, they can 
do it in many ways. They can do it by advertising. The bill has 
restrictions on advertising.
  Yet, advertising is still going to be permitted. So how they target 
that advertising and what kind of advertising they place and where they 
place it is going to clearly impact on whether or not young kids 
underage buy cigarettes.
  Tobacco companies will control that. They will control advertising. 
They will control how they market the product as they do today. They 
will control how they target the product as they do today. They can 
run, if they want to--and this is clearly within their control--their 
own antismoking campaigns aimed at kids. They clearly can do that.
  We hope the more money they spend on that, the more emphasis they 
will put on that, it will reduce the consumption of their own product. 
Clearly, how the tobacco companies market and advertise will impact 
youth smoking. They have some responsibility. We have to hold them 
accountable.
  My friends, particularly on this side of the aisle, always talk about 
accountability. We are in an age of accountability, whether we are 
talking about welfare or whatever we are talking about. We are in an 
age of accountability where people need to be accountable for their own 
actions. What the Durbin-DeWine amendment says is the tobacco companies 
ought to be responsible for their own actions; the tobacco companies 
ought to be judged not by what they say but by what they do. The 
tobacco companies ought to be charged and looked at and judged by what 
the results are. That is all we are saying.
  I find that to be a pretty conservative point of view, and a point of 
view that most of my colleagues on this side of the aisle always talk 
about and, I think, support. If we look at it in this way, this is, in 
effect, a very conservative amendment.
  Mr. President, the Durbin-DeWine amendment changes the incentives. We 
get rid of the profit motive. We give the incentive to prevent kids 
from smoking. We give that incentive to the tobacco companies.
  Another issue that was raised a few moments ago in regard to the 
general look-back provision which our amendment contains and the McCain 
bill does, of course, is whether or not these surveys are accurate. The 
statement was made or the assertion was made, ``How in the world can 
you hold tobacco companies liable for surveys?''
  First of all, they agreed to it. They agreed to it. They agreed to 
the broad survey of looking at the industry and looking at how much 
teenage smoking was occurring. They agreed to that.
  Second, these same tobacco companies rely on surveys to do 
advertising. They rely on surveys to do everything in regard to 
marketing. Mr. President, I don't think there is one of us in this 
Senate who has not come to the floor when we talk about illicit drugs 
in this country, not a one of us has not come to this floor and cited 
statistics based on surveys about whether the consumption of drugs 
among our young people is going up or going down. We take them at face 
value, we rely on them, we make policy based on them and we make 
decisions based on them.
  We have had a debate ongoing for the last 6 to 9 months in this 
Senate in which I have been involved on several different occasions 
where we have lamented the fact that among the very youngest of our 
children who are starting to use drugs, the consumption is going up at 
the same time the fear factor is going down. And we picked that up from 
the national surveys being done. Drug-Free Youth Group, we rely on that 
in our decisions.
  I think it is clear that surveys scientifically done, correctly done, 
clearly can tell us what percentage of the youth market is smoking and 
what percentage of the youth market is smoking Marlboros. There is no 
doubt about it. We can come within a very, very close percentage, a 
fraction of a percentage of getting that figure.
  Mr. President, let me conclude by again congratulating Senator McCain 
for bringing this bill to the floor. It is a comprehensive approach. At 
the end of the day, when all the days are over and this finally made 
its way through the Senate, if we are going to have something 
worthwhile, it has to be a comprehensive approach.
  We have to be concerned about driving up the cost, the price, because 
we know that will have an impact. We have to counter advertising. We 
have to have some control of the advertising and the cigarette 
companies ultimately need to agree to that.
  As this process goes through, it is sometimes not a pretty process, 
it is certainly not an easy process, but it is our process, a 
democratic process, and I remain optimistic that we will end up with a 
comprehensive bill that will reduce teenage smoking significantly, that 
will save lives and that will be a bill of which we can all be proud.

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