[Congressional Record Volume 144, Number 72 (Friday, June 5, 1998)]
[Senate]
[Pages S5686-S5688]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        THE TOBACCO LEGISLATION

  Mr. KYL. Mr. President, I want to discuss today the matter pending 
before us, S. 1415, the tobacco legislation. It is, as we have been 
told by many people, one of the most expensive, complex, far-reaching 
legislative proposals ever considered by the U.S. Senate. The stated 
goal of the proposal is, of course, nonpartisan and universally 
recognized--the reduction of teenage smoking. We all agree on that.
  What a parent wants is for his or her children to grow up healthy and 
strong. No parent really desires that their children become addicted to 
tobacco use. The issue is, what is the best way of achieving that goal, 
to go about discouraging teen smoking and highlighting the dangerous 
health risks associated with tobacco while also preserving individual 
adult liberties.
  At the Federal level, I think we should also remind ourselves that 
underage smoking is, at this time, illegal in all 50 States by State 
law. I think that as the Senate considers this legislation, we should 
keep some fundamental principles in mind and they should be part of any 
legislation we should eventually adopt.
  Specifically, I think our legislation should include the following 
components:
  One, we should ensure that teen smoking is reduced. There are a 
variety of mechanisms for doing that, including making vending machines 
inaccessible to children, conducting an advertising campaign 
specifically directed toward children's tobacco use. I think we should 
ensure that any tobacco tax increase does not create a black market. It 
is very difficult to know the magic point at which you have raised the 
price enough to discourage its use without having, however, raised it 
so much that you create a black market. I think it is probably very 
difficult to do that, as testimony before the Senate Judiciary 
Committee has confirmed.
  I think we need to ensure that proceeds raised by any tax increase 
are primarily used for health-related purposes, such as Medicare, 
research for NIH, reimbursement to the States for their Medicaid 
expenses, particularly associated with tobacco illnesses, and 
increasing the self-employed health care tax deduction to 100 percent. 
In that regard, incidentally, if there are excess moneys left over from 
a tax, I think we should return it to the people. We could do that, 
among other ways, by significantly reducing the marriage penalty which 
is currently built into the Tax Code, that proposal already having been 
made by Senator Gramm.
  I think another principle that should be embodied in this legislation 
is to ensure that proceeds not be used to create new, or expand 
existing, non-health-care-related Federal programs. One of the worst 
things this body could do is to impose a huge new tax ostensibly 
relating to tobacco use and curing its effects but, in fact, generating 
money to serve totally unrelated purposes, as some of our colleagues 
suggest. That would be wrong.
  I think another principle that should be embodied in any legislation 
we adopt is that attorneys involved in the litigation regarding tobacco 
not reap windfall profits at the expense of these education and smoking 
prevention programs, particularly when they are established for kids.
  Finally, I think we should ensure that no provisions are included 
that are virtually certain to later be adjudged to violate the first 
amendment's protection to speech or other constitutional provisions.
  Mr. President, the rest of the time I would like to address the link 
between tobacco use and drug use, especially by children, because while 
there has been much legitimate concern expressed about the dangers of 
teenage smoking--and about that, as I said, I think there is no 
disagreement--I think there has been insufficient attention paid to 
children's use of drugs and abuse of drugs and the Federal Government's 
responsibility to deal with that problem as well. There is an even 
greater danger of drug addiction, and the relationship between tobacco 
and drugs makes it clear that, in dealing with one, we can and should 
deal with the other. I think our outrage should have some perspective 
here, and if it does, we should all agree that drug use among children 
is much more dangerous than tobacco use, as bad as it is.
  Now, I noted the connection between the two. Ironically, it appears 
to work both ways. For example, we have known for some time that 
cigarette smoking is often a precursor to drug addiction. So, 
obviously, this is another reason to deal with the problem of youth 
tobacco use. For example, a survey by the Substance Abuse and Mental 
Health Administration reported that almost 75 percent of teens surveyed 
had tried cigarettes before marijuana. Moreover, a 1996 national health 
survey on drug abuse showed that current smokers are more likely to be 
heavy drinkers and illicit drug users.
  Equally disturbing is the apparent innovation by youth in combining 
tobacco and drugs. For example, some teens are now smoking cigarettes 
after they smoke marijuana in order to enhance their high. I learned 
last night that the reason for this is that apparently the methanol in 
some cigarettes physiologically allows greater absorption of the THC in 
marijuana and therefore does prolong or enhance the high. Others hollow 
out cigars and replace the tobacco with marijuana in order to maintain 
a better high. This behavior illustrates the undeniable connection 
between tobacco and drugs. For this reason, I support linking our 
effort to reduce teen smoking with that expanded antidrug effort.

  I believe we have to keep in mind recent polls which show that the 
parents of this country are much more concerned about drug use than 
tobacco use. Their No. 1 fear is their children will become involved in 
illegal drug use. By contrast, in the May 1998 survey published by The 
Polling Company, a very recent survey, parental concern about juvenile 
tobacco use ranks No. 6 on the list. Only 3 percent of the parents 
cited that, whereas with respect to the No. 1 concern, drug use, 39 
percent of the parents mentioned that as their primary concern with 
respect to their children.
  According to Centers for Disease Control research, recently speaking 
to the New York Times, some kids maintain an illegal drug high by using 
tobacco, the same point that I had made earlier. And, obviously, what 
this means is for these kids illegal drugs are the gateway to tobacco 
use, and not the reverse, as I indicated earlier.
  Drugs should be taken at least as seriously as tobacco. The two are 
undeniably linked. In dealing with one, we should deal with the other. 
I believe, therefore, that our effort to reduce teen smoking has to be 
tied to a renewed Federal commitment to reduce marijuana, cocaine, 
heroin, and methamphetamine use among both youth and adults. 
Incidentally, if we do that by a comparable amount, we will be 
reflecting the purpose of the Ashcroft proposal that has been presented 
to the Senate.
  Let us look at some of the disturbing statistics. Prior to 1992, 
illegal drug use by high school seniors had fallen sharply, from 30 
percent in 1985 to 14 percent in 1992. This is a very important 
statistic, because today people say we are losing the war on drugs, we 
can't win it, and therefore we ought to give up. Obviously, if we had 
said the same thing about tobacco use, we wouldn't be engaged in this 
important effort today to try to reduce tobacco use. But the people who 
say we have lost the war on drugs are wrong because of the statistic 
that I just cited. Once this country became engaged in the war on 
drugs, particularly trying to reduce the use of drugs in schools, the 
use by schoolkids of drugs dropped dramatically. It was cut in half.
  Again, remember the statistics I am talking about. When we began this 
effort in about 1985, remember we created a drug czar's office, and 
Bill Bennett and others went out and campaigned fervently against drug 
use by kids. From 1985 to 1992, illegal drug use by high school seniors 
fell from 30 percent to 14 percent. So we were clearly making progress. 
We had made substantial progress. We were doing good.
  What happened after 1992? The process reversed. And, frankly, the 
reason for that is inattention, and in some

[[Page S5687]]

cases downright hostility to the effort by the Clinton administration, 
and only recently reversed by the appointment of Gen. Barry McCaffrey 
as the drug czar. I think we can see that once we began to reassert our 
effort, we have begun to just barely see a little bit of progress.
  During the first Clinton administration, illegal drug use among high 
school students doubled. Heroin use for 8th and 12th graders has more 
than doubled in the last 5 years. By 1996, one in four high school 
seniors and sophomores reported using drugs in the previous 30 days; 15 
percent of 8th graders reported using drugs in the previous 30 days.

  So the point of these statistics is that once we became engaged in 
the war on drugs, we dramatically reduced their use by kids. We cut it 
in half. What happened when we stopped? It went right back to where it 
had been.
  Equally disturbing about our inattention to this problem over the 
last 5 years is the fact that, as a result, drug users are getting 
younger and younger. A survey last year by the Center for Addiction and 
Substance Abuse at Columbia University showed that 500,000 eighth 
graders began using marijuana in sixth and seventh grades. As we all 
know, there are more victims, incidentally, in this drug use than just 
the user because, of course, drugs are linked to crime. According to 
the Bureau of Justice Statistics, 36 percent of convicted jail inmates 
said that they were using drugs at the time of their offense in 1996. 
That was compared to 27 percent in 1989.
  So by a third we found more drug use among those people committing 
crimes. Moreover, 16 percent of convicted jail inmates said they had 
committed their offense to get money for drugs. We believe the 
statistics are much higher. But at least it is astonishing that that 
number would admit that they committed their crimes in order to get 
drugs. We know one in four property and drug offenders had committed 
their crimes to get money for drugs. And in a place like Arizona, where 
you have such high property crime rates, we know the strong connection 
between the two. In my hometown of Phoenix, for example, we lead the 
country in another kind of theft--postal theft by addicts in order to 
get money.
  According to the postal inspector, 90 percent of these thefts are 
committed by meth addicts. It is their preferred method of maintaining 
their high.
  I also note, Mr. President, that in reminding ourselves of the 
connection between drug use and crime, to make the point that drug use 
is not a victimless crime, we should also think of the individual drug 
user and his or her family.
  I recently held a field hearing in Phoenix primarily on the subject 
of methamphetamine use and the costs to society of having to clean up 
the meth laboratories and the environmental concerns and the dangers to 
people as a result of these toxic substances in their midst. But one of 
the witnesses was a young woman named Heather, a student, who told us 
about her beginning the use of drugs, starting with a free offer of 
drugs when she was in grade school, and working on up through the use 
of harder and harder drugs until, by her own words, she was a ``mess'' 
by the time she was in high school. She noted the fact that she wasn't 
the only person who was affected by her drug use. Her friends, her 
family, and, in particular, her mother were deeply affected by what she 
went through and what they had to bear as a result of her drug use. 
Fortunately, she was one of the ones who decided to try to kick the 
habit, and, after several difficult tries, appears now to be on a path 
of recovery and abstinence and of getting her life turned around.
  But it is a terrible, terrible struggle for anyone, but certainly 
including kids who have become addicted to drugs, to try to get off of 
the drugs and turn their life around. In the context of the tobacco 
debate, I just ask everyone to think about this for a minute. We all 
get used to doing certain things that we know aren't good for us. It is 
hard to change our habits. We all, most of us at least when you get to 
our age, would like to lose a little more weight. We don't like the 
fact that gravity has its inevitable impact on our bodies, and we begin 
to not quite look like we did when we were 20 years old. We would like 
to eat a little less and have more self-discipline about our weight. It 
is hard to do. We would like to discipline ourselves to do other 
things. It is hard to do. We get to tobacco use, and we know it really 
becomes hard because there are physiological addictive qualities to 
nicotine that makes us crave tobacco. For many people, it is very, very 
hard to stop using tobacco as a result of that addictive quality. But 
as hard as that is, it is orders of magnitude more difficult for hard 
drug users and even soft drug users to stop their behavior to get over 
their addiction. It is much, much harder.
  When you hear the story of a young woman like Heather and what she 
has gone through and how difficult it was for her, I think it makes it 
crystal clear to us that as we are focused on tobacco and because of 
the connection between tobacco and drugs it is also very important for 
us to take this opportunity at this time to also recommit ourselves to 
fight this war on drugs for the sake of the people who are becoming 
addicted to drugs every day, for the sake of their friends and the sake 
of their families, as well as the rest of us in society who end up 
bearing the costs of their addiction.

  Because of the seriousness of this increase in drug use by our youth, 
I am very troubled that the goal of the administration in its 1998 
National Drug Control Strategy is not more ambitious. What is its goal? 
Its goal is to get us back, a couple of years after the turn of the 
century, to where we were when President Clinton took office. That is 
not only not very ambitious, but I think we could say it does not even 
begin to express the degree of commitment that we ought to be making.
  For the sake of the kids who at least are of junior high age today, 
we have to do better than that. That is why I am an original cosponsor 
of the Gramm-Domenici-Kyl Teenage Health Preservation Act. Let me just 
tell you a little bit about what the Teenage Health Preservation Act 
will do and why we think it is so important to be included within this 
tobacco legislation.
  Because of the link between underage tobacco use, illegal drugs, and 
crime, as I indicated earlier, we have established several important 
provisions in this legislation that I think get to each of those 
problems.
  First, we would establish a $5 billion antismoking, antidrug 
advertising campaign. We know that kids watch a lot of television. We 
know that they are susceptible to advertising. We know that there can 
be some very effective, good advertising telling them why they should 
not take on drugs or tobacco use. We would establish a five-member 
commission, with members nominated by the President, confirmed by the 
Senate, responsible for developing a comprehensive antidrug and 
antismoking advertising campaign. This $5 billion over 5 years would be 
funded out of the National Teenage Health Security Trust Fund 
established under the legislation.
  We also establish some antidrug and antismoking provisions and 
penalties, increasing, for example, by 50 percent the drug interdiction 
budgets of the Customs Service, Coast Guard, and the Department of 
Defense for activities along the U.S.-Mexican border and the Caribbean 
region; doubling the number of Border Patrol agents to achieve a level 
of 15,000 over the next 5 years; increasing the law enforcement budgets 
of the DEA and FBI by 25 percent; adopting the McCain antismuggling 
language which directs the Treasury Department to require the placement 
of a unique serial number on each pack of cigarettes to assist in 
determining the location and date of production. It would impose 
penalties of not less than 10 years of imprisonment for any adult who 
sells drugs to a minor, and a second offense would be life in prison.
  We would establish a Federal penalty of not less than 20 years for 
any person convicted of smuggling illegal drugs into the United States 
and, again, for a second offense, a penalty of life imprisonment. We 
would impose a fine of up to $100,000 and a term of imprisonment of up 
to 5 years for smuggling cigarettes into the United States. Those who 
would knowingly sell smuggled cigarettes to teenagers would face up to 
a year in prison and up to a $10,000 fine.
  Mr. President, let me just note, some of these fines may sound very 
drastic,

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but if we are going to get serious about this problem we have to do 
some very different kinds of things. I don't think it is too much to 
say that a fine up to $10,000 and up to a year in prison is too much 
for people who are smuggling cigarettes and selling them to teenagers, 
if we are really serious about this problem.
  We would suspend Federal student loan eligibility for teenagers who 
use drugs or purchase cigarettes. The penalty for drug convictions 
would be a year's suspension of eligibility for Federal student loans, 
and a second offense would be a permanent loss of eligibility for 
student loans. For teen cigarette purchase, it would be a warning the 
first time around, a 6-months suspension of eligibility for the second 
offense, and a year's suspension for the third offense. So there would 
be important penalties attached to all of these.
  We would establish a Teenage Health Security block grant program to 
the States. The distribution of the funds is linked to State adoption 
of sanctions for teenage tobacco use. The States themselves need to do 
more to enforce their already existing laws against youth smoking.
  We would adopt the McCain requirement that warning statements on 
cigarette packages take up not less than 25 percent of the upper space 
on the pack on the front and back of each package. Importantly, as I 
said before, vending machine sale of cigarettes would be restricted to 
areas that are not accessible to children or teenagers.
  The payment that would be called for here, we think, should be capped 
at a per-pack amount that is estimated to be below the trigger point of 
significantly increased black market activity. After financing the tax 
reductions--in other words, the self-employed health insurance 
deduction that we talked about earlier--all of the remaining amounts 
would be deposited in a new National Teenage Health Security Trust 
Fund. We think the total amount of the tax that would be required in 
this case would be on the order of 75 cents per pack.
  We think that full deductibility of health insurance and smoking 
cessation programs is called for, and therefore under this legislation 
we would provide for an accelerated phase-in of a 100-percent 
deductibility of health care insurance for the self-employed, to be 
effective January 1, 1999. We would allow all workers not covered by an 
employer-provided insurance to deduct fully the cost of health 
insurance. This is the Roth proposal on the above-the-line deduction, 
so to speak.
  In addition, low-income working taxpayers who are eligible for the 
earned-income tax credit could take advantage of the health insurance 
deduction. Specifically, the cost of health insurance premiums would be 
excluded from their modified adjusted gross income for purposes of the 
earned-income tax credit. This would not apply to an individual covered 
by employer-provided health insurance or by Medicaid. The cost of an 
FDA-approved smoking cessation program would be deductible and treated 
as an above-the-line deduction as well.
  I mentioned the National Teenage Health Security Trust Fund in this 
proposal. It would finance all the programs and initiatives which are 
created by the legislation. The Department of the Treasury would 
establish an accounting mechanism necessary to ensure that the trust 
fund deposits and outlays are credited properly, and all expenditures 
from the fund would be outside the spending caps, but all would have to 
be appropriated on an annual basis. There would be no new entitlement 
or mandatory spending programs.
  No distributions or expenditures from the fund would be permitted for 
any purpose other than a specific authorization provided in the Teenage 
Health Preservation Act. Any moneys remaining in the Trust Fund after 
the annual appropriations process has concluded would be transferred to 
Medicare.
  I mention the increased funds for the National Institutes of Health. 
This legislation would earmark an additional $5 billion over the next 5 
years from the trust fund to the NIH in addition to--in addition to--
the $15.5 billion increases over 5 years already provided in our budget 
resolution of this year.
  With regard to the State settlements with tobacco companies, we would 
guarantee the right of tobacco companies and the individual States to 
enter into legally binding--within the border of each State--settlement 
agreements, including limiting liability if that is what the States 
negotiated.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. KYL. Mr. President, I ask unanimous consent for 3 additional 
minutes to conclude my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Thank you. I will conclude with this brief description.
  The windfall profits tax on lawyers' fees that I mentioned earlier 
would provide, for States where there have been tobacco settlements 
reached, lawyer fees above $1,000 per hour but below $1,500 an hour 
would be subject to a surtax of 20 percent, and fees in excess of 
$1,500 an hour would be subject to a surtax of 40 percent.
  Bear in mind the level of fees I am talking about. While a good 
lawyer today might charge up to $200, $250 an hour--you know, the 
really superstars, maybe even $300 or $400 an hour--we are talking 
about $1,500 an hour here before this would kick in. But, amazingly, 
there are some lawyers who are getting far more than that in these 
tobacco settlements.
  There are some other provisions in here, but I will not go into the 
details in the interests of time. Also pending before us right now is 
the Coverdell-Craig-Abraham Drug Free Neighborhoods Act. I also 
strongly support that legislation. That legislation has been adequately 
described by Senator Coverdell a little bit earlier this afternoon. It 
has the drug-free teen drivers provision, the drug-free schools 
provision, which is very important. It emphasizes drug-free workplaces. 
I think it is very important for us to recognize that we are not going 
to be able to have drug-free workplaces if it is possible for people in 
this country to use drugs legally. Finally, there are key provisions 
for drug-free communities support.
  I might just note, too, a couple of the very specific provisions of 
the bill that I particularly like. It bans free needles for drug 
addicts and has a very important money laundering provision and a 
registration of convicted drug dealers.
  These are some important things that we can be doing to enhance the 
tobacco legislation before us to apply to the drug problem that also 
faces our youth today.
  We can't let this opportunity slip to address the national drug 
problem at the same time that we are addressing the important tobacco 
issue. Underage smoking is a serious problem, but smoking doesn't 
result in the crimes against the person and property that illegal drug 
use does. We have to focus at least as much attention on the problem of 
illegal drug use as on the problem of underage smoking. It is important 
to remember, Mr. President, that underage smoking represents only 2 
percent of all smoking occurring in the United States. Teenage drug 
addiction is a critical and growing problem within this country.
  Thank you, Mr. President.
  Mr. ROCKEFELLER addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from West 
Virginia.
  Mr. ROCKEFELLER. Mr. President, will the Senator from West Virginia 
be speaking in morning business?
  The PRESIDING OFFICER. The Senate is in a period of morning business 
with speakers allowed to speak up to 10 minutes.
  Mr. ROCKEFELLER. I thank the Presiding Officer.

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