[Congressional Record Volume 144, Number 73 (Tuesday, June 9, 1998)]
[Senate]
[Pages S5764-S5767]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL TOBACCO POLICY AND YOUTH SMOKING REDUCTION ACT

  The Senate continued with the consideration of the bill.
  Mr. ROBB addressed the Chair.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. ROBB. Mr. President, I would like to return to a discussion of 
the bill that is currently before the Senate. I voted against cloture 
today, and barring some major shift in the direction of this 
legislation, which now, regrettably, appears unlikely, I will have no 
choice but to vote against cloture again tomorrow.
  Mr. President, I have a keen interest in the pending legislation. I 
have three children, all now grown. No member of my family smokes now, 
and I hope they never do. In the Senate, we represent millions of 
parents who have the same wish for their children. There are thousands 
of Virginians who belong to the American Heart Association, the 
Virginia Cancer Society, the American Lung Association, Virginians who 
have fought for years against the scourge of smoking-related disease.
  There are also, however, thousands of honest, hard-working, God-
fearing, law-abiding, taxpaying Virginians whose lives and livelihoods 
would be dramatically affected solely by the actions this Congress may 
take on the tobacco issue. For example, there are thousands of 
Virginians who work to manufacture tobacco-related products, and 
thousands more who work in associated industries, like the dock-workers 
at the Ports of Hampton Roads, foil manufacturers, and filter makers. 
And there are the thousands of Virginia families who work the soil and 
grow tobacco, who face not only the uncertainty other farmers face 
regarding the weather and other uncontrollable forces, but must contend 
with the added uncertainty of what Congress may do to affect their 
lives.
  In short, to an extent not shared by many of my colleagues I 
represent virtually every interest affected by this legislation. While 
some would argue that because I'm from a tobacco state I must be biased 
on this issue. I believe that because I'm from a tobacco state, I'm in 
a unique position to be objective. I'm willing to listen with an open 
mind to public health advocates, who want to protect the Commonwealth's 
children, but I'm also willing to listen with an open mind to tobacco 
workers and tobacco growers whose very livelihood is under attack. 
Indeed, I've

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worked closely with both the public health community and the tobacco 
grower communities--as well as the tobacco worker communities--whose 
concerns were not fully represented in the June 20 agreement.
  I have believed from the outset that a resolution of the issues 
surrounding tobacco is in the best interests of all interested 
parties--children, the public health community, tobacco workers, 
plaintiffs, tobacco companies, tobacco farmers and their communities. 
I've said that from the very beginning and my position has not changed.
  I still want very much to support comprehensive legislation that will 
address these concerns. Comprehensive legislation, however, must be 
reasonable. While by its very nature complicated legislation will not 
be perfect in any one individual's eyes, it must be fair and 
responsible. And indeed, it must meet its stated objectives. I have 
reluctantly come to the conclusion that as it now stands, this 
legislation has lost sight of its objective and will do more harm than 
good.
  When we began this process of crafting legislative solutions to the 
problem of tobacco use among our children, we all understood it would 
not be easy. We knew that difficult and complicated issues needed to be 
addressed, and consensus would be hard to reach. But as I stand here 
today, I've become convinced that this effort has hopelessly faltered, 
tripped up by an unholy alliance of those who wanted to toughen the 
bill and those who wanted to kill it. We've lost our focus on our 
original goals. The lure of money to pay for both expensive tax cuts 
and federal programs, and the politics of punishment, have 
unfortunately proven irresistible.
  We had, and regrettably for now we've lost, an historic opportunity 
to address underage tobacco use. While I did not agree with every 
element of the proposed resolution of tobacco issues that emerged with 
the original settlement agreement on June 20, 1997, I did see it as a 
chance to resolve many of the issues surrounding tobacco that have 
proven intractable in the past. The process of reaching the conclusion 
was not perfect, and there were parties who were not invited to 
participate, most notably in my view the tobacco growers and tobacco 
workers, to the extent their interests did not coincide with the 
companies'. But the framework for a resolution was there, representing 
compromise by the states, the tobacco companies, and the public health 
community.

  A carefully crafted, moderate compromise, however, is no match for a 
hot political issue. Between those who focused on punishing tobacco 
companies, and those who focused solely on opposing a tax increase, we 
have a political free-for-all. And these two factions, one of which 
believes it is protecting the children and the other which believes it 
is protecting the taxpayer, have united to create legislation in its 
current state that has become unworkable, irresponsible and unlikely to 
solve the problem it is designed to address.
  This legislation should be about developing a plan to stop children 
from using tobacco products. And I do not doubt the commitment of those 
who have worked so hard on this bill to achieve a reduction in youth 
smoking. In my view, however, the amendments to the underlying bill 
that we have adopted recently do not get us closer to that goal. To the 
contrary, they make the essential compromise unreachable.
  It is clear that the advertising and marketing rules the FDA put in 
their regulations represented the outer limits of what the government 
could do to restrict speech without the consent of those being 
restricted. To entice consent from the tobacco companies to modify 
their speech, the bill contained a cap on the amount of money a 
consenting company could be required to pay during any one year. That 
cap did not shield any company from paying any judgment rendered by a 
court; it merely regulated the time period over which such payments 
would be made.
  During the amendment process, we've witnessed the emergence of an 
unlikely coalition of those who seek to punish the companies and those 
who seek to kill the bill who teamed up to strip that provision from 
the bill, virtually ensuring that no company will consent to greater 
restrictions, and preventing us from further limiting the advertising 
and marketing practices of the tobacco companies which many have come 
to the floor to denounce. However gratifying that vote may have been 
for some, I believe that amendment moved us away from our objective to 
combat teen tobacco use.
  I believe the absence of liability protection does even further 
damage to the goal of the legislation. Without some limitation on 
liability, a ``Powerball'' plaintiff could hit a jackpot with a lone 
jury and walk away with the keys to the company. If that occurs, the 
company's funds will not be there to spend in the public interest as 
elected representatives see fit, but will be spent however the winning 
plaintiff sees fit. No funds for counter-advertising, no funds for 
smoking cessation programs, no money for cancer clinical trials and, 
yes, no money for farmers. This is a perverse result, which may satisfy 
a short-term craving for revenge but will leave the programs we want to 
support starved for funding over the long-term.
  A better approach, in my view, would be to eliminate punitive damages 
for prior bad acts in exchange for a substantial up-front payment by 
the tobacco industry. This approach would have the benefit of allowing 
those ``punitive damages'' to go toward the public good, rather than to 
plaintiffs and their attorneys who ``hit the jackpot.''
  Without liability protection, a single runaway jury could wipe out a 
major U.S. corporation, without any corresponding public benefit except 
the satisfaction of some from ``slaying the beast.'' But it would come 
at great social cost. It would destroy the jobs of those employed by 
those companies, and all of those in related jobs whose livelihoods 
depend on the company. And because there would still be a demand for 
cigarettes, other companies, both foreign and domestic, would simply 
step into the market and continue selling cigarettes, so there would be 
no guarantee of any perceptible public health benefit. I'm not 
convinced that this is the most rational course.
  I'm also uncomfortable with the look-back provisions. The look-back 
provision sets up a performance standard, requiring certain goals of 
tobacco use reduction by minors. If those goals are not met, a strict 
liability scheme imposes penalties on those who manufacture tobacco 
products. While I certainly favor performance standards, I question 
their application when meeting the standard is not within the control 
of the entity charged with reaching it. Meeting the goals of the look-
back provisions depend entirely on controlling the behavior of 
adolescents.
  I'm not convinced that either the government or the tobacco companies 
really know how to control teen behavior, and while we should certainly 
try to develop methods of eliminating the use of tobacco products by 
adolescents, I don't believe we should assess damages against companies 
if those strategies don't work. The way the look-back provisions are 
currently structured, if the tobacco companies do everything this 
legislation requires them to do, and it doesn't work, they are still 
assessed damages, regardless of culpability. I believe this 
overestimates the power of the tobacco companies, because it requires 
companies to be responsible for the behavior of adolescents.
  Finally, with regard to the tax increase on tobacco products, I'm not 
unalterably opposed to raising the price. In fact, I voted against the 
amendment that would have eliminated any tax from this bill. I have in 
the past supported necessary tax increases when I believed them to be 
in the national interest, such as the 1993 deficit reduction package 
which has helped spur the economy. But I believe we should think long 
and hard before levying a tax that disproportionately taxes those at 
the bottom of the economic ladder. If we determine that raising the 
price by $1.10 per pack is the only way to tackle the problem of teen 
tobacco use, then I believe we have an obligation to assess it. But 
given the uncertainty as to what will actually stop teens from trying 
to act like adults by smoking, it seems to me we should try other 
approaches first. A massive, regressive tax ought not be the first 
resort, it should be the last resort.
  In its 1996 regulations, for example, the Food and Drug 
Administration indicated that marketing and advertising restrictions, 
and tougher retail enforcement, could cut teen tobacco use

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in half. While that estimate was likely overly optimistic, I think that 
we can expand upon the approach taken by the FDA to achieve the goal we 
all share. In the proposed rule, the FDA stated that ``the agency has 
examined many options for reducing tobacco use by children and 
adolescents, and believes an effective program must address the two 
following areas: (1) Restrictions on cigarette and smokeless tobacco 
sales that will make these products less accessible to young people; 
and (2) restrictions on labeling and advertising to help reduce the 
appeal of tobacco products to young people along with requirements for 
a manufacturer-funded national education campaign aimed at those under 
18 years of age to help reduce the products' appeal to these young 
people.'' I would prefer enhancing these proposals, and determining 
whether they can solve the problem, before assessing a major tax on 
adults. Since only 2% of the cigarettes purchased are used by children, 
I would place emphasis on a far more precise tool than a tax on the 
other 98%, unless such a tax is the only weapon left in our arsenal.
  For example, I would like to focus more on requiring those children 
who smoke to accept some short-term consequences of the decisions they 
make, such as taking away their car keys.
  This is the type of approach that would be a more exact tool. But it 
is not to say that I could not have supported some look-back provision, 
or some tax increase, so long as they were contained in an otherwise 
balanced bill and the proceeds targetted toward supporting and 
enhancing the objective. In fact, I agreed to serve on the tobacco task 
force to try to help develop a balanced approach that would solve the 
problem. I knew going in that no proposal would be completely to my 
liking, and I was prepared to accept some less palatable provisions as 
part of a workable package I could have embraced.
  For example, although I've always believed the look-back provisions 
were not sound public policy, despite the support they had from the 
companies, as part of a fair and reasonable resolution, I could have 
supported this approach. I was willing to accept a certain level of 
variance from my ideal in the interest of accomplishing the 
objective. This legislation, however, has reached the point where the 
burden is too heavy and the variance too great.

  I cannot in good conscience support legislation which places too 
heavy a burden on people I represent without some guarantee that their 
legitimate concerns would be addressed and without some certainty that 
the objective of reducing youth tobacco use would be met. All along, 
I've wanted to achieve the dual goal of reducing teen tobacco use and 
looking out for the economic well-being of the hard-working people I'm 
here to serve.
  This bill in its current form no longer has enough emphasis on these 
objectives, which is why I now am not supporting it. An unusual 
confluence of those who want to punish the companies and those who want 
to kill the bill have shaped legislation which many of us who wanted a 
responsible bill can no longer support. I had hoped to come to a 
different conclusion about this process. I still believe that a 
properly crafted global settlement is in the best interest of those 
concerned about tobacco. A resolution of the issues that have dogged 
the tobacco industry for decades, if done correctly, would be good for 
growers and their communities, children, tobacco workers, the tobacco 
industry, smokers, non-smokers, and the public health community. The 
uncertainty that now surrounds these issues is good for no one.
  Discussed rationally, I believe we could develop a solution that 
would address these uncertainties. On the floor of the Senate during an 
election year, as we all know, rational discourse doesn't always carry 
the day.
  Mr. President, let me conclude by saying that I began this process 
with an open mind and a sincere belief that comprehensive tobacco 
legislation that could be both reasonable and effective in reducing 
smoking among our youth was in the best interest of all parties 
involved. I would have supported that legislation. But in the last 
three weeks, in amendments aimed at punishing tobacco companies, we 
have weakened the ability of this legislation to do what we all say we 
want it to do: reduce teen smoking. Again, this has been done by an 
unfortunate alliance of those who want a bill that's too punitive and 
those who want simply to kill this bill. In the end, I cannot support 
legislation that brings great and unnecessary economic harm on working 
people, and does not effectively achieve the benefit of preventing 
young Virginians--and young Americans--from becoming young smokers.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  Mr. KERRY. Will the Senator withhold?
  Mr. ROBB. I withdraw my request.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Let me say to my friend from Virginia, I have great 
respect for his analysis and for the sober, introspective approach that 
he brought to this legislation. I must say I cannot disagree with him--
that from, certainly, my perspective, there are one or two amendments 
that have been agreed to that may be a reflection of sort of a first-
round fervor on the floor of the Senate. On the other hand, I am 
convinced that is going to change over the course of the legislative 
process. Some people have been trying to wish this bill dead for some 
period of time.
  I think the Senator from Arizona and I would agree, this bill is not 
dead. This bill is going to continue to be fought out in the context of 
the Senate. I hope in the end the Senator from Virginia will find that, 
while he may not agree with what could still leave the Senate floor--
and I believe the bill could still leave the Senate floor--if the 
Congress of the United States works its will in a complete way, it is 
possible that something could come back, ultimately, that the Senator 
may feel is better.
  I also respect the Senator's particular needs with respect to 
Virginia. There are certain Senators here who obviously have a very 
particular problem they need to try to resolve in the context of this 
legislation. At the moment, there is not certainty as to that for the 
Senator. But I might say that might be also resolved as we go along 
here. So, I do respect his thinking on it. I appreciate his thoughtful 
approach.
  Just so colleagues may have a sense of where we are and what we are 
doing, we do believe it may be possible within a short period of time 
that there would be a couple of votes. Our hope is to be able, though 
it is not yet guaranteed, to proceed forward with a couple of votes, 
conceivably one on the Coverdell amendment and then an alternative 
thereto, and then conceivably, first thing tomorrow, we may be able to 
deal with the issues of the Gramm amendment and a Democrat alternative 
to it.
  So, even though things are not bubbling over with excitement on the 
floor itself, I think there is some quiet progress being made in some 
meetings behind the scenes. Hopefully, that will allow us to begin to 
break forward and set up something of a legislative agenda where we can 
begin to debate some additional amendments and, hopefully, proceed 
forward. That, obviously, will continue to depend on the goodwill of 
our colleagues and on the degree to which there is a good-faith effort 
to try to legislate rather than to procrastinate. Hopefully, within a 
short period of time we may be able to propound a request with respect 
to that.
  I see the Senator from Wisconsin is on his feet and wishes to speak, 
so I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. KOHL. Mr. President, I come here today to discuss an amendment to 
the tobacco bill and to highlight how tobacco companies have used court 
secrecy orders to deceive and endanger the American public. While 
secrecy orders may be justified to protect personal information or 
trade secrets, they all too often have been abused--especially by 
tobacco companies--to undermine health and safety. We need to strike a 
better balance and make sure this tactic can't be used to cover up 
future bad conduct.
  Typically, tobacco companies--like many other defendants--threaten 
that without ``secrecy,'' they will fight to conceal every document, 
and they will refuse to settle. They insist on making secrecy--or 
``protective''--orders a precondition to turning over documents and to 
settlement. And overmatched

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victims have no choice but to accept these demands, even though there 
is no legal reason why most of the documents should be kept under 
wraps.
  While courts actually have the legal authority to deny requests for 
secrecy, often they do not--because both sides have agreed, and judges 
don't take the time to independently look into the matter themselves.
  Over the years, we have raised this concern, citing several examples, 
including defective heart valves, exploding fuel tanks, and dangerous 
playground equipment. In case after case, people have been injured or 
killed by defective products that remained on the market while crucial 
information was sealed from the public light. This is not only wrong, 
it is also unacceptable.
  There is no doubt that the most flagrant abuse of secrecy orders 
involves Big Tobacco. This tactic has served the industry in two 
disturbing ways. First, it dramatically drove up the cost of litigation 
by making every plaintiff ``reinvent the wheel.'' As one tobacco 
official boasted, rather crudely, ``the way we won these cases was not 
by spending all of [our] money, but by making that other S.O.B. spend 
all his.'' And secrecy orders helped them do it.
  Second, secrecy kept crucial documents away from public view. The 
tobacco companies have used secrecy orders and attorney-client 
privilege to conceal all kinds of materials critical to public health 
and safety, including many relating to teen smoking and nicotine 
levels. Once these documents were released, public outrage compelled 
action. But if the public had this information earlier, we could have 
saved thousands of lives.
  The underlying tobacco bill--which I strongly support--sets up a 
depository where tobacco companies are supposed to send current and 
future documents. But the tobacco companies have made clear that they 
will not cooperate. They'll just tie up this and other provisions in 
court, and the promise of a meaningful document library will literally 
be empty.
  So the bill leaves a big, big loophole. In the future, tobacco 
companies could add new ingredients to cigarettes that pose health 
risks or make tobacco more addictive. And they will still be able to 
rely on secrecy orders to conceal these hazards from the public.
  Our proposal will close this loophole. It is simple, effective and 
limited in scope. It only applies to a small category of cases, like 
tobacco, which involve public health or safety. Before approving 
secrecy orders, courts would apply a balancing test--they could permit 
secrecy solely if the need for privacy outweighs the public's right to 
know. In addition, the amendment bars any agreement that would prevent 
disclosure to the federal and state agencies charged with protecting 
public safety.
  Mr. President, our proposal does apply to more than just tobacco 
cases, of course, and it should. We need to prevent others from copying 
the tobacco industry's tactics.
  Bipartisan support for this proposal has grown over the years. Last 
Congress, it passed the Judiciary Committee 11 to 7. So if the tobacco 
bill moves forward, this proposal should be included.
  But even if the tobacco bill goes down, we still need to address this 
problem. Because who knows what other hazards are hidden behind 
courthouse doors? So if necessary I will offer this amendment to 
another measure.
  Today, a debate is raging about whether the President is hiding 
behind court orders and legal privileges. But when health and safety 
are at issue, there shouldn't be any debate at all. This is far too 
important. We need to learn our lessons from tobacco and take action to 
stop the next threat.
  Mr. President, I yield the floor and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Mr. President, I ask unanimous consent to speak as in 
morning business for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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