[Congressional Record Volume 144, Number 75 (Thursday, June 11, 1998)]
[Senate]
[Pages S6135-S6137]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          TOBACCO LEGISLATION

  Mr. BREAUX. Mr. President, we are in the middle of the debate on the 
so-called tobacco legislation which has been ongoing for a number of 
days. I think that it is appropriate to pause for a moment and to 
consider where we are and where we have been and to try to come up with 
an idea of where this debate is likely to go. Because I think that with 
all the debate and discussion we have had, there is some confusion as 
to exactly what has been happening.
  I think it is very important to recognize that in order to know where 
you are going, it is also important to actually know from where you 
started. I think if you look at where we started, Congress became 
involved in this tobacco legislation really as a result of attorneys 
general litigation on behalf of all the various States trying to 
recover money for the States' Medicaid programs, which had suffered a 
loss because of payments for people who had suffered disease and injury 
because of smoking-related activities.
  When it comes to this issue, I want to make one point very, very 
clear. I do not think any of us need to be lectured to about the 
problem that is facing us. All of us have examples and instances in our 
own lives that make the problems associated with cigarette smoking and 
the tobacco industry very, very clear. In my own family, my mother died 
of lung cancer--lung cancer that was clearly and directly related to 
years of tobacco use. In addition, my father-in-law died of lung cancer 
and tumors related clearly to smoking and exposure, probably at the 
same time, to asbestos.
  Probably each Member of this body and also the other body has similar 
stories they can relate that personally affect them in their approach 
to this

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legislation. You simply cannot divorce it. People are affected for a 
lifetime by personal experiences, and mine are not any different from 
probably many of my colleagues'. So when I approach this issue, it is 
with the intent of wanting to do something to reduce underage smoking 
in this country.
  In order to determine where we are going, it is important to look 
where we started. The June 20 agreement was the baseline. It was the 
agreement the attorneys general of this Nation, who deserve a great 
deal of credit, were able to reach as a result of litigation in the 
courts of America against the tobacco companies of America. That 
settlement that was immense in what it did. It was immense in the 
proportions of good that it did. I would like to outline it for a 
moment to show where we started.
  That June 20 agreement would have settled the lawsuits brought by all 
40 States. It would have settled them. The States would have been 
compensated in their State Medicaid programs for funds that they spent 
to treat smokers. That is what the States wanted. It affected literally 
millions of people.
  In addition, it would have settled all of the individual lawsuits 
around this country, and people would have been compensated as a result 
of that settlement. In addition, it provided funds to cover the costs 
of implementing and enforcing several public health programs related to 
solving the problems of underage tobacco use and also to try to find 
ways to cure diseases caused by smoking.
  The tobacco companies, under that agreement, would have paid $368.5 
billion, not including the attorneys' fees, over a 25-year period. 
Payments at the rate of $15 billion per year would have continued 
forever.
  It is important for us to note that for the previous 40 years there 
was not an individual in this country who ever put a nickel in their 
pocket as a result of litigation against tobacco companies. So to say 
that you get $368 billion-plus to cover the costs of individual suits, 
and to use those moneys for health programs, is monumental in what it 
achieved because no one had ever walked off with a nickel in their 
pocket as a result of that litigation. This settlement did that.
  It also did something that the FDA was never able to do. It said in 
the agreement that the FDA would regulate tobacco products under the 
Food, Drug and Cosmetic Act, and the FDA would have the authority to 
reduce nicotine levels in those products.
  It also said we are going to set some goals, and the goals are going 
to be that you would have to show a 30-percent decline in cigarette and 
smokeless tobacco use by minors within 5 years --a 30-percent 
reduction--a 50-percent reduction within 7 years; and a 60-percent 
reduction within 10 years. If not successful, penalties would be 
assessed against the companies of up to $2 billion a year.
  That had never been done before in the history of this country, where 
you set absolute targets that companies agreed to and suffered 
penalties if they did not meet those targets, which were substantial.
  It also said, on advertising and marketing, that tobacco advertising 
would be banned on billboards, in store promotions, and displays over 
the Internet. No more Marlboro Man, no more cartoon characters like Joe 
Camel. Tobacco would also be banned from sponsoring all sporting 
events. No more race car events, no more race track events, no more 
anything from a sporting standpoint at which they would be able to sell 
or advertise. No more clothing, no more baseball caps, no more jackets, 
none of that would have been allowed under this agreement. Tobacco 
companies agreed to that. Companies agreed to the targets; companies 
agreed to the FDA regulation; companies agreed to pay $368.5 billion.
  Also, the warning labels were stronger than ever. Like, ``Smoking can 
kill you.'' Can you get it any stronger than that? You read that and 
still want to do it? Is there something loose somewhere in your head? 
That was going to be part of it.
  It includes substantial restrictions on youth access to cigarettes; a 
ban on cigarettes being sold from vending machines unless they are 
adult-only facilities; minimum standards for retailers. All of that was 
in there.
  If you had said this was possible to have 5 years ago, they would 
have looked at you and said, ``No way. You can't get that done.'' But 
that is all part of the agreement. That is where we started.
  I would just like to talk about some things that I think are part of 
this agreement that are not going to be able to be accomplished if we 
do not have an agreement that includes the companies.
  Marketing and advertising restrictions under this agreement took 
everything that the FDA wanted to have done and said, it is part of the 
agreement. It bans nontobacco brand names or logos on tobacco products. 
It bans tobacco brand names, logos and selling messages on nontobacco 
merchandise, i.e., the T-shirts, baseball caps, jackets; no more of 
that.
  It bans the sponsorship, as I said, of all sporting and cultural 
events in the name, logo or selling message of a tobacco product brand. 
It restricts tobacco advertising to black text on white background 
only, like this chart. It requires tobacco advertising to have a 
statement, ``Nicotine delivery device.'' It bans offers of nontobacco 
items or gifts based on the proof of purchasing a cigarette product. 
All gone. That is all what the FDA would like to have done, which, 
incidentally, is being litigated. Companies accepted that as part of 
that settlement agreement.
  It also said, we are going to do a lot more than that beyond what FDA 
wanted to do on marketing and advertising. This agreement spelled out 
some other things. We talked about it; that is, banning all outdoor 
tobacco product advertising, as in stadiums; and for indoor facilities 
directed outdoors. It bans the human images, again, like the cartoon 
characters of Joe Camel and the Marlboro Man. No more advertising on 
the Internet. It limits point-of-sale advertising to black-on-white. 
All of these things that no one has ever been able to accomplish was 
agreed to by the lawyers, agreed to by the defendants, agreed to by the 
tobacco companies as part of the settlement agreement.
  In addition to that, we also have youth-access restrictions. 
Retailers are prohibited from selling cigarettes or smokeless tobacco 
to children under 18, and all of the things they have to do under a 
youth-access restriction program.
  The point that I make is that all of this is part of their agreement. 
I am concerned that what we have done is to take this agreement, which 
no one would have thought possible 5 years ago, 4 years ago, and have 
turned it into an attempt to make a Christmas tree, to take care of all 
kinds of additional items, increase the amount everywhere you possibly 
can. I understand that.
  It is a race to see who can be the toughest on tobacco companies, and 
I understand that, too. My concern is, in our race to be the toughest, 
that we will lose all of the things that I have just outlined. Because 
I am absolutely convinced, from testimony in the Commerce Committee, 
that those restrictions on marketing and advertising that are in the 
current legislation, without the companies agreeing to it, is not going 
to be constitutionally upheld by the courts of this country--will not 
be. We cannot restrict advertising to adults. We cannot restrict 
advertising of legal products to adults that only incidentally affect 
children.
  The court cases are very, very clear with regard to what we can do 
and cannot do. The first amendment applies, yes, even to tobacco 
products, as long as they are legal, and no one is yet saying we will 
outlaw tobacco products like we tried to outlaw alcohol.

  I am concerned that as we increase everything that we are increasing, 
we lose the company's participation in this effort, and we are going to 
end up with something that may make us feel good temporarily but will 
not get the job done. An analogy is of the little boy who puts his hand 
in the cookie jar and tries to take all the cookies out of the jar; he 
has so many in his hand, he can't get anything out.
  We went from the base of $368.5 billion from the settlement; we 
increased that with a tax of $1.10, so now it is $574.5 billion. Then 
after we added to the base payments, we also added the look-back 
provisions. The look-back was the penalty for companies that didn't 
meet the targets I talked about. The June 20 agreement had penalties.

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 The Commerce bill raised the penalty potential to $706 billion. Floor 
amendments raised it to $810 billion on the look-back.
  I think that is questionable constitutionally. I think it is 
questionable whether you can say to a company, you have to do all kind 
of things, but if you do all those things and still don't meet the 
targets we will penalize you. I think it is questionable 
constitutionally for the ability to do that unless the companies agree 
to it. I think what we are doing is penalizing companies without any 
fault on their part. We are saying, do all of these things, but if you 
don't reach these targets we are going to hit you with $810 billion 
worth of penalties. They can agree to that; but if they don't agree to 
it, I doubt whether it will pass constitutional muster.
  I think the marketing and advertising restrictions happen to be the 
most important thing we can do in order to get teens to stop smoking. 
The $1.10 is not going to do it. Kids pay $100 for a pair of sneakers. 
Do you think $1.10 will get that many to quit smoking when they are 
paying $100 for a pair of tennis shoes? I doubt it. Marketing and 
advertising restrictions are very important--probably not 
constitutional.
  The look-back provisions: Sounds good. Let's make it as high as we 
can. If the companies don't agree, I question whether that is 
constitutional.
  Look what we did when you add it up. The base payments were 
increased, the look-back provisions, and now the judgments. We used to 
have a $5 billion annual cap for liability payments. This is for future 
suits. People say we are giving them all kinds of limitations on 
liability. Individuals can still sue in the future, can still have 
criminal actions against companies in the future, under the agreement. 
You can still have punitive damages in the future for companies who do 
wrong, and intentionally do it, but what we have done--we have gone 
from adding an increase in base payments, increased the look-back 
penalties, and took the cap off any annual limitations on future 
payments. We have gone from $435 billion to $906.4 billion, and now we 
add it up and there is no limit. Why would a company agree to all of 
those marketing and advertising restrictions, agree to all these look-
back penalties and targets that they have to meet, and get nothing in 
return?
  I am not arguing their case. I made it very clear where I come from 
in the beginning. An agreement, unless it is comprehensive, an 
agreement, unless everybody is involved in it, is an agreement on paper 
that may make us feel good temporarily but is not an agreement that is 
going to get the job done.
  It is incredibly important that we look at reality and come up with 
something that works. I suggest that we take the June 20 agreement as 
the basis, pass it, go to conference in the House, and we can work out 
something that will work. Senator Hatch, I understand, and Senator 
Feinstein and others on our side are working together to take what 
people thought was impossible and pass it.
  Let's get out of the cookie jar. Let's get back to reality. Let's do 
something that will pass, that will work, and that will make good 
sense.
  I yield the floor.

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