[Congressional Record Volume 144, Number 83 (Tuesday, June 23, 1998)]
[Senate]
[Pages S6857-S6861]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          TOBACCO LEGISLATION

  Mr. HATCH. Mr. President, I rise to announce that--contrary to press 
reports that tobacco legislation is dead--in fact, a strong, bipartisan 
effort to enact meaningful tobacco legislation is very much alive and 
well in the Senate today.
  Last week's action by the Senate on the Commerce Committee tobacco 
bill should not be viewed as a failure by this Senate to pass tough 
tobacco legislation.
  Nor should it be viewed as a victory by tobacco companies and tobacco 
lobbyists to kill tobacco legislation and deny the public health 
benefits from a strong bill.
  To be fair, there were many criticisms of the Commerce bill. It 
suffered from a myriad of legal problems, including several 
unconstitutional provisions. Its costs were very high, perhaps as high 
as $800 billion. It could have provided enhanced opportunities for 
black market sales, with accompanying crime and violence.
  And, a bad bill was made worse on the floor with adoption of several, 
additional competing spending priorities which--however well-
intentioned--diverted from the primary focus of the bill [e.g. child 
care, illegal drug abuse, tax cuts.]
  In my opinion, the four weeks that the Senate spent on the tobacco 
bill were a critical and useful exercise in educating ourselves--and 
the American public--on the numerous complexities of the tobacco issue. 
By and large, we now have a better understanding of this issue and what 
Congress should do to develop a good bill.
  Accordingly, Senator Feinstein, Senator Breaux and I have come to the 
floor today to announce our bipartisan effort to work toward a strong 
tobacco bill that, we believe, will be acceptable to the vast majority 
of our colleagues.
  There are eight cosponsors on our side and three cosponsors thus far 
on the Democrat side. And it is bipartisan.
  We must not lose sight of the fact that we have a very real 
opportunity, a compelling opportunity to act on tobacco this year.
  We believe the best framework for legislation clearly remains in the 
provisions of the June 20, 1997 global tobacco settlement that was 
agreed to by 40 State Attorneys General and the tobacco industry.
  This document should serve as the blueprint on which the Senate 
should act. It should be clean of extraneous provisions and programs 
and targeted to the overwhelming need to educate our nation's youth on 
the hazards of tobacco use.
  I call upon my colleagues--both Republicans and Democrats--to join us 
in this bipartisan effort to protect the lives of American youth.
  I call upon the President to work with us in a bipartisan effort to 
forge meaningful tobacco legislation. Without your active participation 
and support, Mr. President, there can be no tobacco bill. Together we 
can make a positive and defining difference.
  Senator Feinstein, Senator Breaux and I are prepared to move forward 
with tobacco legislation that is constitutionally sound and that will 
protect millions of Americans, both young and old, from the enticement 
of the deadly tobacco habit. We simply cannot lose this opportunity.
  We do not intend to remain on the sidelines while this issue 
languishes and political rhetoric is thrown back and forth.
  Some of my colleagues have stated they intend to offer the Commerce 
Committee tobacco bill as an amendment to all appropriate legislation 
on the floor of the Senate. Let me say to my friends that I share your 
concern that the Senate should pass legislation this year.
  I ask that you join us in our bipartisan effort to enact a 
settlement-based bill. Together we can realize enactment of tobacco 
legislation that has seemed so illusive over the past several weeks.
  I would like to outline this legislation so that my colleagues will 
understand the basics of the bill that we will file in the future.
  Number one, the key to an effective program, according to public 
health experts, is that it must be comprehensive.
  The Hatch-Feinstein bill accomplishes this goal with major provisions 
that build upon the June 20, 1997, agreement and the plaintiffs' 
attorneys' settlement proposal. Ours would require $428.5 billion in 
payments over 25 years. That is $60 billion more than the June 20, 1997 
proposal.
  Our bill will focus on antitobacco activities, including prevention 
and research efforts, and give full FDA authority over tobacco 
products. This is important because no comprehensive, antitobacco bill 
can be passed without the voluntary cooperation of the tobacco 
companies.
  When the proposed settlement was announced last June, with a record 
$368.5 billion in industry payments, we were all astounded that the 
tobacco companies would agree to pay that whopping amount of money. 
That record amount, that ``ceiling'' as it were, was astounding. Now 
there are those who talk like that is nothing.
  Our bill will add another $60 billion to that $368.5 billion in 
required industry payments over 25 years.
  I am hopeful our bill will bring the tobacco companies back.
  Yes, they will be kicking and screaming. They will be angry. They 
will be upset. But, I predict they will come back.
  There has been considerable debate in this body about the adequacy of 
the industry payments. I wish we could require $1 trillion in payments.
  The plain fact is that we have to be reasonable. If we want a 
comprehensive and constitutional bill, then we will have to insert 
provisions to bring the industry back to the discussion. Only with 
their participation can we have a truly constitutional, comprehensive 
bill.
  Of the $428 billion in industry payments, $100 billion will be 
devoted to biomedical and behavioral research.
  These significant new revenues are devoted to efforts to prevent, 
treat, and cure tobacco-related and other illnesses. We have included 
funds for behavioral research as well, so that we can determine the 
causes for youth tobacco use and determine how best to address them.
  Let me emphasize, we provide $100 billion over 25 years, or $4 
billion a year, for biomedical and behavioral research, with no 
possibility the funds will be diverted for other, non-tobacco-related 
purposes. That is something that will benefit the public health of this 
country significantly.
  We also provide $92 billion for important public health programs to 
combat

[[Page S6858]]

youth tobacco use, including counteradvertising, smoking cessation, and 
public education. Again, this is all for tobacco-related public health 
programs.
  We also include $18.7 billion for tobacco farm families, by melding 
the Lugar bill and the best of the LEAF Act, Senator Ford's bill, other 
than continuing the subsidies.
  Public health authorities insist that increasing tobacco prices is an 
important weapon in our anti-youth-tobacco-use arsenal. Law enforcement 
is equally adamant that price increases will lead to greater 
opportunities for black market sales. Our bill will substantially 
enhance law enforcement resources at all levels--Federal, state and 
local--and will also provide new criminal penalties for trafficking in 
contraband. The Hatch-Feinstein-Breaux bill will provide $9.4 billion 
for law enforcement efforts, which will be essential in the eyes of law 
enforcement.
  Turning to another provision, our bill includes $5 billion for 
tobacco-related programs for Native Americans, who are particularly 
hard hit by some of the problems that come from tobacco. We provide 
$200 million a year for these Native American programs.
  Let me add that we also give FDA strong and new authority over 
tobacco products, authority that is in question in light of current 
litigation over this issue. We also include strong look-back 
assessments, which, without the tobacco companies on board, will not be 
constitutional.
  In addition, when I say we give FDA strong new authority, we mean it. 
We not only give them the authority, we give them the authority to ban 
tobacco products, with the consent of Congress, right from day one. And 
we require them to issue strong performance standards that industry 
must meet so that we can be assured that any tobacco products sold in 
the future, meet government-mandated standards with respect to their 
critical components, such as tar and nicotine and all other additives. 
So that is important. That is quite a bit different from what was 
included in the Commerce bill, where the performance standards were 
permissive, not mandatory. We keep the industry's feet to the fire by 
including a strong look-back provision which will provide the industry 
with the incentives to be good actors, but which will provide stringent 
penalties if they are not.
  We provide $204 billion to the States to settle their suits and 
provide reimbursement for their Medicaid costs. We waive Federal 
recoupment of these funds under Medicaid law.
  The challenge for Congress is to design a program which works and 
which will withstand legal challenge. The problem with the Commerce 
bill, had it passed, is that it would have been litigated for probably 
10 years, because it was unconstitutional.
  Senator Feinstein, the other cosponsors, and I, have worked very hard 
to avoid constitutional and other legal pitfalls which handicapped the 
Commerce bill.
  So, to sum up, our bill contains constitutionally permissible 
advertising and marketing provisions, advertising restraints well-
beyond those contained in the FDA rule. We have strong look-back 
assessments--up to $5 billion in penalties in 2004 and up to $10 
billion by the year 2009 if the industry does not meet the reductions 
in youth-smoking that we set in the bill.
  And our bill mandates establishment of a documents depository in a 
central location, Washington, DC, where all of the tobacco companies 
will deposit critical industry documents. This will be done by 
volition, since the companies will have agreed to the protocol 
contained in the bill. This should make it easier for individual 
claimants to sue and to recover. And that is no small thing.
  Now, under Hatch-Feinstein, the manufacturers, State governments, the 
Castano litigants, and the Federal Government voluntarily execute a 
binding and enforceable contractual agreement, so that tobacco 
companies will have agreed, voluntarily to meet the requirements of the 
bill.
  Similarly, with the industry voluntarily consenting to the agreement, 
this obviates any constitutional problems with the look-back provision.
  We have included several limited liability provisions, which is the 
one prerequisite to the industry voluntarily agreeing to a bill; this 
will give the industry greater predictability in their financial 
exposure due to lawsuits, and which in turn will provide the Federal 
Government with a more predictable revenue stream to operate its new 
antitobacco program.
  Now, with respect to the limited liability provisions, we settle all 
Federal, State and local suits, including class actions, in line with 
the settlement nature of the legislation. That is what the attorneys 
general did. Shutting off the State litigation allows us to provide the 
States, counties and cities with guaranteed payments of up to $204 
billion, without the need for costly and time-consuming litigation and 
without Federal Medicaid recovery.
  Specifically, we provide $204 billion to the States. Forty percent of 
the State funds are untied; 60 percent of the State funds are targeted 
for 14 specific programs.
  We fully preserve all individuals' rights to pursue their injury 
claims, and all individual suits will be preserved and allowed to 
proceed except for those making claim for treatment only of addiction 
or dependency.
  We settle all past punitive damages in exchange for an unprecedented 
$100 billion which will be used for biomedical and behavioral research. 
Future judgments against the industry, with the exception of claims for 
addiction and dependence, will be subject to punitive damages, but they 
will also be subject to a cap on total awards during any given year.
  May I ask, Mr. President, how much of my time is remaining?
  The PRESIDING OFFICER (Mr. Abraham). The Senator from Utah has 8 
minutes remaining.
  Mr. HATCH. Let me just proceed a few minutes more before I turn to my 
colleagues, and then I will reserve the remainder of my time.
  The Hatch-Feinstein-Breaux bill contains many provisions that mirror 
those contained in the proposed settlement of June 20 of last year.
  We are trying to accomplish the art of the impossible. We want to 
enact this astounding settlement, this unprecedented agreement wherein 
the tobacco companies voluntarily concur in making large annual 
payments in exchange for unprecedented new advertising bans and future 
look-back penalties.
  If we cannot maintain the consensual nature of the original 
settlement, then we lose the ability to accomplish many of the key 
elements of any comprehensive anti-tobacco legislation.
  I want us togo home this year proud that we have enacted a good bill, 
not ashamed of our inaction or our action on a faulty bill.
  I thank my colleagues for being willing to support this bill. On the 
Republican side it is myself, the Senator from Oregon, Mr Smith, 
Senator Jeffords, Senator Gorton, Senator Bennett, Senator Hutchison, 
Senator Kempthorne, and Senator DeWine; on the other side, Senators 
Feinstein, Torricelli and Breaux. Let me reserve the remainder of my 
time.
  The PRESIDING OFFICER. Under the previous agreement, the Senator from 
California has up to 20 minutes.
  The Senator from California is recognized.
  Mrs. FEINSTEIN. I thank the Chair. I would ask that I be notified 
when 10 minutes of my time has gone by, and I will try to share it with 
the distinguished Senator from Louisiana.
  Mr. President, Senator Hatch and I have prepared our bill based on 
some ten hearings in the Judiciary Committee and is based on, we 
believe, would create a consensus to create a bill which would do the 
following: Create a pure tobacco bill with no additional tax measures, 
no drug enforcement programs, no voucher programs, but which would 
provide some incentives for the tobacco industry to agree, while 
increasing the per-pack price, and this is a gross figure, to about a 
$1.50 over 10 years. This would include excise and State taxes, 
wholesale and retail markups, manufacturers take. This bill would also 
ban all tobacco advertising geared toward children and ensures that the 
FDA has the necessary regulatory authority to regulate the consents, 
and to limit nicotine. It would also provide, as Senator Hatch has just 
said, some $92 billion over 25 years for tobacco-related public health 
programs, and $100 billion over 25 years for research, with tough look-
back provisions that require the industry to reduce youth smoking by 67 
percent in 10 years.

[[Page S6859]]

  It would also require States to negotiate an allocation of tobacco 
funds to counties that filed lawsuits before the June 20, 1997, 
deadline.
  As you know, the McCain bill as it came out of the Commerce 
Committee, required a total payment of $516 billion over 25 years. The 
Hatch-Feinstein proposal requires $428.5 billion over the same period. 
Under the McCain bill, as amended, it would have diverted about half 
the funds to programs unrelated to tobacco or public health. Under the 
McCain bill, there was less money going to public health programs and 
to the States than under Hatch-Feinstein, since 26 percent of the funds 
right off the top went to an election year tax cut. For instance, for 
the first five years, $47.2 billion would be left over after the tax 
cut, the Coverdell amendment then takes the great bulk of funds 
available for public health programs and uses it for drug enforcement, 
border patrol and school vouchers. That bill allocated 40 percent of 
the remaining funds available for State programs, while Hatch-Feinstein 
allocates 50 percent of the funds directed to the State.
  Under our proposal during the first five years, there would be $10 
billion more money for Federal public health research and antitobacco 
programs. There would also be $7 billion more money for State public 
health and antitobacco programs. The public health aspect, we believe, 
is the most important part of this legislation. Additionally, one of 
the most critical areas which must be addressed for any tobacco 
legislation to be successful in reducing youth smoking, I believe, is 
advertising. The tobacco industry knows that millions of smokers quit 
annually and approximately 400,000 Americans die from smoking-related 
diseases each year. They also understand that 89 percent of all new 
smokers are adolescents, and for their market share to continue they 
must continue to market cigarettes to children, and they do.
  So, advertising plays a central role in leading young people to 
smoke.
  We know that tobacco companies can no longer advertise on television 
or radio, so they use alternative forms of advertising and promotion to 
persuade teens to start smoking. We know that, despite endless promises 
by the tobacco companies that they have not and would not market to 
children, that they would not use advertising to appeal to children, 
they have done exactly what they promised not to do. And the evidence 
is staggering.
  Mr. President, 87 percent of adolescents could recall seeing one or 
more tobacco advertisements and half could identify the brand name 
associated with one of four popular cigarette slogans. As a matter of 
fact, in 1986 Camel cigarettes ranked seventh in popularity among the 
youngest age group of smokers, with less than 1 percent of all children 
smoking Camels. One year after Joe Camel was introduced, the brand 
jumped to No. 3 among teenage smokers--from No. 7 to No. 3--because of 
Joe Camel. This shows a clear relationship between advertising and teen 
smoking.
  Three months ago, I saw a tape of a television news report where a 
beautiful 3-year-old girl was able to match the cartoon Joe Camel with 
the photo of a cigarette. It was chilling. Even a 3-year-old could 
associate Joe Camel with cigarettes, and it was a positive association. 
Some have even said more children recognize Joe Camel than Mickey 
Mouse. It should not be this way in the United States of America.
  Our provisions in this bill with respect to advertising are as 
follows: The companies would have to agree to ban all outdoor 
advertising; all Internet advertising; all stadium/arena advertising; 
sponsorship of athletic, music, and other cultural events; human images 
in ads; cartoon characters in ads; product placement in movies, TV, 
video games, youth publications, and live performances; placing tobacco 
logos on nontobacco merchandise such as hats and T-shirts; color and 
image advertising except for adult-only locations; all adult magazines 
and newspapers; music and sound effects in audio and video advertising.
  So, if a company wants to advertise in media other than periodicals, 
promotional material, and point-of-sale materials, it must give a 30-
day notice to the FDA. These are broad, far-reaching restrictions which 
will severely limit exposure of children to tobacco advertising.
  Senator Hatch has laid out the liability provisions very well. 
Something I think we have all learned from this debate is that there 
should be some form of liability cap. That is the incentive--part of 
it--for the tobacco companies to comply. Our bill caps liability at 
$5.5 billion. As Senator Hatch stated, it would terminate all Federal, 
State, and local suits, Castano action, class action, individual 
preventive addiction and dependency claims.
  But all individual suits will be preserved and allowed to proceed, 
with the exception of those making addiction or dependency treatment 
claims for past conduct by the companies. They could continue the 
addiction and dependency treatment as long as an illness was related. 
Consolidation would be allowed by court action or by motions to join 
cases filed by individuals.
  Additionally, as I have mentioned, the Joe Camel suit was actually 
brought by a county, and yet that suit was jettisoned in the prior 
legislation. So we require that the states with those counties who have 
filed suit before 6/20/97--San Francisco, Los Angeles, Cook County, New 
York City, and Erie county--that they would all be recognized and 
provided for in this particular bill.
  I want to speak to the look-back provisions for a moment, because we 
set tough industry targets to reduce youth smoking and they are the 
following: 15 percent in 3 years, 30 percent in 5 years, 50 percent in 
7 years, and 67 percent in 10 years. And the penalties are actually 
stronger in our bill. The McCain bill, for example, had $40 million 
penalty per point when the industry is 1 to 5 percent short; we would 
have $100 million per point. Under McCain, if an industry is 6 to 20 
percent short, their penalty would be $120 million per point plus $200 
million. Ours impose $200 million per point. Under McCain, it imposes a 
penalty cap of $2 billion per year industry-wide and $5 billion per 
year company-specific cap; in our bill, it is $5 billion per year for 5 
years and $10 billion thereafter industry-wide.

  The PRESIDING OFFICER. The time of the Senator has expired.
  Mrs. FEINSTEIN. If I might have 1 minute to sum up and then yield to 
the distinguished Senator from Louisiana?
  Another provision in our bill that I want to speak to is the 
antismuggling provision. I heard so many people say, you don't have to 
worry about a black market, it is not going to happen. There is a black 
market today in California based on the present $2-per-pack price. The 
trick really is how the bill phases in per-pack pricing increases plus 
FDA's regulation of content and nicotine to see that it is done in a 
way that does not create an increased black market or increased 
smuggling. We provide in our bill an additional $9.4 billion over 25 
years for enforcement of antismuggling provisions.
  So, if the ultimate goal of tobacco legislation is to reduce teen 
smoking and smoking overall, we believe this bill will pass scrutiny by 
our colleagues. We offer to work with anyone who cares to work with us.
  I would like very much to thank the chairman of the Judiciary 
Committee. I very much enjoyed working with him on this bill.
  I now yield the remainder of my time to the distinguished Senator 
from Louisiana.
  The PRESIDING OFFICER. The Senator from Louisiana is recognized.
  Mr. BREAUX. Mr. President, I thank my colleague for yielding some of 
her time. As well, I thank Chairman Hatch for the work that he did on 
this legislation. I think the two previous speakers really need to be 
congratulated for bringing to the Senate a commonsense approach to what 
has become a very tragic situation. I would like to make just a few 
comments about it.
  You know, in Louisiana, where I am from, there is an old saying that 
if you like the end product, there are two things you should never 
watch being made; one is sausage, and the other is laws; because if you 
like the end product, you don't like the process that you go through to 
make either laws or sausage. If you observe it too carefully, you will 
never like the end product, perhaps is what they are trying to say.
  The point I am trying to make today is, what has happened on the 
tobacco legislation, I think, is indeed very,

[[Page S6860]]

very tragic, because what started out with very good intentions has 
ended up with a very serious loss for all Americans who are concerned 
about trying to do something about tobacco. There was a poll by one of 
the television networks on Friday night. It said that 47 percent of the 
American people were pleased that the tobacco legislation that came up 
in the Senate was defeated; 46 percent said that they were disappointed 
it was defeated. The American people have to be horribly confused about 
the situation, where we are and what has transpired.
  Do you know what we are engaged in now? We are now engaged in Monday 
morning quarterbacking. Members of both parties are trying to figure 
out how we can blame each other for the defeat of something that 
started off so pure and so good, with the best of intentions. Now all 
you see is spinmeisters saying, well, it is the Republicans' fault, 
because they are trying to load it up with marriage penalties and 
vouchers and they made it a tax bill and then they decided it was too 
loaded up after they loaded it up.
  There are some on our side who said, ``Well, no, this legislation 
wasn't nearly enough and wasn't tough enough on tobacco. We can be 
tougher on the tobacco companies than anybody else. Just watch what we 
can do when we want to be tough on tobacco companies.'' So we started 
with a product that was a good product in the beginning. Then, we made 
it so difficult that you broke the cooperation between all of the 
parties that is essential to get any kind of good agreement.
  I suggest there is plenty of blame to go around on both sides. That 
is why 47 percent of the American people believe they are glad the 
tobacco bill is defeated; 46 percent do not feel happy, that the Senate 
should have passed it. The American people have to be horribly 
confused. I think now we have to take a look at where we are. What do 
we do? Do we continue to play the blame game for the rest of the year? 
Do we continue to see who can get the most political advantage? Or do 
we try to make one last desperate but incredibly important effort to 
put something together that we can pass and that will work?
  It is really interesting if you look at what happened. You have to 
start from where we started. The June 20 attorneys general agreement 
was a compromise that really got the job done. People have come to the 
floor of the Senate and said, ``I can't be for that because this bill 
was written by the health groups.'' Others have said, ``I can't be for 
this bill because this bill was written by the tobacco companies.'' Or 
they can't be for this because it was written by the attorneys general 
or it was written by the plaintiffs' lawyers.
  The truth, in fact, is the reason the June 20 attorneys general 
agreement was so good is because it was written by everyone involved. 
It was written by the attorneys general, who filed suit on behalf of 40 
States against the tobacco companies. It was written by the tobacco 
companies, who were the ones being sued. It was written by the lawyers 
for all of the injured plaintiffs who had suffered injuries from 
smoking-related activities. That is why it worked, because it was not 
written by just one group, but it was written by everybody who had an 
interest in trying to get a realistic settlement passed.
  Now, all of the people who have now said that what we had on the 
floor was not nearly enough, I think they thought the June 20 agreement 
was pretty good. I was just looking at some of the old press releases 
about the June 20 agreement. One caught my attention the most. It was 
from the Campaign For Tobacco-Free Kids, which has been one of the 
strongest advocates for more, more, more, more, more. I understand 
where they are coming from, and I understand their position.
  But when the June 20 agreement came out with the attorneys general 
and the tobacco companies, which was far less than the bill they 
opposed on the floor from their perspective, here is what they said 
about the June 20 agreement:

       The agreement with the tobacco industry announced by the 
     state Attorneys General has the potential to save millions of 
     lives, prevent children from starting to smoke, and help 
     break the cycle of addiction for both children and adults.

  They continued:

       This agreement has the potential to achieve more than could 
     be realistically gained by any other means. The agreement can 
     be a historic turning point in the decades-old fight to 
     protect children from tobacco addiction and bring about a 
     fundamental change in the role of tobacco and the tobacco 
     industry in our lives.

  They continued by saying:

       The agreement goes well beyond the provisions of the FDA 
     Rule in terms of reducing youth access to tobacco products 
     and curbing tobacco marketing.

  It goes on and on and on praising the June 20 agreement. The bill on 
the Senate floor was far better than this agreement, which they said 
such wonderful things about, yet because of a desire for more and more 
and who can be tougher, we ended up getting less and less and less. And 
where we are today is very unfortunate.

  Where we are today is, there is no settlement of any of the lawsuits. 
No plaintiff has ever put a nickel in their pocket as a result of suing 
a tobacco company. This would have provided that. No settlements 
because of where we are; no money for the States for their Medicaid 
programs; no money for the States for tobacco-related expenses; no 
money for the National Institutes of Health to do research in this 
area; no additional authority for FDA to regulate nicotine as a drug; 
no advertising and marketing restrictions; no targets for reducing teen 
smoking, with penalties if these targets are not met. There is no help 
for farmers for getting out of the business.
  And what we have now is a debate about whose fault it is. We are 
arguing about failure. We are arguing that, ``It's your fault nothing 
was done''; ``No; it's your fault nothing was done,'' instead of trying 
to put together a compromise where we can argue about success, where we 
can argue about a bill that would provide all of these things that I 
have just outlined, and the distinguished chairman of the Judiciary 
Committee outlined and about which the Senator from California spoke. 
We have none of that now. And we have none of that because of this rush 
to see who can be tougher and tougher and tougher.
  I am suggesting that what Senator Hatch and Senator Feinstein have 
brought before the Senate is a major undertaking. And we are at the 
point where it is time for cooler heads to prevail. We have had the 
political debate. We have had the political arguments. We have had the 
pollsters talk about who comes out the best. And in fact, the truth is 
we all come out, I think, looking pretty bad.
  So I conclude by thanking Senator Hatch and Senator Feinstein for 
doing what they are doing. The status of the tobacco legislation now, 
because of the Senate's action, is that it has been sent back to the 
Commerce Committee. I think we ought to take this legislation and bring 
it back to the full Senate.
  Now that we have had the political discussion, perhaps we can find a 
way to come together and do something where everybody can get credit. 
Both sides can get credit, and the American people will win. Right now 
we have a situation where I am afraid that everybody is a loser. This 
is a good, solid, balanced approach that needs to be enacted. Thank 
you.
  Mr. HATCH. I am happy to yield the last couple minutes of my time to 
the distinguished Senator from California, if she would like.
  Mr. President, let me just bring one other point to the Senate's 
attention. Press articles in the past few days make it abundantly clear 
the need to enact a national settlement.
  Yesterday, the Washington Post had a front page article: ``Tobacco 
Pays for Crusade Against Itself.'' Think about that for a minute. This 
article highlights what it calls an ``all-fronts attack'' on tobacco, a 
massive counteradvertising campaign paid for by the industry itself. 
Those potent tools would be used by all 50 States if we enacted a 
national settlement. The article highlights the strong counter-
advertising message that is being delivered in Florida because of the 
settlement.
  Then today, the Post ran another article that was entitled: ``Appeals 
Court Voids Award in Tobacco Suit.'' This article describes the Florida 
court of appeals action to overturn a $750,000 judgment against the 
Brown and Williamson tobacco corporation for a smoker who lost part of 
his lung to cancer.

[[Page S6861]]

  Experts agree that the ruling, which overturned a judgement termed by 
the AMA as a ``milestone,'' has important national implications. This 
jury award was just the second jury award against a tobacco company in 
all of our history in this country.
  Now, you can go back to the 1960s, when I became a young lawyer in 
Pittsburgh, PA. The first antitobacco cigarette cancer case in the 
history of the world was brought to the Federal district court by none 
other than Jimmy McArdle, one of the greatest plaintiffs' attorneys who 
ever lived, the lead partner in the law firm McArdle, Harrington, 
Feeney, and McLaughlin.
  That was a big battle. This case was publicized all over the country. 
It was the first loss of literally hundreds of cases.
  The ruling in the Florida case was just the second awarded against 
tobacco companies, and its reversal once again demonstrates how hard it 
is to successfully sue the tobacco industry.
  This ruling affirms the vitality of the common law doctrine of 
assumption of risk which bars recovery if the plaintiff knew the risk 
of his action. Because of the assumption of risk doctrine, the tobacco 
companies win almost all their cases.
  A national settlement bill, such as Hatch-Feinstein, would assure an 
orderly and rational payout of funds by earmarking annual payments. It 
would avoid the so-called ``race to the courthouse'' that has so many 
of us concerned.
  These two Washington Post articles point out the need for a 
``global'' approach in the words of the Attorneys General.
  I would happily yield the remainder of my time to my friend from 
California.
  Mrs. FEINSTEIN. I thank the chairman. And I thank him very much for 
all his work in this area.
  I think, just to summarize--and I recognize there is a lot of 
territorial imperative resounding around this issue. And I hope that 
can be put into perspective and that we can look to find something 
around which we can rally.
  True, this is a compromise proposal. I hope it will not be dismissed 
out of hand. It has a liability cap, yes. It has strong look-back 
provisions. It provides $428 billion over 25 years. It does divide the 
money 50-50 to federal and state. The money that goes to the State can 
be used for 14 specific programs. The money that goes to the federal 
fund is used for tobacco-related research and public health programs. 
It does have the FDA provisions. It does have strong advertising 
provisions.
  Now, as I have talked to people, there is a kind of purist attitude 
that ``Unless a bill is this or that, I won't vote for it.'' Well, 
there are a lot of strong feelings on behalf of all of us. I could 
say--and it is true--my calls on tobacco reform have run dominantly in 
the negative, those people opposed to reform. And yet I think there 
isn't a Member in this body who does not understand that tobacco reform 
is something that is important, just forged from one statistic--and 
that is 3,000 young people a day beginning to smoke, and 1,000 of them 
dying from tobacco-related illnesses.
  We know we have to do something. We do know when you raise the price, 
teenagers stop or are deterred from buying. If you combine that with a 
strong no-advertising provision and a strong look-back provision to 
keep the companies honest, I think you have a bill that is about as 
good as one can get.
  So I'm very pleased and proud to join with the chairman of the 
Judiciary Committee, once again, to offer to work with whomever in this 
body so that we might be able to introduce a bill that will be looked 
upon with favor by a majority.
  I thank Chairman Hatch and I yield the floor.
  Mr. HATCH. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call.
  Mr. THURMOND. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Faircloth). Without objection, it is so 
ordered.

                          ____________________