Congressional Record, Volume 150 Issue 98 (Thursday, July 15, 2004)

[Congressional Record Volume 150, Number 98 (Thursday, July 15, 2004)]
[Senate]
[Pages S8150-S8178]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

AMERICAN JOBS CREATION ACT OF 2004

Mr. McCONNELL. Mr. President, pursuant to the order entered last
night, I move to proceed to H.R. 4520.
Mr. REID. No objection.
The PRESIDING OFFICER. The question is on agreeing to the motion.
The motion is agreed to.
The PRESIDING OFFICER. The clerk will report the bill by title.
The legislative clerk read as follows:

A bill (H.R. 4520) to amend the Internal Revenue Code of
1986 to remove impediments in such Code and make our
manufacturing, service, and high-technology businesses and
workers more competitive and productive both at home and
abroad.

Amendment No. 3562

(Purpose: To provide a substitute for the bill)

[[Page S8151]]

Mr. McCONNELL. Mr. President, on behalf of Chairman Grassley, I call
up a substitute.
The PRESIDING OFFICER. The clerk will report the substitute.
The legislative clerk read as follows:

The Senator from Kentucky [Mr. McConnell], for Mr.
Grassley, proposes an amendment numbered 3562.

(The text of the amendment (S. 1637) is printed in the Record of May
18, 2004.)
Mr. REID. Mr. President, before the distinguished majority whip
leaves the floor, I want to say something. We get things done around
here in a number of different ways. One of the ways we get things done
is we have to trust each other. To be at the point we are on this piece
of legislation today took a lot of trust.
Last night, about 9:30, the floor leaders met right here in the aisle
and the Senator from Kentucky indicated he wanted to do something
differently. I today extend to him, through the chairman, my
appreciation. There was a slight misunderstanding, nothing intentional,
and that is certainly underlined and underscored. We could have had a
big puff-up here this morning and had name-calling--You should have
understood, you didn't, it is your fault--but I have to say the Senator
from Kentucky is a man of his word and indicated if there was any
misunderstanding he would take care of it. And he did.
I want the record to reflect I appreciate that very much. We are now
going to go forward with a very important piece of legislation. But we
could not have done that with good will prevailing but for the act of
the Senator from Kentucky, for which I, on behalf of the whole Senate,
extend my appreciation.
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. McCONNELL. Mr. President, let me say to my friend and colleague,
the assistant Democratic leader, I do think we had a good discussion
last night, and reached an agreement on moving forward with this
important piece of legislation. The minor snafu my friend referred to
we were able to work out in short order this morning, and that is the
way the Senate ought to work.
I congratulate him for his important contribution to moving this
matter forward as well.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.

Amendment No. 3563

(Purpose: To protect the public health by providing the Food and Drug
Administration with certain authority to regulate tobacco products, to
eliminate the Federal quota and price support programs for tobacco, and
to provide assistance to quota holders, tobacco producers, and tobacco-
dependent communities)

Mr. DeWINE. Mr. President, I have an amendment at the desk that I
call up.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Ohio [Mr. DeWine], for himself, Mr.
Kennedy, Mr. McConnell, Mr. Hollings, and Mr. Durbin proposes
an amendment numbered 3563.

Mr. DeWINE. Mr. President, I ask unanimous consent that reading of
the amendment be suspended.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. DeWINE. Mr. President, I am offering the amendment on behalf of
myself, Senator Kennedy, Senator McConnell, and Senator Durbin.
Mr. President and Members of the Senate, the amendment I offer this
morning is a long time coming, but it is an amendment that I think has
historic meaning for this Senate and for this country. It really is two
amendments that we are combining. One is Senator McConnell's bill, the
tobacco buyout. The other part of the amendment is Senator Kennedy's
and mine and Senator Durbin's FDA regulation of the tobacco bill. Each
of these bills has been worked on for a long time. These bills are
being combined in this amendment.
There is a time and a place for legislation. The time for both of
these bills has come. This amendment is in a sense a marriage, a
merger. Some people have referred to this as a shotgun marriage or an
interesting marriage, an interesting alliance. I happen to think it is
a proper marriage. I think it is a marriage that makes sense, and I
believe it is a marriage that will last. I believe it is a marriage
that will last not only through today when the Senate will vote on this
amendment, and I believe will pass this amendment, I believe it is a
marriage that will last through the conference committee that will
come. I believe it is a marriage that will last to see this amendment
and this bill become law. So I believe it will be a permanent marriage,
a lasting marriage.
I will talk this morning about the FDA side. But before I do, let me
say, I support Senator McConnell's bill because, you see, I understand
the problems of tobacco farmers. We have, along the Ohio River, north
of the Ohio River, tobacco farmers, certainly not as many as my
colleague does from Kentucky, but we have them. I understand the
problems they have. They need this bill. They need the tobacco buyout.
My colleague from Kentucky and I have had many conversations about
the need and the necessity to merge these two bills. It makes eminent
sense to do it. So I thank my colleague for his good work. I thank him
for his good counsel. It has been a pleasure to work with him for,
frankly, over a year, as we have worked together.
Let me also say to my colleague from Massachusetts, it has been a
great pleasure to work with him as we have worked on the FDA part of
this bill.
Let me talk about the FDA regulation of tobacco. Senator Kennedy and
I have worked on this issue for some time. We introduced this
amendment. This part of the amendment is designed to help protect
consumers, especially children, from the dangers of tobacco.
Simply put, our amendment would finally--finally--give the Food and
Drug Administration the authority it needs to effectively regulate the
manufacture and sale of tobacco products. I say ``finally'' because
many of my colleagues--first Senator McCain, back in 1997, 1998, began
working on this. Senator Frist did great work, as well as Chairman
Gregg, who put a great deal of effort and work into this as well; and
then Senator Kennedy and myself. We have all been seeking FDA
regulation of tobacco products. Congressman Davis and Congressman
Waxman have a companion piece of legislation in the House of
Representatives.
I say ``finally'' because the bill we are offering today is the
product of long and hard discussions and negotiations that I have had
with Senator Kennedy and others and public interest groups and
industry. Our bill has the support of the Campaign for Tobacco-Free
Kids. Our bill has the support of Philip Morris. Our bill has the
support of the American Heart Association, the American Lung
Association, and the American Cancer Association.

It is a bill of which I am proud. It is worth the Senate's
consideration and passage. It will provide the FDA, finally, with
strong and effective authority over the regulation of tobacco products.
Why do we need this bill? I think we all know why we need it. Every
day, nearly 5,000 young people under the age of 18 try their first
cigarette. In my own home State of Ohio, 33 percent--one-third--of
children smoke. These kids in Ohio by themselves go through 45 million
packs of cigarettes each year. If that is not bad enough, think about
this: 90 percent of smokers start smoking before the age of 19. More
than 6.4 million children across this country will die prematurely
because of a decision they will make as adolescents; that is, the
decision to start smoking.
While States may have limited the options available for tobacco
advertising under the 1998 master settlement agreement, the reality is
tobacco companies are still able to choose the content of their
advertisements, their ads that they run in magazines such as Sports
Illustrated.
Sports Illustrated is read by tens of thousands of children across
this country every single day. Kids read it every single day. These
companies are savvy. They are smart. They have changed their marketing
strategies. They have concentrated more money into different
advertising markets. As a result, years after the major tobacco
companies agreed to stop marketing to children as part of the tobacco
settlement, children are still twice as likely as adults to be exposed
to tobacco advertising. That is who is reading it. That

[[Page S8152]]

is who is seeing it. That is who is hearing it.
According to the Federal Trade Commission's ``Annual Report on
Cigarette Sales and Advertisement''--just to take 1 year, the year
2000--that year represented the largest increase ever in tobacco
company spending on ``promotional allowances.'' That is the money
tobacco companies pay retailers to promote their products in prominent
locations in stores or for highly visible shelf space such as near the
cash register on an aisle that a customer must walk by to pay the
cashier. That particular year, cigarette manufacturers spent a record
$9.57 billion on advertising and promotion.
That is an increase of 16 percent from $8.24 billion spent in the
previous year. Tobacco companies also spend billions of dollars
advertising enticing promotional items--lighters, hats, other
products--they give away for free at the point of sale or, in other
words, the cash register or the place of checkout in a grocery or
convenience store. In fact, spending on such promotional or value-added
items increased by 37 percent in just 1 year.
Let's not fool ourselves. These promotional strategies and
advertisements reach our children. Three-fourths of the children visit
convenience stores at least once a week. The places where tobacco
products are marketed influence their decisions. It is that simple. We
must not allow the industry to continue targeting children.
This isn't just about an advertising and marketing scheme. It is
about that, but it is about more. Our bill not only addresses
advertising, it also addresses the second problem. What is the second
problem? It is also about tobacco manufacturers' failure to disclose
the specific ingredients in their products. While simply listing the
ingredients, toxic as they might be, might not seem like much to some,
think of it this way: Current law makes sure we know what is in
products to help people quit smoking, such as the patch or Nicorrette
gum but not the very products that get people addicted in the first
place, the cigarettes themselves. Isn't that crazy?
Think about this: Right now the Food and Drug Administration requires
Philip Morris to print the ingredients in its Kraft macaroni and cheese
but not the ingredients in its cigarettes, a product that contributes
to the deaths of more than 440,000 people a year.
I ask unanimous consent to display in the Senate three different
products: macaroni and cheese, a milk carton, as well as a cigarette
carton I have right here.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DeWINE. Right now, the FDA requires Philip Morris-owned Nabisco
to print the ingredients contained in Oreo cookies and Ritz crackers
but not the ingredients in its cigarettes, even though cigarettes cause
one-third of all cancer deaths and 90 percent of lung cancer deaths. It
is unfathomable to me that we would require the listing of ingredients
on these products yet not require the listing of ingredients for one of
the leading causes of death and disease.
Right now, the FDA requires printed ingredients for chewing gum,
lipstick, bottled water, ice cream, but not for cigarettes, a product
that causes 20 percent of all heart disease deaths and is the leading
cause of preventable death in the United States.
A product that I consumed this morning, this carton of milk, we see
all the ingredients on here. We can read them right on here: Reduced
fat milk, vitamin A, et cetera, nutrition facts. It goes into great
detail on the back. We can read all the details right here. It tells
you anything you want to know. There it is. Here is the macaroni and
cheese. We can turn it over and get the calories and all the
ingredients: enriched macaroni product, durum wheat flour, wheat,
niacin. It goes on and on and on and on, all the way down.
We see people, when they go to the grocery store, today they are so
health conscious. They pick these things up and they start reading
through to see if they have an allergy to something, to see what their
kids are eating. They will read down to see if they want to buy the
product. The same company that makes this, makes cigarettes. Yet
certain brands of cigarettes they will get, there is nothing on here.
There is the warning that has to be on here. It has been on here a
number of years. There is nothing else on here--absolutely
unbelievable.

Another way to look at this, another problem, if a company wants to
market a food product that is fat free or reduced fat or light, that
company is required to meet certain standards regarding the number of
calories, the amount of fat grams in that product. Yet cigarette
companies can call a cigarette, light or mild, and not reveal a thing
about the amount of tar or nicotine or arsenic in that supposedly light
cigarette.
Not having access to all the information about this deadly product
makes no sense. It is something that needs to change. By introducing
this bill, we are finally saying we are not going to let tobacco
manufacturers have free reign over markets and consumers anymore. Today
we are taking a step toward making sure the public gets adequate
information about whether to continue to smoke or even to start smoking
in the first place.
With this bill, we are not just saying: Buyer beware. We are saying:
Tobacco companies, be honest. We are saying: Tobacco companies, stop
marketing to innocent children. Tobacco companies, tell consumers about
what they are really buying.
I realize full well that tobacco users and nonusers alike recognize
and understand that tobacco products are hazardous to health. They
understand that. But that is not what I am talking about. I am talking
about requiring the tobacco companies to list the ingredients that are
in their products, things such as trace amounts of arsenic and ammonia.
It is time we finally give the FDA the authority it needs to fix these
problems. The legislation that we are introducing would do just that.
First, the bill would make changes regarding tobacco advertising. It
would give the FDA authority to restrict tobacco industry marketing,
consistent with the first amendment, that targets our children.
Additionally, our bill would require advertisements to be in black and
white text only, unless they are an adult publication and would define
adult publication in terms of readership. Tobacco advertising is in
magazines and on billboards along the highway. Tobacco advertising is
in convenience stores, along the aisles and at the checkout counter,
right beside the candy, where children are likely to see it. Tobacco
advertising is at sporting events, part of promotional items where
consumers can buy one and get one free. Tobacco advertising is on the
Internet and in the daily delivery of mail.
Our bill would make changes regarding tobacco advertising. It would
give the FDA authority to restrict tobacco advertising marketing
content, consistent with the first amendment, that targets our
children. Our bill would require advertisements to be in black and
white text only and would define adult publications in terms of
readership.
An issue that is related to advertising and marketing of tobacco
products has to do with the flavored tobacco products which clearly
target our children. We have probably all seen the flavored
cigarettes--flavors such as strawberry, chocolate, and wild rum. The
scent of strawberries filters through the unopened pack of cigarettes.
Guess what. The cigarettes smell like candy.

A recent New York Times article described the scent of chocolate-
flavored cigarettes ``as if someone had lifted the lid on a Whitman
Sampler.''
We need to stop this. Children will be curious about something that
smells or tastes like candy. Cigarettes should not be flavored and
marketed in such a way to attract children and to encourage children to
smoke. Our bill bans the use of flavors such as strawberry and grape,
orange, cinnamon, pineapple, vanilla, coconut, and coffee, and other
flavorings that would attract children to the product.
Second, our legislation would give consumers more information about
what is in tobacco products. Specifically, the bill would provide the
FDA with the ability to publish the ingredients of tobacco products.
Despite the fact that 40 million Americans use tobacco products, many
of them do not know what is inside the cigarettes or the tobacco
product they ingest. They do not know the ingredients like tar and
nicotine that are in the product they use. Consumers do not know what

[[Page S8153]]

additives are included in the product, additives such as ammonia which
makes the tobacco product more addictive because it increases the
delivery of nicotine.
Tobacco companies do not disclose the specific ingredients in their
products because they don't have to. Tobacco products are unregulated.
Our legislation would give consumers more information about what is in
tobacco products.
Specifically, the bill would provide the FDA with the ability to
publish the ingredients in tobacco products. It would require a listing
of all ingredients, substances, and compounds added by the manufacturer
to the tobacco paper or filter.
It would require the description of the contents, delivery, and form
of nicotine in each tobacco product. It would require information on
the health, behavior, or psychological effect of the tobacco product.
Finally, it would establish the approval process for all new tobacco
products entering the market, new products like Advance, with this
``trionic filter,'' which claims to have all of the taste but less of
the toxins of other cigarettes.
One of the most dramatic changes our bill makes is that tobacco
products will now have to be approved before they reach consumer hands.
It makes sense that tobacco products should not be able to imply that
they may be safer or less harmful to consumers because they use
descriptions such as ``light,'' ``mild,'' or ``low tar'' to
characterize the substance in the product. The National Cancer
Institute found that many smokers mistakenly believe that low-tar and
light cigarettes cause fewer health problems than other cigarettes. Our
bill would require specific approval by the FDA to use those words so
the consumers could be informed.
Mr. President, this bill will make a difference. It is a bill that
will save lives. I will have more to say about this later in the
debate.
At this point, I yield the floor to my colleague, Senator McConnell.
The PRESIDING OFFICER (Mr. Graham of South Carolina). The assistant
majority leader is recognized.
Mr. McCONNELL. Mr. President, this is indeed a historic moment for
Kentucky. Tobacco and the growing of tobacco has been an integral part
of my State since it came into the Union in 1792. In fact, if you look
carefully around the Capitol, you will find tobacco leaves actually
painted here in the Capitol of the United States of America. Many
people argue--and this is probably an exaggeration--that if it hadn't
been for tobacco, the United States might not have been colonized
because it was far and away the most profitable agricultural activity.
That is most of what the people of that era did back in the beginning
of our country.
The Senator from Ohio has correctly stated the important health
consequences of the use of tobacco. It has taken us several hundred
years to figure that out and to reach the point where we are today.
I want to start by commending my colleague, Senator Mike DeWine from
Ohio. I have never observed a more skillful legislator than he during
my time in the Senate. You can always tell when the senior Senator from
Ohio has an idea on his mind: He will come up to you quietly and pull
you off in the corner and begin to twist your arm. You know he is a
formidable force who, when he has made up his mind about an issue,
never lets go. Many bills that have cleared the Senate in the 10 years
the Senator from Ohio has been here obtain the fingerprints of Mike
DeWine. He is truly an extraordinary legislator. I know he is excited
today that the bill he believes so deeply in has a chance to be added
to this bill. It is very likely to be added to this bill as it goes to
conference. I congratulate him for his outstanding work.

Having said that, the Senator is correct; this was a marriage of
convenience. I can recall as recently as 1996, when I was running for
reelection in my State, we were wearing T-shirts that said ``keep FDA
off the farm.'' The idea of FDA regulating this product, particularly
if it went down to the farm, was universally unpopular in my State. I
am not a great fan of FDA regulation today, but these two issues needed
to be married in the U.S. Senate if we were to get either one of them
out of the Senate and on the way down the legislative road toward some
accomplishment.
Mr. President, there is simply no way to overstate how central
tobacco has been to the history of my State. We started growing it from
the beginning of the country. Kentucky's soil and climate were
particularly suitable for this cash crop. Even with all of the problems
tobacco has today, we always laughingly say in Kentucky that tobacco is
the most profitable thing you can grow on a per-acre basis in our State
that is legal. We also have a little marijuana problem in the mountains
that we try very hard to stay on top of, and I expect that growing
marijuana is more profitable. But even with all of these problems,
tobacco is the most profitable thing to grow on a per-acre basis, far
more profitable than corn, wheat, and the other crops we also grow.
In the 1930s, tobacco got in serious trouble, as a lot of agriculture
did. Part of the New Deal, in establishing farm programs, included the
establishment of the Tobacco Program. Unlike the other farm programs,
it was a permanent program. It didn't have to be reauthorized
periodically, like the other commodities that are under a Federal farm
program. It was a permanent program. It assigned the land, based on how
much tobacco was being grown in the 1930s, a certain amount, a certain
acreage, and it did that in Kentucky, Tennessee, Virginia, the
Carolinas, and Georgia. In that acreage, you had a legal right to grow.
It was like owning some stock--you could sell it; you could lease it;
it had value. We called them ``quotas.'' By the time I started moving
around the State in the early eighties and learning more about tobacco,
we had 100,000 growers in 119 of our 120 counties.
In many of these counties, there is not much flatland; but since
tobacco was so profitable on a per-acre basis, even if you had a tiny
little plot, or quota, you could make pretty good money. You would see
these quotas tucked back up in the hollows, right up on the edge of
where the mountain went straight up. We had it in 119 of 120 counties.
It was sold at auction around Thanksgiving. Farmers would cut the
tobacco, strip it, put it into the barns, where it would dry for a
month or two. It would be sold at these auctions, and the auctions
would start around Thanksgiving, go through the Christmas season, and
finish up in the early part of the year. Many of these farmers were
part time.
When I came to the Senate, the average grower in Kentucky had three-
quarters of an acre. That was the average. A lot of these folks were
part time. But this was dependable cash. They could count on it being
produced around Christmastime. For many very low-income Kentuckians, it
provided Christmas money; for some it provided the opportunity to send
their kids to college. It has been an integral part of our culture for
a very long time.
None of these folks, of course, are engaged in selling the product to
kids. They were making a legal living producing an agricultural crop
that is older than America itself. But beginning with the Surgeon
General's report in 1964, it was increasingly clear that this is a
product that is not good for you.
The campaign that has gone on over the last 40 years is legitimate.
In Lexington, KY, today, the heart of tobacco country, you cannot smoke
in a restaurant. That is in Lexington, KY, the heart of tobacco
country. And in Louisville, KY, my hometown, they have been having a
big debate about the same issue.
I say to my friend from Ohio, if anything sums up how this has all
changed, it is when you cannot smoke in a public place in Kentucky. So
I think the health argument has been made. It is, however, a legal
product. The health groups are not trying to make smoking illegal.
That, of course, would produce an enormous black market and no good
result.
So it occurred to this Senator back in 1998 when we were considering
another tobacco proposal that it was time for a buyout. I never will
forget joining Senator Lugar of Indiana in advocating a buyout back in
1998. I was rimracked--rimracked--by the two big newspapers in my
State. They said I turned my back on Kentucky culture; I had gone
Washington; I had been up

[[Page S8154]]

there so long I had forgotten what it was like in the hollows and the
tobacco fields of Kentucky.
I was criticized by the Farm Bureau and the Burley Tobacco Co-op and
all the establishment: How could you possibly be for a buyout? You are
turning your back on us.
I took a survey of tobacco growers. I got a pollster and said: Let's
go out and ask them how they feel about it. Frankly, they were against
it, too. Fifty percent were against it; about 35 percent were for it.
So the whole tobacco establishment was against the buyout in 1998 when
I first advocated it.
Now, Mr. President, I am treated as a visionary. I was ahead of my
time. If we had only joined you 6 years ago, we would have gotten this
job done sooner.
Being treated as a visionary is kind of fun, but it does not get the
job done. What is happening here today is we have an opportunity to
move on down the road toward achieving something that neither the
Senator from Ohio nor I thought was going to be achieved, which is some
kind of FDA proposal, which I am not, as I said, very wild about, and a
buyout which I enthusiastically support, and I cannot find a tobacco
grower in Kentucky today who is not for the buyout.
The occupant of the Chair I know has tobacco farmers in his State as
well. I bet he has not run into any lately who are not favorable to a
buyout. There has been a complete shift in thinking, and the reason for
that is apparent. This quota, this asset, is a shrinking asset. As the
asset shrinks, the land values go down, and it has a real impact on our
people.
Some people say: Why should the Government buy out this program? The
answer to that is the Government created the asset. The Government, by
establishing the quota program, created the asset, and now if the
Government is going to terminate the asset, it is appropriate for the
Government to compensate those for whom the asset was created.
As I said earlier, 20 years ago, we had 100,000 growers in 119 of the
120 counties in my State, and the average quota was about three-fourths
of an acre. We do quotas by poundage these days, but three-quarters of
an acre, which gives you the sense of the size, was the average.
Today, we are still growing burley in 117 of Kentucky's 120 counties,
but the average has gone up to 5.7 acres. So we can see, Mr. President,
tobacco farmers are leaving, consolidation is occurring even with the
program.

The 2002 census of agriculture, which was released a year and a half
ago, reflected about a 40-percent drop in the number of farms growing
tobacco in all of the States--not only Kentucky, in all of the States.
A 40-percent drop in the number of farms from 93,000 in 1997 down to
56,000 in all of the States. In Kentucky, from 1997 to 2002, we have
gone from 46,850 tobacco farms down to a little under 30,000. That is
still a lot of farmers--a lot of them--but their asset is shrinking.
That brings us to today. The House of Representatives--and I
particularly commend two Congressmen, Congressman Richard Burr of North
Carolina and Congressman Ron Lewis of Kentucky, who spearheaded that
effort over on the House side and very skillfully leveraged the votes
they had on a bipartisan basis in tobacco country to make it possible
for the FSC/ETI JOBS bill to pass the House at all. So that proposal, a
buyout only, is in the House bill.
The occupant of the Chair and the rest of us from tobacco-growing
States in the Senate knew we could not get a buyout only through the
Senate. That would have been our first preference. I say to my friend
and colleague from Ohio, he knows that would have been my first
preference. So we have a marriage of convenience here, not a shotgun
marriage. It is a marriage of convenience. These two issues converge,
and in the best of the legislative process, we put them together and
believe we will be able to pass them later this day to go into
conference. Congressman Burr and Congressman Lewis deserve a lot of
credit.
I also commend my colleague from Kentucky, Jim Bunning, who has been
a stalwart on this issue from the beginning and extraordinarily helpful
in every way.
I would be remiss if I did not mention Senator Elizabeth Dole, who
has been every bit as intense and committed to achieving this issue as
anyone I have ever seen. It was a big issue in her election in 2002.
She came into the Senate and said it was her top priority for North
Carolina agriculture, and she has pursued it with intensity, with
conviction, with one-on-one meetings, with Senators who were in a
critical place to make a difference. I know she and others are going to
be speaking on this issue later. But I say to her, we would not be here
today without her extraordinary effort on behalf of this proposal.
This does not guarantee a buyout. I want to make it perfectly clear
to my folks at home the job is not finished. But we have come further
than I, frankly, thought we would get. Toward the end of last year, I
had pretty much given up on the prospects of being able to get this
proposal through. But now we are on the verge of having a buyout. They
are a little different. The Senate version will be different from the
House version--that frequently happens in the legislative process--but
we are on the verge of having the tobacco quota buyout in both the
Senate bill and House bill in conference, and that is closer than we
have ever been before.
So we have made extraordinary progress, but I do want to caution
those folks at home who care deeply about this issue that we are not
there yet. We have come a long way, but we are not there yet. I know
all of us in the Senate from tobacco-growing States on a bipartisan
basis are going to continue to press this issue as hard as we can and
hopefully conclude the buyout process.
I say in conclusion, it will be a big change. We have had a tobacco
program in the burley and flue-cured States going back to 1938. It has
been a way of life. But change is already occurring. The warehouse
system is basically going away. People are growing tobacco under
contract now, not selling it to warehouses in the way they used to.
Change is coming. This is an opportunity to manage that change in such
a way that people will be fairly compensated for the value of today's
quota.
Mr. President, I am optimistic that we may be able to succeed, and I
thank all of those who contributed to this process.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, I thank my good friend and colleague from
Kentucky for his very kind comments. Those of us who work with Senator
McConnell in the Senate every day know he is a visionary. We know he
understands his State.
We also know if Senators want to know how to get something done, they
go to Mitch McConnell. I do go to him and I do talk to him and I do get
him aside, and I do not know if I twist his arm or not. I do talk to
him and seek his counsel and advice. I am kind of a pest sometimes.
He was the one who said these two bills are natural to come together.
He said that well over a year ago, and here we are today. It was his
idea or his thought that these two bills could be married, and now we
are sort of at the altar today. Yes, it is a marriage of convenience,
but I happen to believe it is going to be a good marriage. I think it
is going to be a marriage that will last, not only through this vote
today, but I think it is going to be a marriage that will last through
conference, and it is going to be a marriage that will make its way to
the President's desk.
I think it is going to be for the benefit of the American people, the
tobacco farmers, and the children of this country. I think it will be
for the benefit of all Americans and for the health of all Americans.
So I think it is going to be a good marriage, and I thank him for his
help in bringing it about.
I yield time now to my colleague and friend who has worked so very
hard on the FDA portion of this bill and has brought us to the Senate
floor, the Senator from Massachusetts, Mr. Kennedy.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I join in commending my friend and
colleague from Ohio, Senator DeWine. Today I am joining him in
presenting this amendment. We welcome obviously the workings and the
contributions of Senator McConnell together

[[Page S8155]]

with the proposal that has been described as a shotgun wedding because,
on the one hand, as we have heard a very informative and eloquent
statement of the history of the growth of the tobacco industry, the
industry itself--not the farmers but the industry itself--by and large
has resisted the ability of the Food and Drug Administration, which
generally has the overall jurisdiction in dealing with health issues,
to be able to deal with this issue in order to protect the children of
this country.
I was here in 1964 when we received the Surgeon General's report. It
arrived like the crack of a whip when we read the Surgeon General's
report and found for the first time the dangers of tobacco and its
impact in terms of the health of the population generally, in
particular with regard to children.
For years, those of us who were trying to deal with the health
aspects of this issue, and particularly the health aspects of these
issues as they relate to children, found strong opposition by the
tobacco industry. They resisted the commonsense efforts that were being
made to try and provide protections for the children of this country.
Now we have a working partnership with those who are interested in
the tobacco farmers, which I am interested in, and those who are
interested in protecting the children. We have come together to try to
make a recommendation, the result of which will provide equity and
fairness to tobacco farmers, paid for by the industry itself and not by
the taxpayers, but also to provide the Food and Drug Administration
with the kind of authority to help protect the children of this country
from the No. 1 preventable health disease for people that the Federal
Government can do something about. Tobacco causes one out of every
three deaths from cancer, one out of five deaths from heart disease and
87 percent of lung cancer cases. We must slow down the amount of
children smoking and the addiction that has taken place.

We have had a considerable period of time since the 1964 Surgeon
General's report. We have the efforts that were made in the 1970s and
1980s to try to provide labeling on cigarettes to give information to
those who were going to start smoking, and it has not been very
effective. On the contrary, it was used by the tobacco industry as an
offset, saying, look, we are not responsible. There was information
that was on the various tobacco products and people were acting on
their own.
We tried to strengthen the Office of Preventive Health. We tried to
put some labeling on smokeless tobacco. We made some very modest steps
forward in trying to deal with this issue. Then in 1998, when we had
the great debate on the tobacco issue about compensation, there was a
provision in that legislation which had a good deal of the kind of
protections that are included in the DeWine-Kennedy amendment. A great
deal of that was actually fashioned by our majority leader, Senator
Frist, who was very much involved in helping shape that particular
proposal.
It is interesting, as we had this long debate on the Senate floor on
tobacco, there was not a single amendment to try and alter that
authority. It was generally agreed that that was a pretty good balance,
going back to 1998. From that time, Senator DeWine has picked up this
opportunity and has continued to press this in the committee, and a
number of our colleagues have been particularly involved in this issue.
I think of our colleagues from Iowa and Illinois, Senator Harkin and
Senator Durbin, and a number of others who have been extremely involved
in trying to make sure we were going to provide some protections.
I mentioned the 1964 Surgeon General's report. I will include in the
Record an appropriate part of the new Surgeon General's report that was
issued on May 27, 2004. This is from the U.S. Surgeon General appointed
by President Bush. He is this administration's Surgeon General, and
this is what his findings are:

U.S. Surgeon General Richard H. Carmona today released a
new comprehensive report on smoking and health, revealing for
the first time that smoking causes diseases in nearly every
organ of the body. Published 40 years after the surgeon
general's first report on smoking--which concluded that
smoking was a definitive cause of three serious diseases--
this newest report finds cigarette smoking is conclusively
linked to diseases such as leukemia, cataracts, pneumonia and
cancers of the cervix, kidney, pancreas and stomach.

It goes on:

Statistics indicate that more than 12 million Americans
have died from smoking since the 1964 report. . . .
Another major conclusion, consistent with recent findings
of other scientific studies, is that smoking so-called low-
tar low-nicotine cigarettes does not offer a health benefit
over smoking regular ``full-flavor'' cigarettes.

Then it continues:

There is no safe cigarette, whether it is called ``light,''
``ultra-light,'' or any other name, Dr. Carmona said. The
science is clear: The only way to avoid the health hazards of
smoking is to quit completely or to never start smoking.
The report concludes that quitting smoking has immediate
and long-term benefits.

And then it illustrates these, which is very hopeful.

Dr. Carmona said it is never too late to stop smoking.
Quitting smoking at age 65 or older reduces a person's risk
of dying from a smoking-related disease by 50 percent.

This is an enormously important document. It updates the science and
it demonstrates what an extraordinary challenge we are facing.
Now why do Senator DeWine and I feel so strongly about giving the FDA
the power to give particular focus with regard to children?
This chart, ``Smoking begins early, adults who are daily smokers
began smoking,'' shows that 16 percent of all of the smokers begin
smoking by age 12; 37 percentage by age 14; 62 percent by age 16; and
89 percent begin smoking by age 18.
This is a very clear indication of what is happening out across this
country. For children, starting at the age of 12, 16 percent are
smokers. Five thousand start every day, and 2,000 become regular
smokers. Every single day, 5,000 children start smoking, and 2,000
continue.
We have to ask ourselves, what are the circumstances? Why does
DeWine-Kennedy give the FDA the power, as he has mentioned--and I will
go over that shortly--why particularly about children? As we see, the
children are the ones who get started, they are the ones who get
addicted to cigarettes. Now we ask ourselves, why is that?
This is the result of International Communications Research:

Have you seen any advertising for cigarettes or spit
tobacco in the last 2 weeks?
Teens, 64 percent; adults, 27 percent.

Do we understand that? It is 64 percent of teens, 27 percent of
adults. All we have to do to understand this is to look at the various
magazines that are coming out. In Rolling Stone, here it is: the large
Winston cigarette, ``Leave The Bull Behind.'' Everybody is young,
beautiful, and enjoying themselves. All they have to do is light up a
Winston in order to reach those circumstances.
Take Sports Illustrated. It is filled with the same kinds of
advertising. Camels, here it is:

The Roaring Twenties. Get it with a Camel. Smoke back-alley
blend with a hint of bourbon.

My friend talked about the new chocolate cigarettes. This is what we
are seeing.
The appeal is to children. The danger is to children. What we are
trying to do is give the FDA the authority and the power to do
something about protecting children.
As the Senator from Ohio knows, we lag behind virtually every other
country in the world. Our neighboring country of Canada has done
something about it; Australia has done something about it; and now the
European Union is doing something about this issue. Now we have the
opportunity to do something about it with our particular proposal.
This is a very modest program. As the Senator from Ohio has pointed
out, it is a fair and balanced approach to the FDA regulation. It
creates a new section in FDA for the regulation of tobacco products
with standards that allow for consideration of the unique issues raised
by tobacco use. It is sensitive to concerns of tobacco farmers, small
businesses and nicotine-dependent smokers, but it clearly gives the FDA
the authority it needs to prevent youth smoking and reduce addiction to
this highly lethal product. This amendment also provides the financial
relief for the hard-pressed tobacco farmers that has been outlined and
commented about earlier by Senator McConnell.

[[Page S8156]]

This proposal is a legitimate buyout plan designed by tobacco State
members for the benefit of their tobacco farming constituents. It is
far superior to the ill-conceived proposal in the House.
The heart of this amendment is the FDA provision which will lead to
fewer children starting to smoke and to fewer adults suffering with
tobacco-induced disease. Public health groups tell us it is the most
important legislation we can pass to deal with the Nation's No. 1
health hazard. We must deal firmly with the tobacco companies'
marketing practices that target children and mislead the public. The
Food and Drug Administration needs broad authority to regulate the
sale, distribution, and advertising of cigarettes and smokeless
tobacco.

The tobacco industry currently spends over $9 billion a year to
promote its products. Much of that money is spent in ways designed to
tempt children, as I pointed out, to start smoking before they are
mature enough to appreciate the enormity of the health risk. When you
get 16 percent of children 12 and younger to start smoking, they
certainly do not understand the health risks they are going to be faced
with so that they can make a judgment or decision about the risk. The
industry knows that more than 90 percent of smokers begin as children
and are addicted by the time they reach adulthood. If we are serious
about reducing youth smoking, the FDA must have the power to prevent
industry advertising designed to appeal to children wherever it will be
seen by children.
This legislation would give the FDA the ability to stop tobacco
advertising which glamorizes smoking where it will be seen by
significant numbers of children; it grants FDA full authority to
regulate tobacco advertising ``consistent with and to the full extent
permitted by the first amendment.''
The FDA authority must also extend to the sale of tobacco products.
Nearly every State makes it illegal to sell cigarettes to the children
under 18, but the survey shows those laws are rarely enforced and
frequently violated. The FDA must have the power to limit the sales of
cigarettes to face-to-face transactions in which the age of the
purchaser can be verified by identification. This means an end to self-
service displays and vending machines.
We have the chart that will show where cigarettes are being sold. It
is right next to the candy in stores. This is an average store where
you see the candy bars. Who eats the candy bars? The children will eat
this candy. Right above it are all the advertisements for tobacco
products as well as tobacco products that have the same smell, the same
scent and taste as candy as well.
This legislation will give youth access and advertising restrictions
already developed by the FDA the immediate force of law, as if they had
been issued under the new statute. There are rules that have gone
through the process extensively. They are ready to be implemented. This
legislation provides that.
Nicotine in cigarettes is highly addictive. The medical experts say
it is as addictive as heroin or cocaine. Yet for decades tobacco
companies have vehemently denied addictiveness of their products, and
no one should forget the parade of tobacco executives who testified
under oath before Congress that smoking cigarettes is not addictive.
Overwhelming evidence in industry documents obtained through the
discovery process proved the companies not only knew of this
addictiveness for decades but actually relied on it as the basis for
their marketing strategy. As we now know, cigarette manufacturers
chemically manipulated the nicotine in their products to make it even
more addictive.
Given the addictiveness of their products, it is essential the FDA
have the authority to effectively regulate them for the protection of
public health. Over 40 million Americans are currently addicted to
cigarettes. The FDA should be able to take the necessary steps to help
addicted smokers overcome their addiction and to make the product less
toxic for smokers who are unable or unwilling to stop. To do so, the
FDA must have the authority to reduce or remove the hazardous
ingredients from cigarettes to the extent it becomes scientifically
feasible. The inherent risks in smoking should not be unnecessarily
compounded.

This legislation will give the FDA the legal authority it needs to
reduce youth smoking by preventing tobacco advertising which targets
children, to prevent the sale of tobacco products to minors, to help
smokers overcome their addiction, to make tobacco products less toxic
for those who continue to use them, and to prevent the tobacco industry
from misleading the public about the dangers of smoking.
Now is the time for the Senate to address the critical health issues.
The interest of tobacco State members in passing a tobacco farmers
buyout provides a golden opportunity. By joining a strong FDA bill with
relief for tobacco farmers, this amendment should receive broad,
bipartisan support. We can accomplish both of these worthy goals during
the session. This approach is supported by the public health community
and by the farmers' organizations. Most importantly, it is the right
thing to do for America's children.
(Disturbance in the Visitors Gallery.)
The PRESIDING OFFICER. Order will be restored in the gallery.
Mr. DeWINE. I thank my colleague for his very strong statement.
Again, I congratulate him for all his great work. He has been just a
wonderful advocate. His advocacy for this issue goes back many, many
years.
Let me yield to my friend and colleague from Virginia just for 2
minutes.
Mr. WARNER. Mr. President, I thank the distinguished manager. I
commend him, Senator Kennedy, and many others who have worked on this
legislation which I wholeheartedly support.
We are privileged to have, in my State, a number of tobacco farmers
who are enduring extraordinary economic hardships. Also, I serve on the
committee on which serves the distinguished manager of this
legislation, the Health Committee, as it relates to the Federal Drug
Administration.
I understand you have coupled the two together.
That has been the objective of our committee some several years now
during which we have looked at this, and the two will be put together.
I once again indicate my support and accommodation to those who made it
possible.
Mr. President, I speak today with a great deal of anxiousness and
anticipation. As a result of the World Trade Organization's finding of
U.S. noncompliance with international trade obligations, retaliatory
tariffs have been exacted on U.S. exports. Each month these tariffs
will increase until Congress passes the FSC/ETI bill. The costs to the
American economy can be avoided. I am pleased that we can pass this
bill today and am hopeful that it can move swiftly through conference.
Oftentimes things move at a glacial pace here in the U.S. Senate. But
if there is one thing I have learned in my many years as a Member of
this institution, it is that there are rare instances that the pace
becomes so swift that one could miss something if he or she were to
blink. The announcement that we would return to consideration of the
FSC bill with an amendment on tobacco may have struck many of us as an
indication that today was to be one of those days. However, today is
just the next step in the long journey for many of us in this room.
For a number of years I have worked with many of my colleagues in the
Senate and Members of the House of Representatives to address an issue
of vital importance to the rural communities of the South. We have met
with our farmers, drafted numerous pieces of legislation, consulted
with experts in economic and agriculture policy--and we have done it
over and over again. Today, the Senate finally stands poised to speak
as a body to end the outdated tobacco quota system.
Our tobacco-growing communities, long dependent on the cultivation of
tobacco, have been devastated by foreign competition and the quota
system that keeps the price of leaf artificially high. The amendment
submitted by the Senator from Ohio contains language from a bill
crafted by a coalition of members from the tobacco farming States of
Kentucky, North Carolina, Tennessee, South Carolina, Georgia, and
Virginia. The Tobacco Market Transition Act will end the current
tobacco quota system, provide compensation to growers and owners of
quota, and provide grants to States and institutions of higher
education to reduce

[[Page S8157]]

community reliance on the production of tobacco.
I have been a member of this body for 26 years and can say without
equivocation that for the farm communities of southside and southwest
Virginia there is no more important national policy. I can also say
that not much is more controversial and polarizing than tobacco
legislation. There are concerns with a buyout that ``makes farmers
instant millionaires,'' or that it raises taxes, or that it imposes a
cost to the general treasury. I am pleased to say that this amendment
does none of those things.
Still, many have stated that a buyout will not pass the Senate
without being coupled to legislation specifically giving the Food and
Drug Administration the authority to regulate tobacco products. While
these two policy goals have for years seemed mutually exclusive,
sometimes in the legislative process major national needs that appear
to be in conflict come together to forge a comprehensive national
policy. Such is the case today, as we consider both a tobacco quota
buyout and FDA regulation of tobacco as part of one amendment.
While many tobacco farmers vehemently opposed FDA regulation of
tobacco not even 10 years ago, the issue has evolved since then. Today,
the simple fact today is that most tobacco farmers support FDA
regulation so long as it is coupled with a tobacco quota buyout. That
has certainly become the predominant view of Virginia tobacco farmers
who I have spoken with over the last several years. And, that is
clearly the view of several groups who represent growers in my State.
The Virginia Farm Bureau; the Virginia Tobacco Growers Association; the
Virginia Sun-cured Growers Association; the Virginia Dark-Fired Growers
Association; the Virginia Agricultural Growers Association; Allies for
Tobacco, Inc.; and Concerned Friends for Tobacco all have signed on to
a set of core principles stating that it is in the best interests of
the public health community and the tobacco producer community for the
FDA to have authority to establish fair and equitable regulatory
controls over tobacco products.
But not only has the farm communities' position on FDA regulation of
tobacco evolved over the years, so has the position of the largest
tobacco company in the United States, if not the world. Less than 10
years ago, Phillip Morris actively opposed efforts to grant the FDA
authority over tobacco. Today, that same company, now known as Altria,
which is headquartered in the Commonwealth of Virginia, is actively
supporting legislation to grant the FDA the authority to regulate
tobacco.
What we have seen over the last 10 years is an amazing coming
together of public health advocates, tobacco farmers, and a major
tobacco company. Many in the Congress have helped lead the way. The
amendment that stands before us is the culmination of the hard work of
many, including Senators Frist, McConnell, Kennedy, DeWine, and the
chairman of the HELP Committee, Senator Gregg, who always helped keep
this issue on the committee's agenda. My colleague from Virginia,
Congressman Tom Davis, also played an important role.

The compromise that has been reached in the Senate is an important
one not only because, as I stated earlier, it will provide the help
that our tobacco farmers so desperately need. It is also important
because it will improve our public health. And that second point is an
important one to me.
You see, my father was a doctor. He was a surgeon gynecologist, and
he dedicated his life to medical research. Much of his research was
spent on efforts to eradicate cancer. Ironically enough, though, it was
ultimately this same devastating illness that my father worked so hard
to find a cure for that ultimately took his life.
So, as I think about my father today, I know that he is smiling down
because the Senate is about to pass a bill that could help reduce the
cases of cancer and reduce the number of premature deaths in this
country related to tobacco.
We know that smoking is one of the foremost preventable causes of
death in the United States. It is estimated to cause over 400,000
deaths in America each year. That is why we have warning labels on
cigarette packages and public awareness campaigns against smoking. The
dangers of smoking are clear.
The bill before us today will help us reduce those dangers in many
ways. Most notably, in my view, is the modified risk section, which I
believe is the hallmark of the FDA portion of this amendment. This
section provides the FDA the authority to approve modified risk tobacco
products that reduce harm of tobacco-related disease and benefit the
public health. With the imprimatur of the FDA, current users of high-
risk tobacco products could be encouraged to use these reduced risk
products. And, as they move down the continuum or risk with the
products they use, we should see a corresponding decrease in the number
of tobacco related illnesses as well.
While the public health benefits of this amendment are strong, it is
also very important to make clear that the FDA legislation before us
today is balanced. I worked extensively with Senator DeWine and Senator
Kennedy to make sure of that. For example, this legislation will in no
way restrict the rights of adult Americans who wish to smoke or use
other tobacco products. At my request, and the request of others,
Senator DeWine and Senator Kennedy modified their original legislation
to make it clear that the FDA would not have the power to ban all
cigarettes and other tobacco products. Under this amendment, that power
is reserved to Congress, where it properly belongs.
Today we take a great step to protect the public health of all
American citizens and the economic health of our tobacco farmers, their
families, and their communities. The passage of this amendment is a
great triumph for this body and represents the spirit of legislative
cooperation and compromise that has long been the cornerstone of this
institution. It is my sincere hope that we can soon celebrate the final
conference report for this bill and the inclusion of the amendment on
which we vote today.
Thank you, and I yield the floor.
Mr. DeWINE. Mr. President, I thank my colleague for his support and
for his very good statement.
I yield at this time to my friend and colleague from Kentucky.
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. BUNNING. Mr. President, I rise today in support of the FSC/ETI
bill that will end tariffs on our manufactures. But also, it will
finally bring much needed relief to the tobacco growers of my State.
The bill before the Senate today addresses many important tax issues
that face American companies, both at home and abroad.
The many international provisions that are contained in the bill are
important changes to a badly outdated part of the Tax Code.
The centerpiece of this bill, of course, is a provision to expand tax
incentives to America's manufacturing sector. During debate on this
bill, I was pleased that we adopted the bipartisan amendment that I
offered with Senator Stabenow.
Under our amendment, America's manufacturing companies--small and
large--will see their tax rate decline by almost 1.5 percent this year.
That is compared to the rate cut this year of only one-third of 1
percent that was previously contained in the bill. It is imperative
that we get this relief to our U.S. manufacturers as quickly as
possible.
We were also able to include in this bill my amendment to extend the
net operating loss period to 5 years rather than the 3-year period
included in the original bill. This important provision, which will
allow companies facing financial challenges to see increased cash flow
to assist them in investing and hiring, is one that Senator Conrad and
I have worked on together in committee.
The WTO ruling on the FSC-ETI regime authorized the European Union to
start imposing sanctions of over $4 billion on U.S. exports. During the
first month of tariffs we have seen products from apparel to paper hit
with penalties approaching 10 percent. Many other products important to
my State, such as horses, are on the initial retaliation list and will
also face this tariff.
They have a list of over 1,600 U.S. products from nearly every part
of the

[[Page S8158]]

U.S. economy that will be penalized because we have not repealed the
FSC/ETI regime.
But most importantly, this amendment will help my tobacco growers.
Since Daniel Boone first came through the Cumberland Gap, farming has
been both the economic and cultural backbone of the Commonwealth. The
family farm is the basis of Kentucky culture and it has been based
around tobacco.
For years we in Kentucky have tried to diversify from the tobacco
crop.
We have had some success, vegetables, beef cattle, cat fish, corn,
chicken and other crops have been quite successful, worm farms and
other have not been as successful. But nothing brings as much as a
return as tobacco.
Most of the tobacco farmers in my State are not full-time tobacco
farmers. They either have an off-farm job, or primarily raise other
crops or raise livestock.
But the money they get from tobacco, pays their mortgage, or puts
their kids through school or allows them to keep farming. Outside of
the western part of Kentucky, we do not have tens of thousands of acres
of flat land. We need a crop that grows on rolling hills and that
thrives in our climate. Tobacco does that.
But a number of things have conspired against tobacco in the last few
years.
The previous administration declared war on tobacco and by extension,
tobacco farmers. The Asian economic crises have hurt exports. The
Master Settlement Agreement and State tax increase have dramatically
raised the price of cigarettes. And although American tobacco is still
superior, the companies have invested so much overseas that the gap has
narrowed between American tobacco and cheap foreign tobacco.
As I am sure most of my colleagues know, there are no direct payments
to tobacco farmers, but we do have a price support and production
control program. Growers own quota which they can buy, sell, or lease.
The government administers this program to make sure it runs
effectively and that growers only sell what they are allowed to under
the quota system. If you grow too much, you can't sell it.
But the quotas have lost 60 percent of their value since 1998. Not
many businesses would be around if they lost 60 percent of their income
in 5 years, and we have lost a lot of growers. We have many who are
barely holding on. They need help, we can give that to them and get the
government out of the tobacco business at the same time.
We don't have big tobacco in my State. The last big tobacco company
pulled out a few years ago.
What we have is little tobacco. We have over 30,000 tobacco growers.
We also have over 100,000 tobacco quota owners. Many of those are
elderly who can no longer work their land, so they lease their quota
and that income becomes a major part of their retirement security.
That quota is tied to the land. It has a direct effect on the
property taxes Kentuckians pay.
Those taxes build and fund schools, provide clean water, pay for
emergency services, pave roads and help fund every community in
Kentucky. If we don't help my growers get relief, we face the very real
prospect of having ghost towns in Kentucky.
The amendment we have before us today will buy out the tobacco
program.
We will give our growers relief and end the federal price support
program. We will also let many growers, whose average age is 62, retire
and get out of the business. Dr. Will Snell, of the University of
Kentucky, estimate 70-75 percent of tobacco growers will get out of the
business with a buyout. We will allow growers to pay off their debts
and enjoy their retirement.
The amendment also has FDA Authorization of tobacco. This is a
dramatic increase in the regulatory authority of the FDA.
I am not comfortable with it. I do not want the FDA inspecting my
growers' crop.
FDA regulation is a bad idea. My growers are in dire straits. They
desperately need help. FDA regulation is a very steep price to pay for
a buyout, but if it is the only way to get my growers relief, this
Senator will vote for it.
Make no mistake about it, the program will end. The only question is
whether we end it on our terms or big tobacco terms. Please, please
support the tobacco growers in this country and give them an equitable
solution for the little tobacco growers all across this country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, I thank my colleague from Kentucky for his
very good statement. I assure my colleague that with the language which
has been drafted in the FDA section, we have taken certainly one of his
concerns into consideration and the FDA is not allowed on the farm.
There is protection in there. I appreciate his comments.
I ask unanimous consent to add Senator Collins as a cosponsor of this
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DeWINE. Mr. President, one of the very enlightening aspects about
this legislation, the FDA part of this legislation, is how many of the
editorial writers--not just in the national papers but many of the
papers throughout the country--have weighed in on this issue and they
have done this very eloquently. Frankly, they have been more eloquent
about this than I have been in the Senate.
I will take a couple of minutes and read what some of the editorials
have said about this issue. I start with the Lexington Herald Leader,
Lexington, KY, May 21 of this year.

Tastier poison; New cigarettes prove need for FDA control.
Mandarin Mint. Smooth Fusions. Midnight Berry. We're not
talking herbal teas or fruit smoothies, folks. We're talking
cigarettes.
The latest evidence that the tobacco industry has no shame
is the marketing of sweet-flavored cigarettes. . . .
Straight-faced company spokesmen say the new brands are aimed
at adult palates. Please. The goal is obvious: Appeal to kids
and hook new smokers.

This lethal version of candied cigarettes, along with the appearance
of the new generation of ``safer cigarettes'' is also the latest
evidence that Congress should at long last give the Food and Drug
Administration oversight of tobacco.
The FDA has the authority to monitor a manufacture's claim about a
pack of breath mints or chewing gum but the tobacco industry can roll
out new brands of cigarettes and claim they pose less risk of emphysema
and cancer or help smokers quit, and the FDA has no say-so at all.
This is from the Columbus Dispatch, Columbus, OH, June 26, 2004:

The legislation to allow FDA regulation of the tobacco
industry is far from frivolous. It has the support of many
anti-smoking groups, along with cigarette maker Philip
Morris. The tobacco industry has operated irresponsibly for
decades, and every time it shows a sign of turning over a new
leaf, it does something to remind people that it is not
trustworthy. FDA regulation should have happened decades ago.
That smoking-cessation products are heavily regulated, but
the products that actually kill people are not is the
ultimate absur-
dity. . . .
Congress has a duty to protect public health, not to shield
an industry that has a long history of deceit and death.

Mr. KENNEDY. Will the Senator yield?
Mr. DeWINE. I yield to my colleague from Massachusetts.
Mr. KENNEDY. There was reference made by our friend, the Senator from
Kentucky, about the FDA and its ability to interfere with farmers, to
somehow impose their guidance or will upon farmers.
I ask if the Senator from Ohio does not agree with me that we
addressed this issue on page 23 of the amendment, which says:

The provisions of the chapter shall not apply to tobacco
leaf that is not in possession of a manufacturer of tobacco
products, or to the producers of tobacco leaf, including
tobacco growers, tobacco warehouses, and tobacco grower
cooperatives, nor shall any employee of the FDA have any
authority to enter on to a farm owned by a producer of
tobacco leaf without the written consent of such producer.

This issue is of concern. This was not what we were looking for.
Looking at it is enormously important. Those under that view will have
assurances from the Senator from Ohio. Not only our assurances but the
legislative assurances that the FDA is not in any way going to have any
role whatever in

[[Page S8159]]

dealing with any of the producers themselves, the farmers.
Mr. DeWINE. I thank my colleague for the question. I am looking at
the same language. He read it correctly. It is directly in the
amendment. It was originally in the bill that my colleague from
Massachusetts and I wrote and introduced.
I have penciled in here ``FDA can't go on the farm,'' which is a
shorthand version of what he said. But actually it goes further than
that. It is not just on the farm but it is basically any kind of FDA
interference in this area.
In earlier versions, years ago, the bill may have given my colleague
from Kentucky something to worry about but this version clearly makes
it abundantly clear the FDA cannot do this. I am glad my colleague has
pointed this out.
I have other editorials I can read but I see my colleague from
Illinois is in the Chamber. If he is ready to speak, I am more than
happy to yield him time.
Mr. DURBIN. I thank the Senator from Ohio. I don't know how much time
is remaining. I don't want to take too much.
Mr. DeWINE. I inquire of the Chair how much time remains.
The PRESIDING OFFICER. Thirteen minutes remain.
Mr. DeWINE. Mr. President, I say to my colleagues, the Chair, and to
my colleagues in the Chamber, I have only had one Senator come to me
requesting time in opposition. I probably would propound a unanimous
consent request to take some time from the opposition with the
understanding that--I have not done that yet--anyone who wants to speak
in opposition, obviously, we would make that time available.
I yield 10 minutes to my colleague from Illinois.
Mr. DURBIN. Mr. President, I thank the Senator from Ohio and the
Senator from Massachusetts for their leadership.
This is an issue which hits close to home for many Americans. It is
an issue we have faced in our families where people we dearly love have
been victims of tobacco-related disease. It is an issue which we face
every day in America when children make the decision to start using
tobacco products--either spit tobacco or cigarettes--and become
addicted, and one out of every three of those children who choose the
addiction will die from it. That is a reality.
Tobacco is still the No. 1 preventable cause of death in America
today. It is preventable if we do our job, regulating the product.
The bill before the Senate says we will give to the Food and Drug
Administration the authority to regulate tobacco. The Food and Drug
Administration operates under a law which specifically excludes
tobacco. It said tobacco is neither a food nor a drug. It falls between
the cracks.
So the Food and Drug Administration has the responsibility, when it
comes to macaroni and cheese, to make sure it is wholesome, to make
certain it is safe, but it does not have that same opportunity or
authority when it comes to Marlboro cigarettes or any other package of
cigarettes. When you look at the back of the macaroni and cheese, it
states the contents and ingredients. You can look all over the Marlboro
cigarette package and you will never figure out what is in it. It is
more than just natural tobacco. There are a lot of chemicals in here,
and these chemicals are harmful.

What Senator DeWine and Senator Kennedy do today is to call us
together and say, finally, after so many years--40 years of being
convinced that tobacco causes cancer, heart disease, stroke, lung
problems--after all these years we are going to give to the Food and
Drug Administration the authority to regulate this product.
This is not a radical idea. This is common sense. Mr. President, 15
years ago, as a Member of the House of Representatives, I offered an
amendment to ban smoking on airplanes. It was an amendment that was
opposed by the tobacco lobby, opposed by the leadership, Democrat and
Republican, in the House of Representatives, and no one thought I had a
chance. But I won, and I passed it. It became the law of the land. Now,
if you went into an airplane and said: ``Incidentally, we decided to
change the rules. Anybody who wants to smoke, go ahead,'' people would
just stand up and say: ``Are you crazy? Secondhand smoke can kill you.
We're not going back to those old days.''
What Senator DeWine and Senator Kennedy are doing is telling us: Look
forward to a future where we start making commonsense health decisions
that are going to save the lives of millions of Americans.
Now, what is going on politically here? Sadly, there is an effort
coming out of the House of Representatives to put together an $8 or $9
billion buyout of those who have tobacco allotments in America. It is
an old piece of agricultural law that some people were able to claim
the right to grow tobacco and be given a Government allotment. It is
the closest thing to being given some title or royalty that you can
imagine because those folks are then entitled to grow tobacco and have
special treatment under the law.
What they have said is, if we want to end this program, you have to
pay us to end it. We have made money over the years with it, but you
have to pay us to end it, $8 or $9 billion.
Well, I swallow hard when I think about that notion of giving $8 or
$9 billion from hard-working taxpayers across America to these tobacco
growers. But I finally was brought to the conclusion that if that is
the only way we can get FDA regulation of tobacco products in America,
all right, I will buy that compromise. It is a painful compromise to
think of that much money, but that is the reality.
What we have today with this proposal from Senator Kennedy and
Senator DeWine is to move us in the direction of what we need: to put
into FDA law the power to regulate tobacco; for the first time in our
history, to give the Food and Drug Administration the authority to
restrict tobacco advertising.
Cross the border into Canada and look at a package of cigarettes.
There is a clear warning--not the worthless warnings we have been stuck
with for four decades--clear warnings that might give somebody some
pause before buying this dangerous product. Our FDA ought to have that
same authority.
We also need more authority to aggressively stop the sale of these
deadly tobacco products to our kids. The Food and Drug Administration
can do that, but they need the authority to do that.
We also need to make sure the Food and Drug Administration has
stronger warning labels that prevent the tobacco industry from making
terrible misrepresentations about their product.

Do you remember ``light'' cigarettes--lower in tar, lower in
nicotine, and so forth? It turns out it was a complete fraud on the
public. A class action lawsuit brought against the tobacco companies
disclosed that they knew they were lying to the American consumers but
did it anyway. They made so much money at it they were going to do it
anyway.
Well, they were nailed with a lawsuit that a lot of people are
talking about. But it is because of their deliberate misrepresentations
about the facts of their product that they were nailed by this lawsuit.
The passage of this law gives the Food and Drug Administration the
right to police tobacco advertising, to make certain they do not lie
and mislead American consumers.
It also sets standards for reduced-risk products. There is a lot of
research going on here. I do not know if it will lead to anything
positive, but it leads us in the right direction, as far as I am
concerned.
I know there are others on the floor who want to speak. I am happy to
cosponsor this measure. I believe this is a historic moment that the
Senate has a chance to acknowledge what the tobacco companies
themselves have acknowledged. When they entered into an agreement with
the States' attorneys general across America, they acknowledged that
the Food and Drug Administration needed to have the authority to
regulate their product. A major company, Philip Morris, has come
forward and said they accept that. They are prepared to accept this
proposal from Senator DeWine and Senator Kennedy. Now we have a chance
to put it in law.
What we are going to do with this legislation is save lives in
America. We are going to reduce the incidence of pulmonary disease, the
incidence of disease and stroke and heart attack and death associated
with tobacco.
If we did nothing else in this session--and we may do nothing else--
this

[[Page S8160]]

is the single most important thing we can do to make America a
healthier place and to give our kids a fighting chance. I stand in
strong support of this proposal by Senator Kennedy and Senator DeWine.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, I ask unanimous consent that Senator Snowe
be added as a cosponsor of S. 2461, the Family Smoking Prevention and
Tobacco Control Act.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DeWINE. Mr. President, I see my colleagues on the floor. Before I
yield time, I want to read one more editorial. As I said, to me, it is
interesting how the editorial boards across this country have spoken
out about this bill, and I think have done so very eloquently.
On June 19, 2004, the Cleveland Plain Dealer wrote as follows in
their editorial:

Most people know that smoking cigarettes is risky. But no
one can say for sure what's in them, or if ``low tar''
cigarettes and other ``safer'' smokes live up to their
claims.
The bill would give the FDA the power to approve
cigarettes, to force them to live up to their billing and to
allow the states to regulate advertising. Altria, alone among
cigarette makers, has blessed the DeWine-Kennedy bill--
possibly as a shield from lawsuits, although aggressive trial
lawyers will try to turn that shield into a smoke screen.
However, the bill does not exceed its grasp. For example,
it forces companies to eliminate tutti-frutti scents that
appeal to youngsters, but it prevents the FDA from banning
nicotine, that poisonous active ingredient in cigarettes.
The growth of so-called ``low-tar'' or ``mild'' cigarettes,
the lure of fruit scents and the biochemical stew of
ingredients stuffed into smokes demand some government
supervision.
Cigarettes can't be banished. That would make outlaws of
thousands whose only crime is destroying their own health.
But the FDA should know exactly what Americans are smoking
when they light up. The DeWine-Kennedy bill will help clear
the air.

Mr. President, I yield to my colleague, Senator Reed from Rhode
Island.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, I commend and thank my colleague Senator
DeWine and my colleague Senator Kennedy for this legislation. They have
been in the vanguard for many years of protecting the health of all
Americans, but particularly protecting the health of children. I have
also been active, along with Senator Durbin and others, in this effort.
Actually, in August of 1996, the FDA promulgated rules to regulate
the tobacco industry. But these rules were litigated to the Supreme
Court. In a very closely divided decision--5 to 4--the Court
essentially said: Congress, you must make it clear that the FDA has the
authority to regulate the tobacco industry. That is what the DeWine-
Kennedy amendment is doing--making it very clear, very explicit that
the Food and Drug Administration may regulate the tobacco industry.
Now, there was a question about the law, but there was no question in
the minds of the Justices about the effect of tobacco as a public
health issue. Justice Sandra Day O'Connor stated, in her majority
opinion, that tobacco was ``perhaps the single most significant threat
to public health in the United States.'' Justice Breyer, who was in the
minority, recognized that the FDA should already have this power
because essentially their mandate is ``the overall protection of the
public health.'' And this is the gravest crisis in public health we
face in terms of a product that is unregulated, certainly in our
economy.
The DeWine amendment brings this issue to, I hope, resolution today.
I hope we will give authority to the FDA to involve itself in the
greatest public health issue that faces the United States; that is, the
consumption of tobacco products.
This DeWine-Kennedy amendment also is very timely because less than a
month ago a 50-year study was published in the British Medical Journal
chronicling the outcomes of almost 35,000 British doctors who smoked.
This detailed, longitudinal study is the first one to clearly link
cigarette smoke to lung cancer and show that on average, a life of
smoking will be a decade shorter than a life without smoking. Of the
35,000 subjects, epidemiologist Richard Doll reports that almost half
of all persistent cigarette smokers died because of smoking, and a
quarter died before age 70. Perhaps more striking was a finding that
quitting smoking can mitigate or even reverse these effects. For
instance, stop smoking by the time you are 30 and you will have the
same average life expectancy as a nonsmoker. Stop at 50 and you will
lose only 4 years of life instead of 10.
Clearly, there is still time to help, and particularly to help the
children of America. But that can only be done if the FDA has the power
to regulate the sale and distribution of cigarettes.
That is something at the heart of the Kennedy-DeWine amendment. It
will ensure that children will not have easy access to tobacco products
by restricting tobacco advertising and limiting the sale of cigarettes
to face-to-face transactions where the purchaser's age can be verified.
It will provide for stronger warning labels and allow the FDA to change
their text over time to keep their impact strong. And it would help the
46 million Americans addicted to cigarettes by authorizing the FDA to
reduce or remove hazardous ingredients from cigarettes, as science
allows. These are important provisions that will have a real impact on
the health of all Americans, and it is no surprise that this
legislation has enlisted the strongest possible support of, among
others, the American Cancer Society, the American Heart Association,
the Campaign for Tobacco-Free Kids, and the American Lung Association.
We understand the dangers of cigarette smoking. This legislation will
empower the Food and Drug Administration to confront those dangers head
on, to confront the most significant public health problem that faces
America. It will allow them particularly to protect children. It is
typical of the concern and the conscientious efforts of the two
principal sponsors, Senators DeWine and Kennedy. I thank them for their
effort, and I join them in this endeavor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, I thank my colleague for his eloquent
statement.
There are still some who question whether the tobacco industry is
targeting young people. If anybody doubts that, I refer them to what
the tobacco industry is continuing to do as far as advertising. Sports
Illustrated is read by adults, but it is certainly read by kids,
anybody who has a teenager who is interested in sports. And you don't
have to be a teenager. Kids start reading Sports Illustrated when they
are 9, 10 years old. I did. When you look at some of the advertising in
Sports Illustrated, it is absolutely, unbelievably focused on kids.
Here is an example. This is Sports Illustrated, 2002 NFL preview.
Look at the back. An awful lot of kids are going to see that. Here is
advertising for smokeless tobacco. Just take a look at that. ``Where's
the chicks? Intense premium tobacco taste, Rooster, icy minute, the
bold one.'' If that isn't targeted to kids, teenagers, I don't know
what is.
The next one, if that is not targeted to young kids, I don't know
what is. I suppose it is targeted to someone 22, 23, but it is also
targeted to someone 16. We know where they are going and what they are
doing.
Let me get back to some of the editorials. The Hartford Courant said
it very well on June 14:

Four decades ago the Government linked smoking to lung
cancer and urged Americans to kick the habit.
Now the Surgeon General Richard Carmona says the impact on
health is ``even worse than we knew'' and has added nine
diseases to a growing list conclusively linked to cigarettes.
The latest includes leukemia, cataracts, pneumonia and
cancers of the cervix, kidney, pancreas, and stomach.
Although many people have quit, smoking remains the leading
contributor of death in America, killing 440,000 people each
year. Smokers typically die 13 to 14 years younger than do
nonsmokers. With 2 percent of adults smoking, the rate is
declining so slowly that the Government concedes it will not
meet its goal of 12 percent by 2010. The Surgeon General's
sobering report ought to stir Members of Congress to take up
legislation to give the Food and Drug Administration
authority to regulate tobacco. A proposed bill would let the
FDA prohibit the marketing of tobacco to minors, require
stronger warning labels, a listing of ingredients on
packages, and limit the use of harmful chemicals in the
product.

[[Page S8161]]

That was from the Hartford Courant.
An editorial from the Columbus Dispatch, May 30:

Congress needs to grant FDA the power to regulate big
tobacco. Because of its long history of reckless disregard
for the truth, the tobacco industry is in dire need of strong
Federal regulation. The latest demonstration of industry
irresponsibility is the introduction of cigarettes in flavors
such as mandarin mint and mocha taboo. Such cigarettes would
seem to be a violation of the multibillion-dollar 1998
tobacco settlement which was supposed to prohibit tobacco
companies from marketing to minors. This isn't the first time
the tobacco companies have blown smoke in the face of the
tobacco settlement. A study in the New England Journal of
Medicine reported in August 2001 that tobacco companies spent
more on advertising in youth-oriented magazines in the 2
years after the agreement was signed than they did in the
year it was signed. Let's not forget the years of lies
spewed by the tobacco companies as they claimed cigarettes
posed little or no danger to smokers, all the while
knowing the deadly truth. Congress needs to pass it. Then
the FDA needs to take aggressive action. The tobacco
companies have operated for far too long with inadequate
oversight, leaving death in their wake. It is time for
Congress to stand up for the people and grant the FDA the
power to crack down on this irresponsible industry.

So said the Columbus Dispatch on May 30 of this year.
The Hartford Courant again, another editorial, January 26, 2004:

The U.S. Food and Drug Administration regulates food, drugs
and medical devices, but it has no authority over tobacco
products which annually are linked to millions of deaths.
When he was FDA commissioner in 1994, David Kessler
proposed regulation of cigarettes, but the Supreme Court
nixed the idea, saying only Congress could give the agency
such power.
Giving the FDA oversight of a product that is detrimental
to public health seems like a matter of common sense.
Congress, however, hasn't seen it that way.
The FDA has long performed a critical service by testing
and regulating consumer products to ensure safety. That
authority should extend to tobacco.

Another editorial, this one from the Akron Beacon Journal, dated June
28 of this year:

The Federal Food and Drug Administration can make
manufacturers disclose what goes into your bottled water,
foods and medications. [But] it can't make tobacco companies
reveal what goes into their cigarettes and other tobacco
products. The agency can demand that drug companies support
with research the health claims they make for their products.
[But] not so with tobacco companies.
Tobacco products were identified as leading causes of
cancers, heart disease, and other serious ailments decades
ago. They account for billions of dollars in health care
costs and are a factor in the deaths of several hundred
thousand people every year. It is long past time to put the
products under regulations at least as strict as those for
ice cream.

The Akron Beacon Journal continues:

It has been four years since the U.S. Supreme Court told
the Food and Drug Administration and its commissioner at the
time, David Kessler, that Congress had not given the
authority to regulate tobacco products. Congress has an
opportunity to fill the void through bipartisan bills
recently introduced in the Senate by Ohio's Mike DeWine, a
Republican, and Democrat Edward Kennedy, and in the House by
Tom Davis, a Virginia Republican, and Henry Waxman, a
Democrat from California.
This legislation would grant the FDA the necessary
authority, none too soon, to protect the public health and
guard children, in particular, against addictive and risky
tobacco use.
Among other provisions, the legislation would give the FDA
approval authority over all new tobacco products entering the
market, bar the use in tobacco products of flavors that are
enticing to children, and restrict advertising and promotions
that target children. It also would require companies to
provide research information for claims on reduced-risk
products and to submit a list of product contents and
components, including the paper and filters.

This is an editorial from the Akron Beacon Journal, June 28, 2004.
Mr. President, we are getting close to the end of this debate. I say
to any of my colleagues who have any desire to come to the floor of the
Senate and argue in favor of this amendment or come to the floor and
argue in opposition to the amendment, we are getting close to closing
out this debate. I invite them to come to the Senate floor. We are
getting very close to coming to the end of the debate. Now would be the
appropriate time to come to the floor.
At this point, I yield to my colleague, Senator Lautenberg.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. LAUTENBERG. Mr. President, I thank my colleague from Ohio for the
good work he so often does on behalf of the safety and well-being of
young people. Therefore, it is no surprise to see Senator DeWine
sponsoring or creating this kind of amendment--something that can
markedly affect the well-being of children in our society in general.
I want to lend my support to the DeWine-Kennedy amendment, to see if
we cannot finally get past these years of delay and obstruction, to
permit the FDA to have jurisdiction over tobacco products. It is long
overdue, and I am hopeful that the Senate will take this historic step
today.
There are very few people my age who weren't induced to smoke by all
kinds of influences. When I was a soldier many years ago in Europe
during the war, the thing we used to look for in our emergency pack was
the little packet of four free cigarettes. We never realized it, but
the military was marketing for the cigarette companies, because once
someone had a few cigarettes, that was it for almost a lifetime.
Nothing, other than perhaps some illegal drugs, illicit drugs, such as
cocaine, is more addictive than tobacco. Perhaps even they don't
compare.
I used to smoke. I smoked a lot. Fortunately, my youngest daughter,
who was about 7 years old at the time, had more sense than I did. She
said to me: Daddy, today we learned in school that if you smoke, you
get a black box in your throat.'' She said, ``I love you; I don't want
you to have a black box in your throat.'' That was after dozens of
times that I tried to stop smoking. I smoked for 25 years. There were
dozens of times I swore I would stop smoking and never could quite
muster the energy or conviction to do it. But when she gave me that
message, within 3 days I was no longer smoking. All I had to do was
remember how her eyes looked at me so pleadingly and said, ``Daddy,
stop smoking.'' That was it for me.
When I came to the Senate, I was determined to do something where I
might be able to protect Americans, especially our young people, from
the dangers of tobacco. I am pleased to have worked on tobacco control,
starting long before it became a mainstream issue.
In 1987, along with now-Senator Durbin, formerly Congressman Durbin,
we authored the law banning smoking on airplanes. It was a tough fight
and it was said, ``You will never get it done.'' But we persisted and
convinced a lot of people that changing the rules about smoking in
airplanes was worthwhile. It had a long, arduous trip. First, we were
able to negotiate for 3 hours, or 2 hours, and settle for 2 hours, with
a promise that we would examine the result and maybe change our minds
in 18 months and relent.
I had a friend in the tobacco business, and one day he said to me,
``Frank, come on, this hasn't been proven dangerous yet.'' This goes
back to the 1980s. I said, ``I'll tell you what. If you can convince
your father and the other members of your family to start smoking and
confirm that they smoke two packs a day, and do it for a year, I will
call off my opposition.'' Obviously, that never happened. They knew how
dangerous tobacco was, as did the manufacturers of tobacco products
going back to the 1930s.
The addiction and the harm that comes from nicotine was widely known
by the people in the industry, again, in the 1930s. We saw that once
nonsmokers could experience a smoke-free environment in the cabin of an
airplane, they began to demand it in more places than that. It changed
things radically for people who were unable to fly because they had
respiratory conditions. And they learned something. If cabin attendants
who didn't smoke were on a flight, they learned that the nicotine
residue could last for many days after in their body fluids. So it was
pervasive. The attitude on tobacco began to change radically.
I had an opportunity to write further law, and I put into the
statutes a law that required that any building that children inhabited,
whether it was a library, hospital, youth hostel, daycare center, could
not have any smoking present unless it was in a confined room, a single
room that was ventilated to the outside, as long as Federal

[[Page S8162]]

money was being given there. That succeeded in turning into law and
protecting our children even further.
I have long supported FDA jurisdiction over tobacco--a milestone I
hope we will reach today.
Mr. President, make no mistake, tobacco addiction is still a huge
problem in America. Tobacco continues to be the No. 1 cause of
preventable death and disease in our Nation.
Each year, tobacco claims over 430,000 lives in the United States and
serious health impairment occurs as a result of tobacco--emphysema,
heart trouble, all kinds of terrible conditions associated with
tobacco.
According to the Centers for Disease Control, if current tobacco use
continues in the United States, an estimated 6.4 million children will
die prematurely from a smoking-related disease. This is alarming
because every day nearly 5,000 young people buy cigarettes for the
first time.
Once again, that addiction is enormous. In addition to the human
costs, huge economic costs occur in our Nation. It is estimated that
direct medical expenditures attributed to smoking total now more than
$75 billion each and every year.
Despite all of this, the Food and Drug Administration has not been
able to take action to reduce tobacco's harm on society. By way of
example, right now the FDA, as we have seen on a poster displayed here,
can regulate a box of macaroni and cheese but not a pack of cigarettes.
If you want to know the ingredients in macaroni and cheese, it is on
the label. But for cigarettes, there is scant information on
ingredients, toxins, chemicals, et cetera. It makes no sense.
Today, we have worthless health warnings, no control over what
tobacco companies claim about the relative health effects of their
products, no authority to curtail tobacco marketing to kids, and no
ability to order the industry to remove especially hazardous
ingredients.
The amendment before us today has the support of the entire public
health community, including the American Cancer Society, the American
Heart Association, the American Lung Association, and the Campaign--an
effective campaign, by the way--for Tobacco-Free Kids.
Today, we have a historic opportunity to give the FDA the legal
authority it needs to prohibit tobacco advertising that targets
children, the authority to prevent sale of tobacco products to minors,
and the authority to make tobacco products less toxic than they need to
be, although I am very suspicious about that because there is much
misleading advertising talking about tobacco light cigarettes, et
cetera. There is no assurance they are less lethal than ordinary
cigarettes. We want to give them the authority to prevent the tobacco
industry from misleading the public about the dangers of smoking.
I join with other colleagues and hope that we can muster enough
support for this bill to give the U.S. Food and Drug Administration the
authority it needs to regulate tobacco, as it does other drugs. We owe
it to families across this country. We owe it to young people who think
it is going to be a kick, but it is a kick they will remember for the
rest of their lives once they start.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, I thank all the cosponsors of this
amendment for their good work. Senator Hollings has done an excellent
job. I congratulate him, as well as the other cosponsors. I thank my
colleague, Senator Lautenberg, for his very eloquent remarks. He and I
have worked on issues that affect public safety. He has been a leader
in highway safety. He and I have been on this floor together and have
worked on legislation that we hope has saved the lives of children. He
has been a good partner. I appreciate his comments again today. It is
good to be working with him again.
Mr. LAUTENBERG. If I may intervene, Mr. President, for one moment,
with Senator DeWine's approval, we worked on issues that focus on
protecting children's health in particular. We want the drunks off the
highways. We want to get tobacco out of the grasp of children. We want
them not to be seduced into smoking to look like they are bigshots,
like they have grown up to a point. I remember the days--and I am sure
the Senator from Ohio does--when athletes were endorsing tobacco
products and doctors were endorsing tobacco products. Thank goodness we
do not have that anymore.
I commend the Senator from Ohio. I have always enjoyed working with
him on issues. I pay my respects to his excellent work on this
amendment. I hope it is adopted.
Mr. DeWINE. Mr. President, I appreciate my colleague's good comments
but, more importantly, I appreciate his good work.
I know from talking to a few of my colleagues that there is some
reluctance to grant the FDA this authority. I want to make a few
comments directly to those colleagues.
I do not think there should be this reluctance. We do not worry about
having a product, such as macaroni and cheese, that has labeling
information on it. We have come to accept that. We have come to think
it is a pretty good idea to know what is in a product. If tomorrow we
went to the grocery store and all this information on the side panel,
nutrition facts, was all blank, some of us would think that was rather
strange. We have come to accept that. We think it is OK. In fact, we
expect it. It is the right thing to do. We want to know what is in the
product.
Every product we buy, from bottled water to macaroni and cheese, we
know what is in it, every product except tobacco. Every product we
consume we know what is in it; there is a label; it is regulated,
except tobacco.
How did we get here? We got here because there is an anomaly in the
law. Without going through all the lawyer talk and all the
constitutional and statutory history, basically the Supreme Court
looked at Congress and said: If you guys want to change that and give
FDA the authority to regulate tobacco, too, you have to do it. You are
the ones who have to do it. That is why we are here today. We are the
ones who have to do it. It makes sense for us to pass legislation that
says to the FDA: You go ahead and do it. That is what this is all
about.
This is not exactly a radical idea or a revolutionary idea. The only
reason it sounds strange is we have just never done it before. But it
is time to do it.
It is also time, when the tobacco companies make outlandish claims
about low tar and ultra light, for them to be held to the same
standards as the macaroni and cheese is or the milk. There are certain
standards, and when you say the food product is thus and so, it has to
be thus and so. There are certain standards. It ought to be the same
way with tobacco.
Again, all we are saying is they ought to be held to the same
standards as anything else we put into our bodies.
We all know that even tobacco, a legal product, if used as it is
intended to be used, is still dangerous.
So it still makes common sense to have some regulation and have the
FDA do it. So this is not a radical, crazy idea. This just makes good,
common sense. The reason it is in front of us is because the courts
have said, if the FDA is going to have this authority, it has to be
given to them and it has to be given to them by statute, and we are
simply giving it to them by statute. So in a sense, it is a simple bill
that a quirk in history, a quirk in the law previously, has brought us
to this point. So we are the ones who are doing it.
That is one major part of the bill. The other major part of the bill
is to say we are going to control how they market this dangerous
product, and there is no doubt it is a dangerous product. That debate
ended years ago. Legal, yes, but dangerous, yes. We have a right, as a
society, to control how this dangerous product is marketed to children,
and we are going to control that within the bounds of the first
amendment.
The court is going to confine us to the first amendment. We are not
going to violate the first amendment because the courts are not going
to allow us to do that. But we are going to confine it and say there
are limits. Kids cannot be targeted because it is a dangerous product.
There is no dispute it is a dangerous product. We know it is a
dangerous product. We cannot make it illegal for all the reasons we
know we cannot make it illegal because that just is not going to work.
Prohibition will not work. But it is dangerous.

[[Page S8163]]

We do not want kids to get addicted. We know that most people who
smoke today started smoking when they were minors. We know if one makes
it to 19 or 20 and they have not started smoking they are probably
never going to smoke in their life. So there is an inherent societal
interest in not having our kids smoke before they are 19 or 20. If they
can make it that far, they are probably going to be OK.
So we have an interest in not allowing these companies to target
young kids, and we are going to do everything we can within the
confines of the Constitution, and that is what this bill is trying to
do and will do.
This bill will save lives. It will save lives because we are going to
allow the FDA to do what it can in regard to regulation, and because we
are going to allow more regulation in regard to advertising a lot of
lives will be saved by this bill. It is the right thing to do. The time
for the bill is now.
I see my colleague from Georgia is on the floor, and I yield to him.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. I thank the Senator from Ohio for yielding me some
time to talk a about this bill today. I want to talk about three
things. First, with respect to the issue of smoking, all of us know and
now understand that smoking is hazardous to one's health. There is
simply no question about that. That is not even in the debate.
Fortunately, I am one who has never smoked in my life, but I come from
a part of the country, as does the Presiding Officer, where tobacco has
been a mainstay. So I want to talk about the effect of what we are
doing today is going to have on tobacco-growing regions of our country.
Tobacco has been a mainstay of the agricultural community since the
Indians first inhabited this country. Tobacco has been a product that
has been traded and bartered for literally hundreds of years, both in
America as well as outside of America. In my part of the country, which
is a heavy growing tobacco area, it has been the mainstay and the
staple product of small family farms for literally hundreds of years.
That is going to be coming to an end, in my opinion, with the passage
of this legislation.
The tobacco industry has taken any number of hits over the last two
decades, and some of it for the right reasons. We need to educate
people about the hazards of smoking tobacco. We need to educate people
that if they do smoke, it is likely going to kill them.
The fact is, there are a number of individuals in this country who
having been educated have still made a conscious decision to use
tobacco products. The last thing I think we need for the Federal
Government to do is to intrude further into the lives of Americans and
say they cannot do this.
Now, that is one thing we are doing with this legislation. I think it
goes that far. Maybe not saying one absolutely cannot do it but it is
pretty well going to limit the number of customers to future tobacco
growers and future tobacco manufacturers in this country, which means
that jobs in the tobacco industry are going to be moving out of this
country and we are going to see a complete overhaul and change in that
manufacturing sector, as well as in the growing sector.
I can remember very well in my hometown where we had three tobacco
markets, and we used to sell all tobacco at the auction market. We
would have buyers come in every summer and all of the farmers and their
families would go to the tobacco market on opening day. We would
literally have an auction bale by bale or pile by pile of tobacco that
would be bought by one of the tobacco companies and used in the
manufacturing of various tobacco products.
As soon as that auction was completed on the sale of the farmer's
tobacco, he would take his family downtown in my hometown, and this
happened literally across dozens of other communities in the South, and
he would buy the family clothes for school that year. The opening day
of the tobacco markets was a big deal because that is the product that
provided the income for the family farmer for literally hundreds of
years in the South.
Today, it still does. Even though over the years with the attacks
that have been made on the tobacco industry and we have seen the
tobacco quota cut in half, our farmers are generating half the income
today with about double the expenses that they were 20 years ago. This
is simply because the demand for tobacco has decreased due to Federal
regulations and because we are seeing imported tobacco replace domestic
tobacco. This is a result of the price that the farmer needs to receive
due to the cost of production that he faces each and every year.
What we are doing today to that farmer is we are going to increase
the price even more. We are going to make him less competitive and we
are, as a practical matter, going to drive the American farmer out of
the tobacco-growing business, which is going to be a change in a way of
life for many small towns across the South. Is it the right thing to
do?

Well, I am not sure everything in this bill, outside of the FDA, is
perfect, but I do agree with the way we are doing it and the reasons
why we are doing it. Now I am going to talk about the FDA for a minute.
What we are saying to the tobacco farmer is, look, we gave you a
quota that you earned over the years through your growth of tobacco. We
know you bought this quota in some instances and in some instances it
was passed down from father to son to grandson. In some instances you
bought it when you bought the farm. But in any event, a price was paid
for the ownership of the tobacco quota. Today, we have cut your asset
that you bought and paid for by 50 percent just in the last 5 years. We
have taken the ability away from you to generate an income sufficient
to meet the needs of the quality of life that your family is used to
living.
So what we are doing is compensating those farmers. We are going to
give some money to them for this quota that we have taken away. We are
now going to take it all away and, even though we did not compensate
them for that 50 percent they have lost in the past 5 years, we are
going to compensate them for the remaining quota that they have. I
think that is a fair and reasonable thing for us to do.
I have been adamant from the very first day that we engaged in this
issue regarding the buyout, and I have been working on this for 4 years
now, but we have been very adamant that the taxpayer ought not to fund
this buyout.
I don't think that is right. I don't think we should use money from
other valuable programs to pay for this buyout. I think it can be
funded in the right way, by those folks who use tobacco products.
Is that going to be injurious to the tobacco industry? You bet it is.
But that is the only way it should be funded in a reasonable and
rational society in which we live today when you are dealing with such
a controversial product.
What this bill does is it provides compensation to the tobacco
grower, compensation to the quota holder, and the funding of that
compensation to be paid for by those individuals who use tobacco
products. That is fair and reasonable, and I support that aspect of
this particular amendment wholeheartedly.
Last, I want to talk about FDA. I have been very strongly opposed to
the inclusion of FDA regulation in any tobacco buyout bill or as a
stand-alone without a buyout. However, I intend to support this today
because it is the only means by which we are going to get this buyout
bill done. I support it because I hope that in conference we are going
to be able to change some of the provisions that are included in the
FDA portion of this amendment. I want to mention some of those
specifically.
First of all, what we are granting to the FDA in this amendment is
this: It will grant FDA indirect authority to mandate changes in
farming practices. This bill places no limits whatsoever on FDA
authority to reduce or ban compounds found naturally in tobacco leaf.
Many new mandates FDA is likely to adopt will be achievable only
through dramatic changes in tobacco farming operations--for example,
changes in things like types of soils where tobacco may be grown,
changes in cultivation practices or even curing techniques. If we think
that by passing this bill we are not going to put FDA on the farm, we
are wrong. That is simply going to happen.
Next, the bill would give FDA extremely broad authority to regulate

[[Page S8164]]

advertising, sale, and promotion of tobacco products, thus giving the
bigger tobacco companies a tremendous advantage over smaller tobacco
companies. The effect of that is going to be this: Anyone who does
smoke--and I encourage everybody to quit smoking--but if you are going
to smoke and you are going to buy tobacco products, when you go into
the 7-Eleven to buy a pack of cigarettes, they are not going to be
visible. The only thing you are going to be able to do is either tell
the proprietor of that store, Let me see all of your tobacco products,
or you are going to walk in and announce what brand of cigarettes you
want to buy.
We all know that name-brand identification is key to marketing of any
product, particularly when it comes to something like tobacco. The
bigger companies who have been around for years and years and have made
brand names very popular and very identifiable are going to be the
successful entrepreneurs and the successful companies at the end of the
day. The smaller companies that have come into business in the last
several years do not have a chance. We are telling those companies: We
are sorry but nobody knows the name of your product, so, in effect,
nobody is going to walk up to the counter and say: I want a pack of
that cigarette brand that was started just a couple of years ago. That
is not going to happen. We are going to put the smaller companies
totally out of business, in my opinion, and we are going to make the
bigger companies bigger. They are going to still keep marketing
tobacco, they are still going to keep selling tobacco, and it will
continue to have the same harmful effect it has today.
Again, the FDA should focus on its primary business. It is widely
acknowledged that the FDA approval process for new drugs is not as fast
as it could or should be. If the FDA has additional regulations to
administer to make cigarette products safe, it will no doubt remove the
primary mandate of ensuring a safe food supply and safe effective
drugs.

In effect, what we are going to do with the passage of this bill is
to put the FDA on the fender of every tractor that is driving across a
tobacco field in the South. It is going to be a new day for a lot of us
who come from very rural areas where tobacco has been a mainstay of the
economy of our particular counties and communities. It is not going to
be a very pleasant day. But on that day, if it is going to happen, we
need to make sure those individuals who have made it their life's work
to grow a legal product and send it to a manufacturer to manufacture in
a legal way will get some compensation to offset the negative impact
this is going to have on their lives. We need to make sure as we do
this we do not get unreasonable with respect to the thousands and
thousands of jobs that are dependent upon this industry.
Tobacco products are going to be sold anyway. My guess is it is going
to be manufactured by offshore manufacturing facilities in Europe or
some other country and shipped into the United States. These jobs are
going to be lost here and moved to those facilities. If it is going to
happen, we need to make sure that the individuals at the very lowest
level, at the grower level, are compensated for the loss they are going
to have.
I compliment my friend from Ohio, who has been very open to discuss
this issue. I know he feels just as passionately about his amendment
and making sure that we strengthen FDA regulations. I respect that. We
just happen to disagree on this particular issue.
But I say, too, my friends over on the House side--Congressman
Richard Burr from North Carolina, Congressman Jack Kingston from my
State of Georgia, Congressman Bill Jenkins from Tennessee--that have
been real stalwarts in making sure they included the buyout provision
in the FSC/ETI bill, thank you for your hard work. We are here today to
make sure a buyout is included the Senate bill.
I am very hopeful in the conference committee, as it moves forward,
they will look at the result of this FDA regulation. What we as
conservatives need to think about is keeping the Government out of our
daily lives on a more regular basis rather than putting the Government
on the shoulder of every individual in the tobacco industry, more than
they are today. I believe that is wrong. I do not think that is the
route we ought to take. But I am going to support this amendment simply
because it appears that is the only way we can get a buyout that is
going to adequately compensate our tobacco farmers.
I thank the Senator from Ohio for yielding the time. I thank him for
his cooperation in moving this amendment forward.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, I thank my colleague from Georgia for his
statement. Obviously we have a disagreement about the impact of FDA on
farmers. He knows I do not agree with him in regard to that impact. The
language of this bill is pretty clear. I believe we have done a good
job keeping the FDA away from the farmers, but that is certainly
something we can discuss in the future.
Let me yield to my colleague from North Carolina who has just come to
the Senate floor, Senator Dole.
The PRESIDING OFFICER (Mr. Chambliss). The Senator from North
Carolina.
Mrs. DOLE. Mr. President, significant progress has been made toward
achievement of a tobacco quota buyout which our farm families and rural
communities in North Carolina and other tobacco-producing States so
desperately need. A few weeks ago, thanks to the commitment and hard
work, in particular, of Richard Burr and Mike McIntyre from the North
Carolina delegation as well as Chairman Thomas and House leadership, a
tobacco buyout passed the floor of the U.S. House of Representatives.
Today, we have the historic opportunity to get a tobacco buyout across
the floor of the U.S. Senate. I thank Senator McConnell for his
legislation and his leadership in bringing us to this point.
Why should we go along with the tobacco buyout on the FSC/ETI bill?
Why is a buyout necessary? Because the status quo is simply not an
option. If nothing happens this year, according to noted agricultural
economist Blake Brown, tobacco families and farmers face a 33-percent
cut in quotas for the 2005 crop year.
Let's take a look at how we got where we are today. Look at this
chart. By 1996, tobacco farmers had experienced 7 straight years of a
stable and significant supply of quota. In 1997, quota increased 12
percent, leading many farmers to expand their operations. Barns were
bought to cure more tobacco, equipment was bought to replace that which
was worn out, and land and quota was bought to make their operations
more efficient. Significant amounts of money were borrowed to make
these investments.
Since 1997, quota has dropped almost 60 percent. Farmers still have
outstanding loans at the bank to pay for quota they no longer have. To
put this in layman's language, this type of cut in quota is equivalent
to cutting your paycheck more than half while you are still paying the
bank for an asset you no longer own.
The current devastation our farm families and their rural communities
face is certainly not of their making. The current tobacco program was
never designed to accommodate the significant changes that have
engulfed this industry. It is an outdated New Deal program that is
discouraging purchases of American tobacco by domestic and foreign
buyers because it has made the United States uncompetitive on the world
market. Foreign buyers who once looked to the U.S. market are now
purchasing tobacco from other countries and bypassing the U.S. market
altogether for their supply.

The numbers do not lie: The U.S. now accounts for only 7 percent of
all flue-cured tobacco production in the world. Let me be clear: All we
are doing under current policy is allowing countries such as Brazil and
China to reap the economic benefits of worldwide tobacco production. We
are not reducing overall tobacco production--we are simply allowing it
to be siphoned off by other countries.
Let me bring a little more perspective to the buyout of quota. People
in North Carolina and other tobacco-growing States invested in tobacco
quota since the 1930's. The Government created this asset--allowing it
to be bought and sold. As a result, the value of quota makes up a
substantial portion of many farmers' balance sheets.

[[Page S8165]]

The value of quota is recognized by county governments; it is taxed
just like land and other assets. In fact, tobacco quota is even subject
to the inheritance tax.
It is estimated that more than 60 percent of the tobacco farmers
today will exit the business entirely if a tobacco buyout is achieved.
Most are at retirement age, just hanging on a little while longer in
hopes of being able to pay off their debts. They have hung on and
continued to produce in hopes that things would get better, knowing
that if they got out now they would have to sell their farm and
liquidate other assets to settle up with their lenders. Even with a
buyout, many will still be short.
Every week my office continues to receive numerous calls from tobacco
farm families in desperation. There is a deep feeling of helplessness.
And all they can do is get on their knees and pray that those of us who
have been given the privilege of serving in Congress will act--and act
soon.
A tobacco quota buyout is sorely needed. It will allow those who want
to pay off their debts, and who want to retire, the opportunity to do
so with dignity. The opportunity to know that all they have worked for
has not been in vain. It will allow the widow whose sole source of
retirement income is from quota rent and social security the
opportunity to get a fair return in exchange for the taking of her
quota.
If nothing happens this year, these farmers will be forced to give up
all that they have. After 6 years of loaning on collateral, there is
nothing left for the banks to do except foreclose, especially with
another 33 percent cut in quota for the 2005 crop year on the horizon.
There will be no holding out for just a while longer. This may sound
like rhetoric to some, but it is the precise truth for countless
thousands of farm families. I have been there to see it and I could not
be more dead serious about this. Status quo is simply not an option.
It is absolutely critical that this legislation is achieved this
year, and I am grateful for the progress that has been made to get this
bill to conference. I look forward to working with my colleagues to
ensure that this much needed legislation becomes reality.
It is either now--or never. These rural citizens--the very ones who
have helped make this country great--are barely hanging on for their
very survival. And it is not just them. It is the retailers, equipment
dealers, chemical and fertilizer dealers and a whole array of small
local businesses. These are the very small businesses that create the
majority of new jobs in tobacco-producing States--and jobs that are
much needed. With enactment of a tobacco buyout, rural communities will
be able to grow back the jobs that have since left our borders and
restore hope to countless families who have labored all of their lives
under the sun to feed and clothe America and the world.
My State has thrived on traditional industries such as textiles,
furniture and tobacco. In recent years, thousands upon thousands of
jobs have been lost--leaving rural economies devastated and creating
pockets of poverty in many of North Carolina's counties.
And now, as tobacco farmers and rural communities reach for a life-
line, we have the opportunity to help them. Rather than conceding
tobacco production to countries such as China, rather than allowing
foreclosures to thousands of farmers, rather than allowing the negative
economic ripple effect to be felt throughout rural southeastern
America, let us do the right thing for our farmers and rural
communities.
It is way past the time for us to take action, and getting this bill
to conference is a very important and critical step.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, I thank my colleague from North Carolina
for her eloquent comments.
At this time, I yield time to my friend and colleague from the State
of Virginia.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. ALLEN. Thank you, Mr. President. I thank my colleague, Senator
DeWine, for yielding.
Let me commend the eloquent remarks of the Senator from North
Carolina, Mrs. Dole. Her remarks are the same sentiments that I will be
expressing, maybe not with the same eloquence but with the exact same
concern we both share for the citizens of North Carolina and Virginia.
I also thank Senator Chambliss for looking out for the people of his
State. But most importantly, when we listen to the remarks of the
Senators from Virginia, from North Carolina, from Georgia, South
Carolina, Kentucky, and Tennessee, it is common sense why this is such
an important issue for the people of our States, for our economies, and
the opportunities for many people.
I commend Senator DeWine for his efforts in this regard. But mostly I
want to commend Senator McConnell of Kentucky for his leadership. He
has worked very hard, along with the others of us in the tobacco-
growing States in this effort to achieve a tobacco quota buyout.
In the other body, as was stated by Senator Dole, Congressman Burr
and Congressman McIntyre worked very hard, as well as Congressman
Virgil Goode from Southside Virginia. I know many of my colleagues have
said on many occasions that it is all important to be advocating
policies and ideas that promote freedom, that promote job
opportunities, and improve the competitiveness of America. That is why
I think we must equitably find a way to end this tobacco quota system.
As I said, I agree with the comments of Senator Dole and Senator
Chambliss who spoke before me. But some people question, ``Why is it so
important to end this outdated, old, punitive quota system?'' The
reason it is important is because it is antiquated, it is a restrictive
quota system which harms the ability of tobacco-growing families to
earn a living by artificially increasing their costs of production
because they have to pay the quota holder.
If you are producing a product and you have added costs per pound,
those dollars per pound for the right to grow has to go into the price
for which you sell that product. Otherwise, you keep running a loss and
you go bankrupt. Senator Dole was talking about the similar experiences
farmers are having in her State. I know these tobacco-growing families
are hard-working families in Southside and Southwest Virginia who have
worked long and hard hours on these farms. Their families have owned
those farms and those lands for many years. Growing is not easy. You
have to prepare the soil, you have to get seedlings going, you have to
plant them at the right time, and you have to tend the crop. You have
to worry about pests and mold. Then there is the harvesting which has
to be done, whether it is flue-cured or whether it is a burley tobacco
which has different harvesting requirements, and then the curing of
that crop after you have harvested. It is a lot of hard work.
In Virginia, there is estimated to be about 8,400 tobacco farmers and
more than 120,000 tobacco-related jobs throughout the Commonwealth of
Virginia. Virginia is the fifth largest tobacco-producing State. It is
the second largest manufacturer of tobacco products. Virginia is the
largest exporter of tobacco products. Clearly, tobacco plays an
important role in Virginia's economy, agricultural or otherwise.
These tobacco-growing families and farmers and communities in my own
State of Virginia, as well as many other tobacco-growing States, need
this quota buyout to remain competitive in the world marketplace. They
have to be competitive because our States are not the only places in
the world that grow tobacco. It is grown all over the world, whether it
is in South America, Africa, or Asia. Without getting rid of this quota
system, we stand to lose thousands of jobs at a time when a lot of our
manufacturing base is being lost to other countries.

There are provisions--and I know the Senator from Georgia, Mr.
Chambliss mentioned this--in this amendment which I do not favor,
specifically, the potentially burdensome oversight by the FDA on
merchants who sell tobacco products. However, I believe this buyout is
needed to allow an important element of our American economy to
survive. This buyout will allow farmers who wish to continue to grow
tobacco to do so in a competitive environment or at least allow them to
better compete. If they do not care to grow it any longer, they will be
able to use this buyout in a way to find a transition to

[[Page S8166]]

some other farming or another line of work, rather than allowing this
just to continue, which will be a long suffering collapse and disaster
economically for those families.
We talk about many of the farmers. One of the farmer's name is Kevin
Mottley, a fourth-generation young farmer who says he wants to carry on
with his family tradition. That is something to be proud of. We are
happy to hear that. Of course, he is talking about a tough situation
with international competition, but he wrote that, ``With the recent
cuts in tobacco quotas and prices on other farm commodities down, it's
harder to keep our farm operating.''
That is the economic impact on a real farmer, a real person, in
Virginia. He understands this buyout is not only important for
individual families; it is also important for the communities that
depend on the strength of the tobacco-growing segment of our economy.
The current quota system makes Virginia-grown tobacco less competitive
versus foreign-grown tobacco. While U.S.-grown tobacco is generally a
better quality, it does cost much more due to this onerous quota
system. Thus, the cigarette manufacturers are using or have an
incentive to use more foreign-grown tobacco.
As less tobacco is grown, it is less profitable, obviously, to
growing families in this country and also in their communities and
counties in which they are farming. If we can achieve this buyout, it
will make U.S. tobacco more competitive, thus positively impacting the
economies of rural communities and towns.
Some will grouse about the cost of this buyout. I believe it is fair
compensation to end this government program. Well, look at how much the
Federal Government taxes tobacco. There is a 39-cent tax per pack of
cigarettes. The Federal Government garners about $8 billion a year on
tobacco taxes. Throw in all the State and local taxes, heck, it is
around $30 billion. Beginning July 1st, 2005, Virginia cigarette taxes
will increase to 30 cents a pack. Those that will be hurt by this
increase are all the businesses along the Tennessee and North Carolina
borders. Raising those taxes means they will lose sales at those
convenience stores and country stores.
The Federal Government gets plenty of money, $8 billion a year, from
taxing tobacco. We need to realize when farms are hurt, it also hurts
our economy. When the tobacco farming sector suffers, there are other
non-tobacco sectors that are affected, as well. The economic losses
associated with the recent changes in the tobacco sector have resulted
in the loss of more than 57,000 jobs in the six major tobacco-growing
States. While the primary sector affected is the tobacco-growing
sector, losing more than 39,500 jobs, these tobacco sector job losses
created an additional loss of nearly 18,000 jobs in the non-tobacco
sectors.
It demonstrates that the tobacco production prices impact such
diverse businesses as local farm supply stores, banks, health care
providers, manufacturers, retail businesses, and many others in the
non-farm sector in these communities.

One needs to understand there is no crop that produces the yield per
acre that tobacco does. When the tobacco quota is reduced, that affects
all of the money, all of the revenues available within these rural
communities.
I have previously stated I am not in favor of FDA regulation. The
reality, however, is that it has been joined to this measure. It is the
way that the salutary, vitally necessary quota buyout will be addressed
today in the Senate.
I am voting for this because of the quota buyout. I hope the
conference report--I know Senator DeWine may not have the same hopes
but I will express my views--I hope the conference report will knock
out or diminish the harmful impact of FDA on convenience stores and
advertising consistent with First Amendment rights.
I have heard Senator DeWine state this will not have an impact on
growers. I hope it will not have an impact on growers. There may be
some certain aspects we ought to look at. Maybe it ought to be done
through USDA in making sure foreign-grown tobacco meets the same
standard we want for tobacco grown in this country, for pesticides or
chemicals that are not naturally occurring in the tobacco plant.
I do believe, however, that we do not need FDA regulation to prohibit
and protect children from purchasing cigarettes. That is usually the
argument, that we have to protect the children. That is fine, but I
think it can be done without onerous FDA regulations. I fear, if FDA
has regulatory authority over tobacco manufacturers and producers, we
will end up with decisions being made further away from the people,
given to officious and meddling regulators. Rarely do I see the federal
government or any agency resisting a temptation to expand its power.
Once the FDA has control over tobacco retailers and manufacturers, they
will be subject to ever changing restrictions dictated by future
political considerations.
I do commend the efforts of Senator DeWine and Senator McConnell and
others who worked on this; I will be voting for this measure to keep
this bill moving and gaining momentum. It is very important. We are
taking a major step forward with this measure in making sure our
tobacco-growing families can be competitive with foreign-grown tobacco.
It is also important that we understand there are a number of aspects
in the underlying bill, the JOBS bill, which are important to our
economy. There are aspects of it I have worked with my colleagues on to
put in, including the Homestead Preservation Act which helps displaced
workers who have lost jobs due to international competition. There are
folks, and many are in the same areas as the tobacco farmers, in rural
communities who have lost textile jobs. The Homestead Preservation
provision will help them with mortgage assistance for 1 year to help
them keep their homes and protect their credit ratings as they work
toward strengthening and updating their skills and getting back on
their feet with a new job. That is an important provision.
There are also provisions that help make the United States more
attractive for foreign companies to invest and create jobs in this
country.
The main point is this is an amendment that advances a long talked
about, long sought after, absolutely essential provision, the tobacco
quota buyout, which is so important to people not only in Virginia but
also tobacco-growing States across this country.
I am glad, while there may be some differences clearly on the FDA
provisions, that the Senate has come together and has put forth this,
on balance, very positive, competitive idea in an amendment. I hope my
colleagues will vote for it, it will be passed, and we can move to the
conference committee, and, ultimately, next fall pass this JOBS bill
which is so important for our country.
I thank my colleague Senator DeWine and yield the floor.
The PRESIDING OFFICER (Mr. Ensign). The Senator from Ohio.
Mr. DeWINE. Mr. President, I thank my colleague from Virginia for his
good statement. I thank him for his support of the amendment. I just
say that our hope for this bill, after passage, obviously, is
different. I hope this marriage continues. He hopes for a divorce. I
hope the marriage will be a long-lasting one. As I have said earlier, I
think it will. It is a logical marriage. I think the FDA regulation
will not be onerous. It is logical.
I think tobacco farmers will not in any way be burdened by this
legislation. But the children of tobacco farmers, as well as the
children of all Americans, will be benefited by FDA regulation, just as
they are benefited by FDA regulation of milk and macaroni and cheese
and of every other product we consume. It just makes sense to me, and
it makes absolutely no sense we would not be regulating products such
as tobacco. The time is finally here that we will recognize this, and
the American people will recognize it today, that we should, in fact,
be regulating a tobacco product.
At this time, let me yield to my colleague Senator Harkin. Before I
do that, let me inquire of the Chair, how much time is remaining?
The PRESIDING OFFICER. Seventeen and a half minutes.
Mr. DeWINE. Seventeen and a half minutes.
Mr. SESSIONS. Seventeen and a half minutes total?

[[Page S8167]]

The PRESIDING OFFICER. Seventeen and a half minutes total.
Mr. DeWINE. Seventeen and a half minutes total is remaining.
How much time would my colleague from Iowa need? I ask my colleague
from Alabama, do you seek time as well?
Mr. SESSIONS. Seven minutes.
Mr. DeWINE. Senator Kennedy wants some time at the end, I know. He
told me he wants 5 minutes at the end. I probably will want a minute or
so.
I ask the Senator from Iowa how much time he would like.
Mr. HARKIN. I would ask for 15 minutes, if I could have it.
Mr. DeWINE. We only have 17\1/2\ minutes.
The PRESIDING OFFICER. Seventeen minutes.
Mr. DeWINE. Seventeen and a half, and Senator Lott wants some time.
Mr. HARKIN. We only have 17\1/2\ minutes left on the whole debate?
Mr. DeWINE. Seventeen and a half minutes total.
Senator Lott is going to speak in opposition.
I ask the Senator from Alabama, are you in opposition?
Mr. SESSIONS. In opposition.
Mr. DeWINE. I say to the Senator, Senator Lott and my colleague from
Alabama both have preference because it is all opposition time.
Mr. HARKIN. Mr. President, parliamentary inquiry.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. I ask the floor leader, the Senator from Ohio, did I hear
correctly, there is only 17\1/2\ minutes left on the side that is for
the amendment?
Mr. DeWINE. No. There is no time.
The PRESIDING OFFICER. Under the total time, the total time on the
amendment.
Mr. HARKIN. Is it 17\1/2\ minutes?
The PRESIDING OFFICER. Sixteen minutes now.
Mr. DeWINE. We need to move.
I wonder if I give my colleague, to start with, 4 minutes, and then
go from there.
Mr. HARKIN. I will try. Thank you.
Mr. DeWINE. And then maybe an additional minute, if you need it, and
we can go from there.
Mr. SESSIONS. Mr. President, I know Senator Lott wants to speak,
also. I will try to keep my comments to 6 minutes or 5 minutes. So I
don't want to object to the 4 minutes, but I think the Senator would
need to come in on that time or there won't be enough for this side to
be heard effectively. So I will not object.
Mr. DeWINE. Let me ask the Chair, is the time now controlled by the
opposition or is it total time?
The PRESIDING OFFICER. The remaining time can be controlled by the
opposition.
Mr. DeWINE. All right.
Mr. SESSIONS. Mr. President, I yield the Senator from Iowa 4 minutes.
The PRESIDING OFFICER. The Senator from Iowa is recognized for 4
minutes.
Mr. HARKIN. Mr. President, I rise in support of the amendment. We
have an opportunity to address one of the most significant health
threats of our lifetime; and that is tobacco use.
Quite frankly, we have been trying for some time to get FDA
jurisdiction so they could better control advertising. I have a couple
charts to show why we need to do that. The tobacco companies continue
to say they do not advertise to minors, but here is Kool cigarettes.
They have advertisements for hip-hop and rappers and all that. They are
not going after me. They are going after kids. This is what Big Tobacco
is doing. That is why we need to regulate tobacco.
Here is another one: Liquid Zoo flavored cigarettes. This happens to
be strawberry. They are not going after adults. They are going after
kids to get them hooked on tobacco.
Then we get this fraudulent kind of advertising. This is Eclipse
cigarettes: The best choice for smokers who worry about their health is
to quit. Here's the next best choice. But there is absolutely nothing
to back up their claim that it is some kind of a healthier cigarette,
of which I say there is no such thing. That is why we do need to get
FDA authority.
Secondly, as a member of the Agriculture Committee, and as ranking
member, I am sorry this did not come to the Agriculture Committee. It
is the committee of jurisdiction.
But I will say this, that we have a lot of farmers who hold quotas on
tobacco. They have held them for many, many, many years. They are now
seeing that the amount of tobacco they can produce under the quotas is
being reduced, so their future and their ability to earn a living from
tobacco is slipping away. This buyout will help them to build a better
future. For many, it will not be in tobacco growing, and they need help
to move to something else. But at least this tobacco buyout will give
them some equity, some hope. Many of these farmers are growing tobacco
because their parents did. Many of them have small plots of tobacco.
They are using that for their family income.
Now, as we try to phase out tobacco use in this country, to get
people to smoke less and less because of the health costs and health
risks, we cannot forget about a lot of these farmers who, let's face
it, their family incomes are based on this, so they need help. That is
why I have been for a tobacco buyout in the past, to help these farm
families. As they transition out of growing tobacco--maybe into other
crops--they need help. I hope those of us on the Agriculture Committee
will help them to do so. I think this amendment is a good amendment. It
will tend to move us in the right direction on both fronts.
I say, in closing, in my estimation, the FSC bill needs this. The
House approached it the wrong way. They put it on the backs of
taxpayers, when it ought to be paid for by the manufacturers, which I
assume would pass the cost on to users of tobacco. That is the way it
ought to be done. That is the way we had agreed upon doing it prior to
the House adding that amendment.
So I say the conference committee must adopt the approach that
insists on combining a strong FDA regulation with an industry supported
buy-out for tobacco farmers unlike the approach the House took by
putting the buy-out on the backs of the taxpayers and completely
disregarding FDA regulation.
So again, this amendment moves us in the right direction, both to
help a lot of family farmers but also to help our kids, to help future
generations so they will not be bombarded with this kind of phony
advertising we are seeing from the tobacco companies.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Alabama.
Mr. SESSIONS. Mr. President, I guess it is only in the Congress that
we can have one bad bill that cannot be passed on its own, and we can
add to that another bad bill that cannot be passed on its own, and, lo
and behold, we can have two bad bills that you would think would not
have a dog's chance of passage, and here we are on the verge, I am
sure, of passing this amendment.
I do not know how the quotas need to be paid out, and how much people
ought to get, but we really need to spend some time on it. It was
basically suggested to me recently that we ought to be thankful this
bill started out at $18 billion in buyout costs and that now it is only
$13 billion. We are supposed to say thank you for saving us. But I
wonder how we started out at that figure to begin with.
Mr. President, I ask to be notified when I have used 5 minutes.
The PRESIDING OFFICER. The Chair will do so.
Mr. SESSIONS. Mr. President, the chairman of the Committee on Health,
Education, Labor, and Pensions, Senator Judd Gregg, has worked very
hard on the tobacco regulation issue. He has had hearings. He has
studied it. His staff has worked on it. Members of the committee have
been engaged in it. His ideas have been completely bypassed in this
amendment that is going forward today.
Senator Mike Enzi is a champion of small business, who has spent a
lot of time dealing with small convenience stores and working with them
on their problems. The breadth of this language they feel very strongly
about. He had amendments and some ideas to fix that. All of that has
been bypassed.
The trade bill is a critically important bill. We want to see that
pass. It is just too typical of how we have to do business or feel we
have to do business that the bill gets these two pieces of
legislation--neither one of which has been thoroughly considered and
effectively analyzed--attached to it. I don't believe it is about
public policy, and it is something we ought not support.

[[Page S8168]]

They say they are going to tax the manufacturers. I can understand
some of my colleagues on the other side of the aisle believing that is
not a tax on consumers, but everybody knows a tax on the manufacturer
drives up the cost of the product and is, in fact, a tax on the people
who consume the product. We might as well put it on the cigarette
package so the citizens will know how much the Federal Government has
made them pay extra for the cost of the product they wish to consume.
I do not favor tobacco. I believe it is a deadly product. We ought to
eliminate it in any way we possibly can in a reasonable way. But I also
believe in freedom, and I know that there are people who believe that
they have a right to smoke and have been given that right. To just
exorbitantly continue to exercise more and more of our ability to put
taxes on it is not a good idea.
The regulations in the FDA bill are very troubling. We know there was
a lawsuit over this issue sometime ago, and the courts ruled that the
FDA did not have the power to regulate tobacco. As a result of that, we
now come back with this legislation.
I know there are some good people involved in this, wanting to see
this bill pass for various reasons. One group is absolutely committed
to increased regulation of tobacco, and they don't care if we spend $50
billion on the buyout. Another group wants a big buyout, and they don't
care what kind of regulations we put on convenience stores or on the
sale of this product.
The net result is an unhealthy deal for public policy in America. I
wish we had more time to get into it. I am told that the cost of the
buyout per acre is $20,000. I know Senator Lott has some fine farmland
in Mississippi. I don't know how much he could buy at $20,000. It would
be more than one acre, I am sure. He probably could buy land in
Jackson, MS. I am just kidding.
I think we are moving in the wrong direction. I want to be on record
as objecting to this process. I am sorry that it was sprung on us this
way. It is adding too much. We should not allow this to happen. I hope
we can make this thing better as time goes by.
I yield the floor and reserve the remainder of the time for this
side.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. LOTT. Mr. President, are we still operating under the 3-hour time
agreement with regard to the tax bill and the tobacco issue?
The PRESIDING OFFICER. That is correct. The opposition has
approximately 6 minutes remaining. The proponents have no time.
Mr. LOTT. Mr. President, I yield myself such time as I may consume. I
am not sure whether I could be considered pro or in opposition to in
this particular case, but I do want to be heard on the broader issue
and also on the tobacco provisions.
I begin by congratulating and expressing my appreciation to leaders
on both sides of the aisle for finally coming to an agreement on a
process that will get us into conference on this important legislation.
It is unfortunate that it has been delayed for weeks. We should have
been in conference a month ago or more. Some of the demands about how
we would go to conference or what would happen in that conference have
been very inappropriate. One can't preordain what will come out of a
conference. They can't say that any one person will determine whether a
conference is reported, whether it is a leader or anybody else. But
this issue is so important that we need to go into conference. It is
about some important tax provisions that will help manufacturing,
service, and our high-technology businesses and workers.
It is a way to deal with a problem we have caused by a ruling by the
World Trade Organization saying that our tax provisions, our alleged
subsidies, were not in compliance with WTO, and we are being penalized
in an increasing amount each month on a lot of American products
because we have not dealt with this issue. We should have dealt with it
a year or two ago, but at least now we will have an opportunity.
Without rewriting the history, I think we need to get this bill into
conference. We need to deal with this problem caused by the World Trade
Organization's ruling, and we need to deal with the funds that are
available because of that in a way that will help job growth and the
economy.
This is all well-intentioned. I have been pushing to go to
conference. I must say, I am very worried about what is going to come
out of conference. This bill and the one from the House have acquired a
lot of barnacles. If you allow enough barnacles to be attached to the
hull of a ship, it will sink. This one is in real jeopardy of sinking.
First of all, as has become our pattern in the Congress, we are
greedy. A bill that should be revenue neutral or should be somewhere
around $50 billion has become--I don't know how much--$150 billion. How
far is it going to go? The distinguished chairman of the Budget
Committee tells me it is $170 billion. We do have a little deficit.
Anybody notice that?
Here we have taken a good opportunity to do something good that would
be responsible in dealing with trade practices and protecting our own
producers and creating jobs, and we are going to distort it way out of
proportion. It has become a pretzel. I went along with adding the
energy tax provisions to the bill. I didn't think that was the way to
do it; I said so at the time. But it was at least the tax provisions,
and it gave us some way to maybe deal with the energy needs of the
country. But that was the first of the barnacles that was added.
And then in the House, I saw on the media this week where all these
provisions have been added that will benefit General Electric, that
would give them additional tax breaks and will contribute probably to
more jobs going overseas. How did that happen? Did somebody miss that?
Did it get in there without anybody being aware of it?
Then the House added about $10 billion for a tobacco allotment
buyout. I assumed that was just an aberration in the House and that
Democrats and Republicans would say they are not going to do that and
we would get back to the basics of this bill. Now the Senate is going
to join the stampede. We are going to regulate tobacco with the FDA,
and we are going to have a buyout even bigger. I guess this alternative
would be paid for by the industry. What in the world is tobacco policy,
whether it is the amount of the allotment or the FDA, doing in this
bill?

I am very worried that this bill is going to--and we are adding to
the confusion--sink under its own weight in conference, and our
companies and producers in America will be hit with an ever-increasing
import fee every month.
Here is what we ought to do. We need to get a grip, cut out all of
this unrelated stuff in this bill. Some of it I would have to
sacrifice, too. I want an energy bill. This may be the only vehicle
leaving town. I would like to put the entire energy bill, with some
modifications that may be necessary, in this bill. But this bill, on
its own, needs to be done. It needs to be done clean. It needs to be
cut by probably two-thirds. And we need to get all the undergrowth that
has been added to it off of it.
If we could do that and still find a way to get an energy bill, a
highway bill, and a jobs growth bill done without all of the adds that
are costing billions of dollars, we could go out of this session with
our heads held high. But we are setting up a box that we may not be
able to get out of.
I oppose this proposal on tobacco. I am very much concerned about how
we are going to get through conference and get this bill down into the
$50 billion range where it should be instead of $170 billion. We have
all contributed to the problem. I plead guilty. We all have. But now is
the time where generally, when you go to conference, you get over your
temporary political fantasies and you do the right thing. You produce a
bill that can pass and will help the economy.
Will we do it this time? I am sure that the distinguished chairman of
the Finance Committee, who enters the Chamber smiling, can work
miracles in this conference. I am expecting it and looking forward to
supporting him in that effort.
With that, I yield the floor.
The PRESIDING OFFICER. All time has expired.
The Senator from Oklahoma is recognized.
Mr. NICKLES. Mr. President, I ask unanimous consent to speak on the
FSC/ETI bill for 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S8169]]

Mr. NICKLES. Mr. President, most of the speakers have been
proponents. I compliment Senator DeWine and Senator McConnell for
getting included this deal. I want to make two or three comments. One
is on the process. The FDA bill we are now going to vote on--I venture
to say nobody knows much about it because, and correct me if I am
wrong, it has not been reported out of any committee. The very
extensive bill, very important bill, has 155 pages of regulations and
not 1 paragraph that says the FDA has regulatory authority over
tobacco. It is a lot of regulatory statute proposed to be the law of
the land.
There is a tobacco buyout provision that costs $12 billion. I have
yet to see the language. Neither of these bills was reported out of
committee, and neither should have had a time agreement. I wasn't
consulted on a time agreement on these particular amendments. All of a
sudden, we find out at 9:30 there is a time agreement and we are
talking about spending $12 billion--and, oh, yes, you cannot amend it.
I am kind of offended by that.
Senator Grassley used to say we should have some kind of limitation
on payments. We find out, according to some analysis, some farmers will
make millions of dollars on the tobacco buyout. I would say, wait a
minute, if we are going to buy out a quota--a quota is a Government
benefit basically which we have given and which has benefited a few. We
find out that 85 percent of the quotas go to nonfarmers. I would like
to have the benefits go to the farmers. We don't have a chance to offer
that amendment. I would like to say the benefit should be going to
tobacco farmers. We don't have a chance to offer that. We have an FDA
bill before us. Senator Gregg has a proposed amendment; I would like to
offer that or consider it. We don't have a chance to do that. We don't
have a chance to offer one amendment. Yet we are saying let's add this
to the FSC/ETI bill.
I agree with Senator Lott, who says we should pass the FSC/ETI bill,
and we are held up for weeks after we already passed it on the floor of
the Senate.
The House, in my opinion, made a mistake. The House made a mistake
when they passed FSC/ETI. They put in a $9.6 billion tobacco buyout as
part of their package. Now we are getting ready to say that two wrongs
make a right. Since they do it, we will do it, too, except where they
spent $9.6 billion, we will spend $12 billion. At least, to their
credit, they got out of the tobacco program when they spend $9.6
billion. They are going to pay the tobacco farmers and get out of the
Federal price support program for tobacco. But we don't do that on this
proposal. We are going to spend $12 billion on supposedly buying out
quota. Guess what. At the end of the day, you still have a tobacco
program, a price support program. That is ludicrous. What a waste of
money. We are going to spend $12 billion and not end the program? I
cannot imagine doing that. I cannot imagine that we would pay people
for a quota, most of whom are not farmers, and then we are going to
continue a price support program at the end of the day. That is in this
bill. It is all tied together. You don't have a chance to break it
apart, don't have a chance to amend it. This is very offensive to the
legislative process. It is very offensive to the taxpayers.

The regulatory authority I have heard many people bragging on is very
broad. For example, I don't know if people are aware of it, but maybe
we want to give the Secretary of HHS a blank check to regulate and/or
outlaw tobacco. In reading on page 45, it says:

The Secretary may, by regulation, require restrictions on
the sale and distribution of a tobacco product, including
restrictions on the access to and the advertising of and
promotion of the tobacco product, if the Secretary determines
such regulation will be appropriate for the protection of
public health.

The Secretary can do anything he darn well pleases, including banning
tobacco, I guess. I am no fan of tobacco. Frankly, I have had family
members who got cancer as a result of it. It almost took my mother's
life--lung cancer, emphysema, all probably directly related to tobacco.
I had a brother with serious cancer. I am no fan of tobacco. I don't
use it. I don't want my kids to use it. I urge people not to use it. I
question having a new Federal program where we are going to have $12
billion to buy people out of their quotas, including most of the people
who don't even grow tobacco, and then we are going to say, yes, at the
end of the day, we are going to continue the tobacco program, and then
we are going to put it on a FSC/ETI bill where it doesn't belong.
We need to pass the tax bill and resolve conflicts with the WTO so we
can eliminate surcharges and tariffs on products coming into the U.S.
We need to do our work.
This tobacco provision, which has not had a hearing in the
Agriculture Committee or in the HELP Committee, and hasn't had a
hearing on either FDA or a markup of the appropriate legislation before
the appropriate committees--all of a sudden we are getting ready to
pass legislation that is going to make, according to one estimate, over
500 people millionaires--millionaires--and we don't even have a chance
to amend it. I wonder how many of my colleagues are aware of that. I
wonder how many have a clue what is in this proposal. I venture to say
that very few do. Maybe the sponsors do. Maybe there was some deal
cooked up last night. I don't know. I am looking at the size of that
amendment and saying, Mr. President, that is pretty thick. I wonder how
many billions of dollars are going to be spent as a result of this
amendment without people really knowing what they are voting on.
I will vote no on the amendment. I urge my colleagues to vote no on
this amendment. If we pass this, there is going to be a tobacco
provision in the House bill and the Senate bill, and that will make it
difficult to delete in conference. As a conferee, I plan on opposing
tobacco. I was going to oppose energetically having the House pass that
as part of the FSC/ETI bill. It doesn't belong there. If we put a
similar provision in the Senate bill, it more than likely will be
there. I will tell you it may be too much of a load for that bill to
pass conference. I can see all kinds of ways that this could bog down
the conference totally, and we will end up having no bill. Who wins out
of that? Certainly not the tobacco growers. Certainly not tobacco.
Some people allege that the regulations benefit one tobacco company
at the expense of the others. I don't know. I just know this is a
crummy way to legislate. This is not the way we should be doing
business in the U.S. Senate. We should not be gumming up an already
overloaded bill by including this provision.
I urge my colleagues to vote no on this amendment when we vote later
today.
I yield the floor.
Mr. COCHRAN. Mr. President, I am pleased that we are finally able to
proceed with this legislation and remove serious barriers to American
agricultural exports.
Since the World Trade Organization ruled against the United States
over our Foreign Sales Corporation and Extraterritorial Income tax
rules, we have had ample time to address this issue. In fact, the
Senate Finance Committee reported legislation that would bring the
United States into compliance with our trade obligations on October 1,
2003.
European Union tariffs on our farm exports have steadily increased,
making them increasingly less competitive in international markets. The
EU retaliation list includes about 400 agricultural, food and forest
product tariff lines of imports from the United States. Proceeding with
this legislation will help us regain market share and export
opportunities that will have added benefit for truckers, rail lines,
shippers and related businesses. This will help the export of U.S.
agricultural products to hit a projected record of more than $60
billion this year.
In addition, I am pleased that an agreement could be reached to allow
for the consideration of a tobacco buyout amendment to this
legislation. I commend our members of the Senate Agriculture Committee
who have worked diligently to reach this point. Particularly, Senators
McConnell, Chambliss, Dole and Miller and their staffs have brought us
to this point through careful negotiation.
Over the past decade, tobacco producers have seen their tobacco quota
cut in half and resulting in an economic crisis among tobacco-dependent
communities. This buyout provision will provide the estimated 57,000
tobacco farms in the United States the

[[Page S8170]]

necessary resources to continue their livelihood or transition into
more diversified operations. The amendment is also a move in the right
direction in eliminating the archaic tobacco quota system. It is my
hope that this important provision will enable tobacco producers the
ability to better compete in a free market system.
As chairman of the Committee on Agriculture, Nutrition, and Forestry,
I look forward to working with my colleagues in both the Senate and
House of Representatives to ensure that farmers in the United States
who choose to continue to grow tobacco will have that opportunity. I
urge my colleagues to support this amendment and the underlying bill.
Mr. ROBERTS. Mr. President, I discuss the amendment we are about to
vote on. Let me state at the beginning: I am supportive of a tobacco
buyout for our tobacco producers and quota holders, and I will work to
help them achieve this goal. However, it should be a buyout without
strings attached and that will truly end the program.
Unfortunately, this legislation does not achieve this goal. While the
bill does provide a buyout, it then implements annual restrictions on
acreage and production. I have previously stated on this floor my
opposition to acreage and production controls for all crops and
commodity programs. This program should be no different.
I am also concerned that these acreage controls may not be legal
under our World Trade Organization commitments. If these controls would
indeed be declared illegal under our commitments, we could be subject
to a ruling that would put us far above our WTO agriculture spending
caps. This would not only have significant impacts for tobacco and this
program, it could have a significant impact on all our commodities and
farm programs. I cannot support voting for this proposal and putting
all our other commodities at risk.
If these provisions were removed, I believe there would be no
question that this proposed program would be WTO legal, and I would
have no trouble supporting the buyout. I will let my colleagues that
serve on the conference of this bill make their own decision regarding
FDA regulation and the funding mechanism for the buyout. But, I urge
them to support the House language implementing a buyout with no future
acreage and production restrictions being put in place.
Mr. FEINGOLD. Mr. President, I will support the amendment offered by
the Senator from Ohio, Mr. DeWine, and the Senator from Massachusetts,
Mr. Kennedy, but in doing so I also want to note my concern about the
potential for unconstitutional infringement on commercial speech that
the amendment may engender in the regulations it directs to be
promulgated to regulate tobacco advertising. There is little doubt that
the health of our citizens, and in particular the health of our
children, are a substantial governmental interest. And given that
substantial interest, some regulation of tobacco advertising may be
appropriate.
Further, the amendment appropriately sets forth some safeguards that
strive to prevent unconstitutional infringement on commercial speech,
and I commend the authors for including that sensible protection.
Moreover, in the wake of the Lorillard case in 2001, we now have a
somewhat clearer legal standard in this area that can guide these
proposed regulations.
But the rights spelled out in the first amendment of our Constitution
are so fundamental to our liberties that we must be especially
sensitive to the potential for Government overreaching. For that
reason, while I will support the amendment, I will also be monitoring
this aspect of the amendment closely as regulations of tobacco
advertising are developed and implemented.
Mr. HATCH. Mr. President, I address the DeWine-Kennedy amendment to
H.R. 4520, the American Jobs Creation Act of 2004.
Let me say at the outset that I will vote for this proposal tonight,
because I am fully supportive of measures to end tobacco use in the
United States. I can think of few public health dangers worse than
tobacco, and this is especially true for young people. Certainly, in my
home state of Utah, I hear time and time again from concerned parents
and health advocates who point out the devastating health consequences
of tobacco use.
So, I think it is critical that we go to conference on this issue.
However, my support for the amendment is not without some serious
reservations, and I hope they can be addressed and corrected in
conference.
My first concern is that the committee of jurisdiction, the HELP
Committee, should have had the opportunity to consider fully the text
of S. 2461, the Family Smoking Prevention and Tobacco Control Act,
which is included in the DeWine-Kennedy amendment, before it is brought
to the floor for this vote.
Having been the chairman of that committee for several years, I know
full well the complexities of the Federal Food, Drug and Cosmetic Act.
Three hours of debate are not enough time to consider legislation that
makes such dramatic changes to current law.
I have only had a short time to review this legislative language but
I believe there are several troubling components. For example, the
tobacco company marketing provisions alone in this amendment raise
serious 1st Amendment issues, as do the provisions granting authority
to state and local governments to impose specific bans or restrictions
on the time, place and manner of tobacco advertising. I would have
preferred we have a more lengthy debate on about the implications of
these provisions before we vote.
I also think we need to give serious study to the drafting of the
language providing the FDA with the authority to regulate tobacco
products. This area of the law is extremely complex. In addition, I
must point out that the FDA already has been charged with numerous
responsibilities and has been criticized time and time again for its
inability to meet statutory requirements due to funding constraints. In
fact, just yesterday, I held a hearing in the Senate Judiciary
Committee on the safety of imported drugs where FDA officials told
members of my Committee how difficult it would be for them to ensure
the safety of imported drugs because the agency is already strapped for
resources. How can we expect the FDA to take on new responsibilities
without supplying the agency sufficient funding for performing its
current duties?
In closing, let me address the tobacco buyout provisions.
Mr. President, I am all for measures to reduce our Nation's
dependence on tobacco, and measures to encourage less tobacco
production are an important part of that equation.
I am encouraged that the amendment we are considering tonight does
not use taxpayer funds to accomplish the buyout. That is an important
point. I also recognize that the program will help get the Government
out of the farming business while making temporary assistance available
to farmers as they adjust to the free market. That being said,
questions worthy of serious consideration have been raised about where
this assistance will go, and I think we need to study that more.
Mrs. FEINSTEIN. Mr. President, I rise today to support the amendment
offered by my colleagues Senators DeWine and Kennedy. The amendment
they have offered today is the product of many years of hard work and
leadership.
The amendment combines legislation to empower the Food and Drug
Administration, FDA, to regulate tobacco products with Senator
McConnell's tobacco buyout bill.
I believe this is the right approach. Last week, seven of my
colleagues and I wrote to Senators Frist and Daschle to express our
view that no tobacco buyout plan should move ahead if it does not
include meaningful and effective FDA oversight of tobacco.
The 5-year, $9.6 billion tobacco buyout provision in the House FSC/
ETI bill is not only worse for tobacco growers than the McConnell bill,
but it does nothing to protect public health and to reduce tobacco's
tremendous toll in health, lives and money.
The DeWine-Kennedy amendment gives the FDA the authority to: Restrict
advertising and promotions that appeal to children; stop illegal sales
of tobacco products to children; require changes in tobacco products,
such as the reduction or elimination of harmful chemicals, to make them
less harmful or less addictive; prohibit unsubstantiated health claims
about so-

[[Page S8171]]

called ``reduced risk'' tobacco products that would have the effect of
discouraging current tobacco users from quitting or encouraging new
users to start; and require the disclosure of the contents of tobacco
products and tobacco industry research about the health effects of
their products.
This amendment is supported by the American Cancer Society, the
American Heart Association, the Campaign for Tobacco-Free Kids, and the
American Lung Association.
Tobacco use is the leading preventable cause of death in the United
States. Every year in America, tobacco use kills more than 400,000
people and costs our Nation more than $75 billion in health care bills.
Today approximately 4,000 children under age 18 will try smoking for
the first time and 2,000 children will become regular smokers. Smoking
is the cause of one-third of all cancers.
Unless we act to pass FDA regulation of tobacco, this number will
only get worse.
During my time in the Senate, I have become very involved with
cancer. I am the co-chair of the Senate cancer caucus and the vice-
chair of C-Change, formerly the National Dialogue on Cancer, which is
chaired by former President and Barbara Bush.
The cancer community is united in the belief that the single most
important preventive measure is to place tobacco products under the
regulatory control of the Food and Drug Administration. I stand behind
the cancer community and express the same belief.
I firmly believe that cancer cannot be conquered without addressing
smoking and the use of tobacco products.
Smoking results in death or disability for over half of tobacco
users, according to the Centers for Disease Control, CDC.
Over the past two decades, we have learned that tobacco companies
have manipulated the level of nicotine in cigarettes to increase the
number of people to their product.
There are more than 40 chemicals in tobacco smoke that cause cancer
in humans and animals, according to the CDC. Tobacco smoke has toxic
components, as well as tar, carbon monoxide and other dangerous
additives.
It is long past time to reduce the addictive nature of cigarettes and
curtail the marketing of these products to young people. I believe that
empowering the FDA to regulate tobacco will help do that.
The U.S. Surgeon General and the Centers for Disease Control and
Prevention have unequivocally demonstrated that, for example,
antismoking campaigns can reduce smoking, a major cause of cancer.
California is a good example. My State started an aggressive tobacco
control program in 1989 and throughout the 1990s. As a result of
California's aggressive approach, is the first State in the Union to
see a decline in lung cancer among women, as a result of the State's
active prevention efforts.
This amendment will provide meaningful regulation by the Food and
Drug Administration of the content and marketing of tobacco products,
especially the addicting and carcinogenic components.
I am pleased to note that even the Philip Morris companies has
acknowledged the need for FDA to regulate tobacco.
It is long past time to reduce the addictive nature of cigarettes and
curtail the marketing of these products to young people. This amendment
gives FDA the power to regulate tobacco products' content, design,
sale, and marketing.
I am a strong supporter of this amendment. However, I will not
support any final proposal that weakens the DeWine-Kennedy amendment or
contains a tobacco buyout provision that is fully funded by general
revenues.
Mr. ENZI. Mr. President, I cannot support this amendment that would
place the regulation of tobacco products under the jurisdiction of the
Food and Drug Administration.
The question is not whether the Federal Government should regulate
tobacco products. It should and it does already, through a variety of
agencies. The regulations are based on a variety of laws that Congress
has passed over the past few decades.
We have Federal laws to require health warnings on all packaging and
in all print and outdoor advertisements. We have prohibited the
advertisement of tobacco products on television and radio. We require
the Secretary of Health and Human Services to report to us every 3
years on research findings about tobacco and addiction.
We also require States to prohibit the sale of tobacco products to
anyone under age 18. States that do not comply with this requirement
risk the loss of Federal block grant funding.
The question again is not whether Federal regulation of tobacco
products is appropriate. It is whether the FDA should be responsible
for a broad new regulatory scheme that would cover everything from the
manufacture of smokeless tobacco to the sale of cigarettes at the
corner store.
At a time when the FDA's challenges have never been greater or more
significant, the last thing we need is to give the FDA a huge task that
will draw attention and focus away from its already considerable
responsibilities.
The FDA is already overworked and underfunded. We ask the FDA to be
responsible for so many things: ensuring that new drugs and medical
devices are safe and effective, safeguarding the Nation's blood supply,
regulating the manufacture and distribution of food additives and drugs
that will be given to animals, and increasing the security of our food
supply. Consumer and industry groups regularly complain that the FDA's
budget is inadequate and its mandate is too broad to enable the agency
to manage its current workload.
Yet here we are, proposing to give the FDA another huge
responsibility, for which it will have to create another huge
bureaucracy within its already sprawling structure. Now, more than
ever, our families and children need to know that the FDA can meet its
current obligations.
I recognize that a number of important voices in the public health
community are calling for FDA regulation of tobacco products, but I
fail to understand why regulation by this particular agency is so
critical.
Those who support FDA regulation of tobacco say that they are not
interested in banning cigarettes or other tobacco products. This makes
no sense to me. With everything we know about the dangers of tobacco
use, how would the FDA arrive at any other conclusion but to ban
tobacco products?
One of the purposes of the bill would ``vest the FDA with the
authority to regulate the levels of tar, nicotine, and other harmful
components of tobacco products.'' Well, we know that nicotine is an
addictive drug and by itself may cause health problems. And we also
know that tar and other chemicals in tobacco products are very harmful
to our health.
How would the FDA remain true to its mission without requiring
manufacturers of tobacco products to reduce the level of nicotine to
zero? Reducing the level of the addictive drug in tobacco products
would effectively result in a ban of tobacco products--after all, how
would a smoker get their ``nicotine high'' from a nicotine-free
product?
Having said that, I believe an outright ban on tobacco products is
impractical. If I thought that banning cigarettes would stop people
from smoking, I would say let's pass a law and make it so. Banning
cigarettes will not stop people from smoking, though, just like
prohibition failed to stop people from drinking.
So if we are not going to ban tobacco products, then what is the
point of FDA regulation of tobacco? We already have the necessary tools
to address the other concerns that some use to justify giving the FDA
this new power.
For instance, the Federal Trade Commission has broad authority to
prevent false or misleading claims for consumer products, and Congress
has given the FTC the explicit authority to oversee the labeling and
advertising of tobacco products.
For health or safety claims in advertising, the FTC generally
requires a high level of substantiation, including competent and
reliable scientific evidence. The record shows that the FTC has not
hesitated to exercise its enforcement authority to prevent or correct
false or misleading tobacco product advertising, including express or
implied claims about exposure and other health-related issues.
So, if a cigarette manufacturer were to promote a ``reduced-risk''
product

[[Page S8172]]

with misleading advertising or unsubstantiated claims, I am confident
that the FTC would take decisive action against them. In fact,
researchers supported by the National Institutes of Health are already
studying ``reduced-risk'' products with a skeptical eye, providing the
type of independent scientific review that goes well beyond anything
the FDA customarily produces on its own. This suggests to me that
manufacturers of ``reduced-risk'' products are not going to be able to
count on the Government's silence in response to any advertising claims
they may make.
I would rather have the FTC continue its vigorous enforcement against
dangerous or deceptive advertising claims rather than set up a
regulatory scenario under which the FDA puts its ``stamp of approval''
on a reduced-risk cigarette. Most Americans see the FDA as the
protector of the public health, yet everyone agrees that smoking kills,
and that there is no such thing as a ``safe'' cigarette. The FDA would
send a mixed and confusing message if it were suddenly to begin
approving tobacco products that would still kill the user, just at a
slower pace.
Another argument for FDA regulation of tobacco products is that we
need to involve the FDA if we are going to crack down on illegal sales
of tobacco products to children. Right now, this job belongs to State
and local governments, and I believe it should stay that way.
Every State has laws against selling tobacco to people under the age
of 18, so the issue is enforcing these laws, not creating new ones. And
these current laws are working. The number of kids who have purchased
tobacco in retail stores has dropped by 50 percent since the
implementation of the Federal Synar amendment in the late 1990s.
Working together with States, communities and retailers, we already
are making great strides in preventing kids from purchasing tobacco.
Our current efforts are working, so it makes no sense to change horses
in mid-stream and bring the FDA into every convenience store across
America.
To reduce underage access to tobacco, we ought to build upon the
successes of the Synar amendment. This Congress is due to reauthorize
the agency that oversees the implementation of the Synar amendment.
This gives us the perfect opportunity to consider how the Synar
amendment is working and what we could do to make it even more
effective.
Combining greater education with tougher enforcement is the answer to
tobacco prevention. The States that take the most comprehensive
approaches to tobacco prevention, particularly those that work closely
with local programs and coalitions, have achieved some of the best
records, in preventing the initiation of tobacco use by kids.
We should hold these States out as models for others, instead of
inserting a new Federal bureaucracy into the equation. Our Federal
efforts should support our communities by providing tools and
information for adults on the dangers of tobacco use, teaching our kids
about these dangers so that they don't start using tobacco, and on
enforcing the laws we already have on the books. But our local
communities and states should take the lead.
Stopping kids from smoking will require continuing collaboration
between State governments, local governments, community organizations,
academic institutions, and Federal agencies like the FTC and the
Department of Health and Human Services. And this partnership is
working. It has successfully reduced the prevalence of smoking in the
United States by 22 percent from 1990 to 2002. It also has reduced the
prevalence of smoking by high schoolers by 22 percent from 1997 to
2001.
These numbers show that we are making progress. Let's not mess with
success. Let's stick with what is working.
I am no fan of tobacco, but I am going to vote against giving a huge
new responsibility to the already overburdened FDA. Giving tobacco
regulation to the FDA will not stop adults from smoking, and I doubt
whether the FDA would to any better at keeping cigarettes out of the
hands of kids than our States and communities are doing.
I reject the notion that the way to show you're ``for kids'' and
``against big tobacco'' is by voting for the creation of a new and
unnecessary bureaucracy that would operate under a mandate that is
simultaneously too broad and too vague.
This vote is not a choice between kids and big tobacco. This vote is
about the best way for the Federal Government to continue regulating
tobacco products.
I will oppose this amendment because I believe the best role for the
Federal Government in tobacco prevention is to focus on education and
enforcement. We already have the laws and regulations in place. Let's
use them to the fullest before we create new ones.
Mr. DASCHLE. Mr. President, for several years, those in tobacco
country have been working to enact a program to transition tobacco
farmers out of the current tobacco quota program. At the same time,
many of us have been working to give the Food and Drug Administration
regulatory authority over tobacco. Today we have the opportunity to
pass legislation that does both.
In the finest tradition of the U.S. Senate, this amendment embodies
compromise that represents a careful balance of often disparate and
competing interests. While no member got everything they wanted, each
participant has won important victories that made this proposal
stronger.
Senators from tobacco areas have been pushing for a tobacco buyout,
to transition tobacco farmers from the antiquated quota system. Being
from a rural State, I understand the economic engine that agriculture
provides rural America. And, I appreciate the struggles that tobacco
farmers have faced in recent years.
The tobacco buyout included in this amendment provides tobacco
farmers and quota holders important economic assistance as they
transition from the current tobacco quota program to the free market.
The buyout has several features that are superior to the House-passed
buyout bill. First, the buyout is paid for through assessments on the
tobacco manufacturers instead of by the taxpayers. Second, the
legislation limits the production of tobacco to traditional growing
areas. This ensures that tobacco farmers who choose to continue growing
tobacco do not have to unfairly compete with startup tobacco production
in other parts of the country. Third, this legislation provides
impacted states with economic development grants to help diversify
tobacco dependent economies.
On the Democratic side, both Senator Edwards and Senator Hollings
have been working tirelessly on tobacco for several years. And, Erskine
Bowles has personally called scores of my colleagues to let them know
how important a buyout is, and how important it was to get this done.
In large part, his efforts to educate members about the effects the
quota cuts have on farmers and communities helped ensure passage of the
buyout today. His advocacy also helped ensure an additional $50 million
in economic support for North Carolina was included in the bill.
Many of us also feel very strongly that we need to provide FDA with
authority to regulate tobacco. Each year, I am visited by South Dakota
youth advocates who volunteer their free time to discourage tobacco use
by their peers. They are some of the most impressive young people you
could hope to meet. And their cause couldn't be more important.
In the United States, over four million high school students are
current or past smokers--29 percent. Thirty-three percent of South
Dakota high school students smoke. In South Dakota alone, 5,100 kids
try cigarettes for the first time each year. Of those, 2,300 South
Dakotans under the age of 18 become regular, daily smokers each year.
These numbers are alarming because it is truly a matter of life and
death.
Four-hundred thousand people die each year from their own cigarette
smoking. Forty thousand die because other people smoke. In South
Dakota, 900 children have lost at least one parent to a smoking-caused
death. And, in addition to the human cost, there are significant
financial costs. The total public and private health care expenditures
caused by smoking in this country total over $75 billion each year.
Medicare alone has over $20 billion each year in smoking-related
expenditures.
Today, we are considering legislation to address this critical public
health

[[Page S8173]]

need. I thank Senators DeWine and Kennedy for their hard work on this
issue. The bipartisan bill we have before us would give the FDA the
authority to restrict tobacco advertising, particularly advertising
that targets children. Under this bill, the FDA could prevent tobacco
sales to children and limit cigarette sales to face-to-face
transactions in which age can be verified. The bill calls for stronger
warnings on packaging and allows the FDA to prevent cigarette
manufacturers from misrepresenting the facts. It would also allow the
FDA to reduce or remove hazardous ingredients from cigarettes, when
feasible, in order to help those who are addicted.
The FDA authorities provided by this amendment are critical to
reducing smoking, particularly among our children. And the provision to
assist tobacco farmers are critical to remedy a growing problem. This
bipartisan amendment represents a true compromise and I urge my
colleagues to support it.
Mr. HARKIN. Mr. President, we have a chance today to address one of
the most significant public health threats of our lifetimes--tobacco
use. For my entire tenure in Congress I have been working to protect
our children from big tobacco and the horrendous health risks
associated with the deadly habit. It was in 1977 that I first
introduced legislation calling for repeal of the tax deductibility of
tobacco advertising and marketing so taxpayers would not have to
subsidize billions to promote smoking. Back in 1998, I introduced the
KIDS Deserve Freedom Act to give FDA authority to regulate tobacco and
more specifically set up a plan to cut the number of kids who start
smoking in half. More recently, I introduced the HeLP America bill to
reform our health care system to focus more on prevention and wellness.
It would require tobacco companies to reduce teen smoking rates or
instead face a stiff financial penalty.
Unfortunately, victories in the tobacco wars have come few and far
between. But I am more hopeful now than ever that we can pass a
comprehensive plan that would once and for all change how this Nation
deals with tobacco and dramatically cut the number of our kids addicted
to this deadly product. More that 400,000 Americans die of tobacco
related illness at a cost of over $100 billion. And the tobacco
industry has been engaged in a systematic campaign of distortion and
deceit to hook kids and hide the facts from the American people.
Our goal is to be on the Senate floor 3 years from now announcing
that, indeed, child smoking has been cut in half.
The time is ripe for regulation. Every day, 4,000 children under age
18 start smoking, of which 1,000 will ultimately die of smoking-related
diseases. Almost 90 percent of adult smokers started using tobacco at
or before age 18; the average youth smoker begins at age 13 and becomes
a daily smoker by age 14\1/2\.
We cannot wait another day to end these senseless and preventable
statistics. The Dewine-Kennedy-McConnell amendment will once and for
all give the FDA the authority they need to regulate this industry
while at the same time give tobacco farmers the ability to get out. I
want to be clear, though, there has already been a tremendous amount of
compromise to get to this deal and this FDA authority/buyout
combination must be kept together for any FSC conference to occur. But
the time has come for desperately needed regulation.
Five years after the multi-billion-dollar settlement with big
tobacco, I think we can all agree that we still have a great deal of
work to do to protect our Nation's children from tobacco. While the
tobacco settlement prohibits television and billboard marketing of
tobacco and direct advertising to children, the end result has been
less than perfect.
The tobacco companies have perceived kids as young as 13 years of age
as a key market. As an RJR Tobacco document put it, ``Many
manufacturers have `studied' the 14-20 market in hopes of uncovering
the `secret' of the instant popularity some brands enjoy to the almost
exclusion of others. . . . Creating a `fad' in this market can be a
great bonanza.''
The tobacco industry spent an estimated $10 billion on advertising
and promotion in 2001. That is $30 million every day. This number is
more alarming in light of the fact that this $11 billion is a 67
percent increase in spending from 1998 when the settlement took effect.
I suppose the tobacco industry can respond by saying that none of
this spending was directed specifically at young people. But we do know
that in 2000, $60 million was spent on advertising in youth-oriented
magazines. We know that, while promotional items such as t-shirts,
backpacks, and CD players are ostensibly for smokers over 21 the end
result is that 30 percent of kids 12 to 17 years old own at least one
of these promotional items. This is frightening because students who
own a promotional item are 4 times more likely to be smokers than kids
who don't own these items. Even though we don't see tobacco packaging
as blatant as Joe Camel, the industry has become more sophisticated in
their approach. Let's take a look at some of these products. You tell
me a hip-hop picture on Kool cigarettes is not directed at kids.
A package of Liquid Zoo cigarettes looks more like a candy package
than anything.
And there is more. Big tobacco is using promotions and more creative
marketing strategies but they are also using slicker tactics than that.
Take for example a study that found 50 percent of tobacco retailers had
tobacco ads at young kids' eye level. That is tobacco marketing at
three feet or lower. Twenty-three percent of these tobacco retailers
had cigarette product displays within 6 inches of candy. How can we say
that this is not marketing directed at our kids? These are the kinds of
tactics that are unconscionable and must be stopped. The FDA must be
given the necessary authority to regulate tobacco.
And what about disclosing ingredients? Tobacco can make claims that
their cigarette is safer, and we have no way of proving that.
Today, the Senate will consider an amendment that is critical to the
health of both the kids and the adults in our country. This amendment
would give the Food and Drug Administration the authority to protect
ourselves from the dangers of starting smoking. This amendment would
give the FDA the authority to regulate the sale, distribution, and
advertising of cigarettes and smokeless tobacco in order to stop
tobacco company marketing practices that target children and mislead
the public. It would also give the FDA the authority to crack down on
vendors who continue to sell cigarettes to kids.
HHS Secretary Tommy Thompson testified just this morning that over
$150 billion was spent on tobacco-related illness last year. That is
only the monetary cost of this lethal product. Forty-seven million
Americans smoke, and 400,000 people a year die because of it. Smokers
have a one in three chance of dying from smoking-related conditions.
This is not the future that we want to doom our children to. I hope my
Senate colleagues will join me in protecting the health of our youth by
supporting this important amendment.
This quota buyout is far from perfect, but I can go along with it as
long as it is inextricably bound together with the FDA authority. It is
absolutely essential that these two components remain tied together in
any final legislation that is sent to the President for signature.
The quota buyout has been sought by tobacco growers and by the
tobacco companies. Basically, they say that the current system, begun
in the Great Depression, is out of date. It cannot accommodate the
present-day global market in tobacco and tobacco products.
A new system without quotas will be easier for tobacco growers and
the tobacco companies to operate under. The buyout of quota will help
farm families who face a bleak economic future in tobacco farming make
the transition to other opportunities. Clearly, ending the quota and
price support system will lower the cost to the tobacco companies of
acquiring tobacco for manufacturing.
If we are giving the tobacco companies an easier system--a less
costly system--in which to procure tobacco and conduct their business
of manufacturing and selling tobacco products, then it is absolutely
critical--even more critical--that the FDA have basic

[[Page S8174]]

authority to regulate the marketing of tobacco to the public--and to
children most importantly.
It is also essential that the quota buyout be paid for through
assessments on the tobacco companies, as it is in this amendment. That
is so for several reasons. In essence, the funding approach in this
amendment is a continuation of the principle that has been in effect
for over two decades, called the No-Net-Cost Tobacco Program.
The No-Net-Cost principle--although it has not been followed 100
percent--is that the taxpayers do not bear the cost of operating the
tobacco quota and price support loan program. By the same token, if we
are ending the tobacco quota and price support loan program in this
amendment then the taxpayers should not be forced to bear that cost. If
the taxpayers pay for the quota buyout that would take our policy
backwards and abandon the principle established, as I say, more than 20
years ago.
We have learned much in the intervening years since the No-Net-Cost
principle was adopted in 1982 about the actions and behavior of the
tobacco companies. In the face of the companies' infamous record, it
would be a blatant travesty of justice to use taxpayer dollars now for
the benefit of the tobacco companies through ending the quota and price
support loan program.
In any case, the taxpayers don't have the money to fork over for a
tobacco quota buyout. The House of Representatives has adopted a quota
buyout spending $9.6 billion of taxpayer money. In this time of record
budget deficits, it would be irresponsible to saddle our children and
grandchildren with another nearly $10 billion in debt plus interest
costs for years into the future. And it would be even more
irresponsible to use taxpayer funds for that purpose when critically
important farm bill programs for conservation, rural development,
research and renewable energy have been cut.
One last point. This legislation should have been considered by the
Committee on Agriculture, Nutrition and Forestry prior to floor action.
It is unfortunate that something as significant as the elimination of
an existing agricultural program and the creation of a new program did
not benefit from consideration by the committee of jurisdiction.
I would like to turn my attention very briefly at this time to the
issue of overtime. We are about to go to conference on the FSC/JOBS
bill, and as we all know, our Senate version of that bill contains my
overtime provision, which passed this body with 52 votes.
We voted in the Senate to ensure that any worker who currently has
the right to earn overtime as a result of his or her job duties, would
not lose that right under the Bush administration's new rules, due to
take effect next month.
When we debated the new rules back in May, I and others argued that
they represented a shameful assault on the paychecks of millions of
hard-working Americans. We were right. Earlier this week, three former
Department of Labor, DOL, officials, who worked under Republican and
Democratic administrations, released a report that detailed their
assessment of the new rules. It states unequivocally that in every
instance where DOL has made a change to existing rules, with the
exception of the salary-level adjustment, it has weakened the criteria
for overtime exemptions.
The portion of the rule that expands overtime eligibility for low-
income workers by raising the minimum-salary threshold is a good step.
My amendment allows that portion of the rule to go forward. I believe
the salary threshold should be raised even higher than in DOL's
proposal, to take inflation into account.
Also this week, the Economic Policy Institute, EPI, released its
analysis of DOL's final rule, which found that 6 million workers will
lose their right to overtime when the new regulations take effect.
EPI's analysis of the administration's new rules include these
findings:
Nearly 2 million administrative workers will lose overtime rights
under a rule change that makes ``team leaders'' ineligible, even when
they don't supervise others on the team.
A change in the definition of who is a ``learned professional'' will
mean the end of overtime eligibility for about 920,000 workers without
a college or graduate degree.
Overtime rights will end for about 1.4 million workers reclassified
as executives under the new rules, even though they do little
supervision and a great deal of manual or routine work, and they only
recommend ``changes in status'' of other workers.
Others who will lose their current overtime rights under various
provisions of the new law are: 130,000 chefs, sous chefs, and cooks (to
be reclassified as ``creative professionals''); 160,000 financial
services workers; 117,000 teachers and computer programmers.
The stakes for workers--and for our economy--are high. Time-and-a-
half pay accounts for about 25 percent of the total income of Americans
who work overtime. I hope the conferees will retain our provision.
Millions of American workers deserve an iron-clad guarantee that their
overtime rights are safe.
(At the request of Mr. Daschle, the following statement was ordered
to be printed in the Record.)
Mr. BAUCUS. Mr. President, I support the Kennedy-DeWine
tobacco amendment to the JOBS bill. I believe that FDA authority must
go hand-in-hand with any tobacco buy-out. I am pleased that we were
able to reach this compromise. Although I was unable to cast my vote
for this important amendment, I did want to be on the record in support
of the amendment.
Mr. INHOFE. Mr. President, we have repeatedly regulated tobacco
consumption because it is a real public health hazard and we need to
make certain that people are aware of the risks they take in using it.
Of course, that does not mean that any law that regulates tobacco is a
good one. The amendment we are discussing would indeed not make good
law. I would like to call your attention to troubling aspects of this
current amendment that authorizes Food and Drug Administration, FDA,
regulation of tobacco.
This amendment would create more bureaucracy and increase the size of
government by giving the FDA more control over the tobacco industry.
This increased bureaucracy will lead to the need for more funding and
personnel to enact the new regulations. This amendment would give the
Secretary the power to impose ``restrictions on the sale and
distribution of a tobacco product, including restrictions on the access
to, and the advertising and promotion of, the tobacco product, if the
Secretary determines that such regulation would be appropriate for the
protection of the public health.'' Here are some further examples of
the increased FDA authority: It would allow the Secretary to require
warning labels to cover half a pack of cigarettes, even requiring
colors, graphics, and formats.
It would give the Secretary authority to require disclosure of any
cigarette or other tobacco product constituent including any smoke
constituent that he deems to benefit public health. This could very
easily be an impossible burden levied at the Secretary's whim.
When it comes to record keeping, this bill simply says that the
Secretary of the FDA will take into account the size of businesses when
putting the regulations into place. This new authority is too vague,
and it could be interpreted as giving the FDA the ability to
discriminate based on arbitrary ideas of what size a business should
be. This amendment would give the FDA wholesale authority to regulate
every aspect of construction, ingredients, components or properties,
including the sale, distribution, access, marketing and labeling,
through the application of ``product standards.''
I am also troubled by the fact that we do not have the option to make
amendments to such an expansive bill since it is being rushed through
the Senate attached to the FSC/ETI bill instead of following
traditional committee procedures such as hearings and markup and floor
amendment.
This amendment cites underage tobacco use as a reason for increased
regulation. Underage use is troubling, but the fact is that there are
already decisive laws in place to prevent minors from purchasing
tobacco. There is a need for better enforcement, not more FDA
regulation. The authority given to the FDA in this amendment no longer
focuses on reducing youth usage, but rather, on adult consumption by
stating that the new restrictions focus on protecting the public
health.

[[Page S8175]]

Another problem is that this amendment holds retailers accountable
for labeling when it is the manufacturer's responsibility. ``This
paragraph shall not relieve a retailer of liability if the retailer
sells or distributes tobacco products that are not labeled in
accordance with this subsection.''
These FDA regulations would reduce competition by increasing
regulatory costs and restricting the ability to communicate with adult
smokers.
These proposals place so many barriers to the introduction of new
conventional products, those making no health claims and potentially
reduced risk, that it discourages their development.
It increases black market attractiveness. The numerous restrictions
and regulations provide ample incentives to illegal operators.
I ask unanimous consent that the text of several statements made by
the National Association of Convenience Stores, the American
Conservative Union, the Association of National Advertisers, the
American Association of Advertising Agencies, the American Advertising
Federation, the American Wholesale Marketers Association, and many on
the HELP Committee, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Association

of Convenience Stores,

Alexandria, VA, June 17, 2004.
Re KEY VOTE ALERT.

Hon. Senator Frist,
Dirksen Senate Office Building,
Washington, DC.
Dear Senator Frist: I am writing on behalf of the National
Association of Convenience Stores (NACS) to inform you that
as drafted, and without significant changes, the Kennedy-
DeWine amendment to the FSC/ETI bill, regarding FDA's
authority to regulate the sale of tobacco products has a
significant negative impact to the retailing community and
therefore, NACS urges you to oppose this effort.
NACS is an international trade association that represents
the over 130,000 convenience stores across the United States
whom employ over 1.4 million hard working Americans. Small
family- owned operations predominant in the convenience store
industry, and in fact, 70 percent of NACS members own and
operate 10 or less stores.
This legislation, introduced by Senators Ted Kennedy and
Mike DeWine and Representatives Henry Waxman, Tom Davis and
Marty Meehan, has several fundamental problems.
Convenience Stores Receive Unequal Treatment: Under this
legislation, all tobacco retailers are NOT treated equally.
To be comprehensive, all retailers of tobacco, including
those selling over the internet, through the mail, through
adult-only locations, and on Indian reservations, must abide
by the same regulations, however, these bill fall far short.
Further the bill does not specify how the law will be
enforced (state, local or federal authorities), thereby
neglecting the issue of Native American sovereignty and
enforcement on tribal lands (to which all consumers have
access through the internet).
Responsible Retailers Treated Unfairly: Authors of this
legislation continue to hold retailers liable for actions out
of their control. For example: If a company trains its
associates in an agreed-upon age-verification course, that
company should not lose its tobacco license if a trained
associate makes a mistake (knowingly or accidentally). If the
company is irresponsible and does not prepare its associates
properly, only then should the store have its tobacco license
suspended. Additionally, retailers should not be held
responsible for the numerous warning labels being required on
product delivered to them.
Missing Penalties on Minors: Minors, not retailers,
initiate attempted illegal transactions. There should be
adequate penalties to discourage both supply and demand of
underage tobacco consumption. These bills have no such
provision.
Lacking Key Provision: Retailers need tools to help
continue to crack down on illegal sales. Another provision
missing would allow for easier electronic age verification
for retailers choosing to use this tool.
Unconstitutional Provisions Included: There are also
advertising restrictions, which the U.S. Supreme Court has
already struck down as unconstitutional. Moreover, these
restrictions could negatively impact signage inside a store
since it may be visible from outside the store.
Although the authors indicated that retailers' concerns
were addressed in this legislation bill, they fell short in
several areas and failed to address several major points of
contention. Without significant changes to the Family Smoking
Prevention and Tobacco Control Act (S. 2461 and H.R. 4433),
NACS urges Members to oppose this legislation and will KEY
VOTE AGAINST any similar amendment that negatively impacts
the retailing industry.
Sincerely,
Allison R. Shulman,
Director, Government Affairs.
____

American Conservative Union,

Alexandria, VA, July 15, 2004.
Dear Senator: The American Conservative Union has learned
that anti-smoking and public health advocates are dropping
their support of the proposed FDA legislation which is
scheduled for consideration on the Senate floor today.
Members of these groups have concluded that no evidence
exists that links established performance standards by the
FDA to safer products and fewer deaths, as argued by Philip
Morris.
In fact, public health advocates are convinced that the
basic regulatory framework established by the FDA bill will
make it virtually impossible for reduced-risk products to
enter the marketplace. When the economic incentive for
companies to fund comprehensive and meaningful research into
significantly safer products is taken away, the economic
enticement of profit ceases to exist.
FDA regulation could potentially be used to encourage
research, develop and market actual reduced risk products,
but the proposed legislation does the opposite. It acts as a
roadblock preventing development and marketing of these
constantly evolving products.
The passage of FDA regulation is good for only one thing:
padding Philip Morris' bottom line.
This new information further reinforces ACU's opposition to
the current FDA regulation legislation. On behalf of our one-
million members and supporters, the American Conservative
Union strongly urges you to oppose and vote against FDA
regulation of American tobacco, an industry that already is
sufficiently regulated by the federal government. This
harmful prospect is bad for American business, and more
importantly, curbs the incentive for continuing the research
and development of safer products, as public health experts
have concluded.
____

June 1, 2004.
Hon. Judd Gregg,
Chairman, Committee on Health, Education, Labor and Pensions,
U.S. Senate, Russell Senate Office Building, Washington,
DC.
Dear Mr. Chairman: On behalf of the Association of National
Advertisers (ANA), the American Association of Advertising
Agencies (AAAA) and the American Advertising Federation
(AAF), we are writing to express our opposition to several of
the marketing provisions of S. 2461, the ``Family Smoking
Prevention and Tobacco Control Act.''
We oppose section 102 of the bill, which would direct the
Secretary of Health and Human Services to publish an interim
final rule that is ``identical in its provisions'' to the
proposed rule promulgated by the FDA in 1996. Legal experts
from across the political spectrum agree that the sweeping
and unprecedented restrictions in that proposal, which would
result in a de facto ban on tobacco advertising, would
violate the First Amendment. In fact, the U.S. Supreme Court
held in the Lorillard case in 2001 that a Massachusetts
tobacco regulation that was virtually identical to one part
of the FDA proposal was unconstitutional.
Section 201 of the bill would add new disclosure
requirements for all tobacco advertising on top of those
contained in the FDA's 1996 proposed rule. In addition, the
bill would require the FDA to conduct a rulemaking to
determine whether it should mandate the inclusion of tar and
nicotine yields in all labels and advertising. All of the
various disclosure requirements of S. 2461 place the
government in the role of copywriter. By ``seizing'' a
substantial portion of every tobacco ad for government-
mandated disclosures, the bill raises First Amendment
concerns about ``compelled speech'' and could result in an
unconstitutional ``taking'' of a company's commercial
property in violation of the Fifth Amendment.
We also oppose section 203 of S. 2461, which would grant
new authority to state and local governments to impose
``specific bans or restrictions on the time, place and
manner'' of tobacco advertisements. Much of the advertising
for tobacco products occurs in interstate commerce. Allowing
individual states and local governments to impose their own
bans or restrictions would result in a crazy-quilt of
inconsistent laws, making tobacco advertising virtually
impossible.
We take no position on the provisions of the bill that
would generally grant the Food and Drug Administration (FDA)
the authority to regulate tobacco products.
Enacting the FDA's 1996 Tobacco Advertising Restrictions
Would Violate the First Amendment
We believe that the sweeping tobacco advertising
restrictions promulgated by the FDA in 1996 violate the First
Amendment rights of tobacco companies to communicate with
adults. The FDA's proposal would impose the following
restrictions on tobacco advertising:
Ban all outdoor advertising for tobacco products within
1,000 feet of any elementary or secondary school or
playground;
Require all permitted tobacco advertising, including direct
mail, to be black text on a white background, except in
magazines, newspapers or other periodicals with adult
readership of 85% or more, or fewer than 2 million readers
under the age of 18;
Require all advertisements and labels to identify the
tobacco product as a ``nicotine delivery device'';
Require all advertisements to contain a government-dictated
``brief statement'' (in

[[Page S8176]]

addition to the current Surgeon General's warning) to serve
as a warning about possible dangers associated with the use
of tobacco products;
Ban the use of promotional items such as hats or T-shirts
containing the name or logo of a tobacco product, and
prohibit other promotional techniques such as product give-
aways, rebates or refunds;
Require sponsorship of athletic, musical, social or other
cultural events in corporate name only;
Require all advertisers of tobacco products to fund and
participate in a national public education campaign designed
to discourage the use of tobacco products by minors. The FDA
would require the annual fund established for this campaign
to total $150 million;
Require compliance with more stringent requirements as
enacted by state and local governments; and
Authorize the enactment of additional restrictions seven
years after implementation of a final rule if the number of
minors who use tobacco products has not decreased by 50% from
1994 levels.
The net effect of the FDA proposal would be a de facto ban
on advertising tobacco products. This regulatory package
violates the First Amendment protections for commercial
speech.
The U.S. Supreme Court has made it clear that truthful,
nondeceptive commercial speech cannot be banned or restricted
unless the restriction ``directly and materially advances'' a
``substantial governmental interest'' and is ``narrowly
tailored'' to ``reasonably fit'' that interest. See Central
Hudson Gas and Electric Corporation v. Public Service
Commission of New York, 447 U.S. 557 (1980).
In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484
(1996), a unanimous Supreme Court reaffirmed that all
truthful, nondeceptive advertising about a legal product is
entitled to the same level of First Amendment protection,
regardless of the product.
In the Lorillard case, the Supreme Court struck down a
regulation promulgated by the Attorney General of
Massachusetts that was similar in many respects to the FDA's
proposed rule. The Massachusetts regulation banned outdoor
ads within 1,000-feet of schools, parks and playgrounds and
also restricted point-of-sale advertising for tobacco
products. See Lorillard Tobacco Company v. Thomas Reilly,
Attorney General of Massachusetts, 533 U.S. 525 (2001).
In finding that the Massachusetts regulation was not
narrowly tailored, Justice O' Connor actually noted a similar
problem with the FDA regulation: ``First, the Attorney
General did not seem to consider the impact of the 1,000-foot
restriction on commercial speech in major metropolitan areas.
The Attorney General apparently selected the 1,000-foot
distance based on the FDA's decision to impose an identical
1,000- foot restriction when it attempted to regulate
cigarette and smokeless tobacco advertising. (Citations
omitted) But the FDA's 1,000-foot regulation was not an
adequate basis for the Attorney General to tailor the
Massachusetts regulations. The degree to which speech is
suppressed--or alternative avenues for speech remain
available--under a particular regulatory scheme tends to be
case specific. (Citations omitted) And a case specific
analysis makes sense, for although a State or locality may
have common interests and concerns about underage smoking and
the effects of tobacco advertisements, the impact of a
restriction on speech will undoubtedly vary from place to
place. The FDA's regulations would have had widely disparate
effects nationwide. Even in Massachusetts, the effect of the
Attorney General's speech regulations will vary based on
whether a locale is rural, suburban, or urban. The uniformly
broad sweep of the geographical limitation demonstrates a
lack of tailoring.'' (Emphasis added)
Thus, the Supreme Court has already examined one provision
of the FDA proposal--the 1,000-foot ban on outdoor ads--and
suggested that it violates the First Amendment because it is
not narrowly tailored.
The Supreme Court rejected the efforts of the Massachusetts
Attorney General to ``childproof' the flow of information in
our society. Children deserve to be protected from
inappropriate or harmful material, but the government may not
use the guise of protecting children to impose sweeping
restrictions on information intended for adults. In Bolger v.
Youngs Drug Products Corporation, 463 U.S. 60 (1980), the
Court stated that efforts to restrict advertising cannot
lower discourse in society ``to the level of the sandbox''
and citing Butler v. Michigan, 353 U.S. 383 (1957), that
``Government may not reduce the adult population . . . to
reading only that which is fit for children.'' 463 U.S. at
73.
One of the most vocal critics of the tobacco industry,
Harvard Law School Professor Laurence Tribe, argued that the
tobacco advertising bans included in the master settlement
agreement between the tobacco companies and the states, if
legislated, would raise serious First Amendment concerns. So
have a broad range of public policy groups, from the
Washington Legal Foundation to the American Civil Liberties
Union (ACLU). In testimony to the Senate Judiciary Committee
on February 20, 1998, the ACLU stated: ``The ACLU believes
that . . . both legislation and proposed regulation by the
Food and Drug Administration (FDA) . . . on tobacco
advertisements . . . is wholly unprecedented and, if enacted,
will most likely fail to withstand constitutional challenge.
Moreover, we believe that the enactment of the proposed
tobacco advertising restrictions would impose a drastic
curtailment of commercial speech and could have a chilling
effect on the right of the public and businesses to engage in
free speech about controversial subjects.''
A number of legal scholars, including Judge Robert Bork;
Burt Neuborne, Professor of Law at New York University School
of Law; Rodney Smolla, Professor of Law at the College of
William & Mary; and First Amendment expert Floyd Abrams have
all publicly testified regarding the constitutional problems
with legislating this type of speech restriction. In a
Washington Legal Foundation publication in 1996, Judge Bork
stated: ``[T]he recent proposal of the Food and Drug
Administration (FDA) to restrict severely the First Amendment
rights of American companies and individuals who, in one way
or another, have any connection with tobacco products [is]
patently unconstitutional under the Supreme Court's current
doctrine concerning commercial speech as well as under the
original understanding of the First Amendment.''
While the government has a legitimate interest in fighting
the use of tobacco products by minors, the FDA's proposed
regulations sweep far too broadly and result in massive
censorship of truthful speech aimed at adults.
New Disclosure Requirements Would Overload Advertisements
As noted above, the FDA's proposed rule from 1996 would
require that all ads identify the tobacco product as a
``nicotine delivery device'' and contain a government-
dictated ``brief statement,'' in addition to the current
Surgeon General's warnings. Section 201 of S. 2461 would add
another layer of disclosures to all ads. It would require the
``label statement'' to comprise at least 20% of the area of
the ad, to be placed at the top of each ad with specific
type-sizes. Further, section 206 of the bill requires an FDA
rulemaking to determine whether the agency should also
mandate the inclusion of tar and nicotine yields in all
labels and advertising.
These various disclosure requirements would result in
information overload for all tobacco product ads. By
mandating these disclosures and requiring specific type
sizes, the bill would place the government in the role of
copywriter. It raises serious First Amendment concerns about
``compelled speech.'' It could ultimately result in an
unconstitutional ``taking'' of the company's commercial
message in violation of the Fifth Amendment. Advertising is
not free. When a tobacco company purchases advertising space,
it acquires an important property interest. The multiple
disclosure requirements of S. 2461 would literally ``seize''
a substantial portion of the company's space and conscript it
for government-mandated messages. This would be an
interference with both free speech and property rights.
New State/Local Ad Restrictions Would Make Tobacco
Advertising Impossible
We are strongly opposed to section 203 of S. 2461. That
provision would authorize states and thousands of local
governments to impose ``specific bans or restrictions on the
time, place and manner, but not content,'' of tobacco
advertising. This could result in a crazy quilt of
inconsistent advertising restrictions, both intra-state and
inter-state. For example, tobacco advertising is often placed
in publications with regional or national distribution. How
could a tobacco company place an ad in a popular magazine
that complies with hundreds or potentially thousands of
inconsistent restrictions on the ``time, place and manner''
of tobacco ads?
This provision would make tobacco advertising impossible on
a regional or national basis and result in a defacto ban on
this category. It would authorize state and local governments
to engage in censorship of one form of speech based solely on
its content.
Conclusion
Some claim that tobacco products are unique, so that it is
permissible to ignore the First Amendment just for those
products. The Supreme Court has rejected this theory in a
series of cases, including Lorillard and the 44 Liquormart
case. What you do to tobacco advertising today, you will be
urged to do to advertising for many other ``controversial''
products tomorrow. Justice Thomas recognized this in his
concurring opinion in the Lorillard case: ``Nevertheless, it
seems appropriate to point out that to uphold the
Massachusetts tobacco regulations would be to accept a line
of reasoning that would permit restrictions on advertising
for a host of other products.''
Don't start down this road to content-based censorship of
advertising. We urge you to remove these marketing provisions
from S. 2461. The government can take strong, effective steps
to restrict tobacco sales and access to minors without
trampling on the First Amendment.
Thank you for your consideration of our views.
Sincerely,
Daniel L. Jaffe, Executive Vice President, Association of
National Advertisers, Washington, DC.
Richard F. O'Brien, Executive Vice President, American
Association of Advertising Agencies, Washington, DC 20036.
Jeffry L. Perlman, Executive Vice President, American
Advertising Federation, Washington, DC 20005.

The Association of National Advertisers (ANA) is the
industry's premier trade association dedicated exclusively to
marketing

[[Page S8177]]

and brand building. We represent more than 340 companies with
over 8,000 brands that collectively spend more than $100
billion annually in marketing communications and advertising.
Our members market products and services to both consumers
and businesses. More information is available at www.ana.net.
The American Association of Advertising Agencies (AAAA),
founded in 1917, is the national trade association
representing the American advertising agency business. Its
nearly 500 members, comprised of large multinational agencies
and hundreds of small and mid-sized agencies, maintain 2,000
offices throughout the country. Together, AAAA member
advertising agencies account for nearly 80 percent of all
national, regional and local advertising placed by agencies
in newspapers, magazines, radio and television in the United
States. AAAA is dedicated to the preservation of a robust
free market in the communication of commercial and
noncommercial ideas. More information is available at
www.aaaa.org.
As the ``Unifying Voice for Advertising,'' the American
Advertising Federation (AAF), headquartered in Washington,
D.C., with a Western Region office in Newport Beach,
California, is the trade association that represents 50,000
professionals in the advertising industry. AAF's 130
corporate members are advertisers, agencies and media
companies that comprise the nation's leading brands and
corporations. AAF has a national network of 210 ad clubs and
connects the industry with an academic base through its 210
college chapters. More information is available at
www.aaf.org.
____

Dear Senator: I am taking this opportunity to write to urge
your opposition to the Kennedy-DeWine amendment to the FSC/
ETI bill, regarding FDA's authority to regulate the sale of
tobacco products.
As President of the American Wholesale Marketers
Association (AWMA), I represent convenience distributors
nationwide and our distributor members represent more than
$85 billion in US Convenience product sales. Many of our
members are your constituents. On behalf of my AWMA members,
I am writing to let you know of our deep concerns over the
devastating impact this legislation would have upon our
industry.
Tobacco products are among the many goods distributed by
our members and many of these businesses are small, family-
owned operations. The burdensome recordkeeping requirements
and the onerous regulations resulting from this legislation
would work a tremendous hardship on these business owners. In
addition, there are concerns that this legislation could be
``the camel's nose under the tent'' and create a back door
ban on tobacco products through additional restrictions on
the approval, sale, distribution and advertising of these
products. And, the costly layer of regulation to be imposed
by this legislation would cause problems for these family-
owned businesses while providing no real benefit to the
public.
Our AWMA members consider this issue to be of vital
importance and, therefore, I urge you to vote against any
legislation that would provide for FDA regulatory authority
over tobacco products. Thank you in advance for your kind
consideration of these concerns.
Sincerely,

Scott Ramminger,

President,
American Wholesale Marketers Association.
____

Statement by Members of the Health, Education, Labor and Pensions
Committee

Many on the HELP Committee have concerns with the FDA
aspect of the amendment based on the following reasons, ``In
our view it does not represent principles of good government.
It does not produce a strong uniform FDA. For example, we are
concerned about the preemption provisions--we are concerned
about the lack of due process in the reissuance of a Clinton
era tobacco rule--also we are concerned about the claims of
the provisions of the bill.''

Mr. INHOFE. These groups are all concerned about the bill. I echo
their concern. This proposal will greatly increase Federal mandates and
regulations on tobacco that lead to more Government control. I find it
troubling that Congress is willing to grant so much authority to an
executive agency while not allowing us adequate time to evaluate and
possibly amend this legislation.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. DeWINE. I ask unanimous consent to proceed for 5 minutes.
Mr. REID. Mr. President, I ask unanimous consent that whoever is in
opposition have an equal amount of time.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Ohio is recognized.
Mr. DeWINE. Mr. President, as we close debate, I thank Jeff Tites,
Senator Kennedy's very able assistant, who has worked on this
legislation, and I also want to thank my assistants, Abby Kral, Paul
Callogi, Mike Dawson, and Carla Carpenter, who could not be here
because she had a baby. We miss Carla, and we welcome into the world
Ravis Mathew, her son who was just born. We are very glad about that.
Let me respond very briefly to my friend from Oklahoma and his
comments about the FDA bill not having seen the light of day. The
amendment that is in front of us is the DeWine-Kennedy bill, which is
now an amendment. The DeWine-Kennedy bill was actually introduced in
May of this year. It is the only FDA regulation of tobacco bill that
was introduced, so it has been out here for people to look at for a
long time. It was the product of lengthy negotiations between health
groups and others. We went back and forth for a long time. It is not
really dissimilar to other bills that have been talked about before in
other negotiations. It has evolved over a long period of time. It is
the work product of Senator Kennedy and myself, but it is the second
generation or third generation of what others have done.
So the concepts in this bill are not fundamentally new. There is
nothing in this bill that should come as a surprise to anyone.
As I said, this has been on the floor for a long time. People have
had an opportunity to look at it. Interested parties have had a chance
to examine it.
Mr. President, I ask for the yeas and nays. I think we are getting
close to closing this down.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. DeWINE. Mr. President, Senator Kennedy would like to close at
this point. I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I will take a moment to once again thank
Senator DeWine for his strong leadership in our Health, Education,
Labor, and Pensions Committee on this issue. I thank our leaders for
bringing us to where we are. I thank Senator McConnell for the
opportunity to work with him on this issue. And I thank our colleagues
for the strong support we have seen during the course of this
discussion.
This health issue is the most important health issue we are facing on
which we can make serious progress, progress that is almost the
equivalent of conquering cancer--it is that important--because we have
an epidemic of smoking that is affecting the children of this Nation.
It is enormously adverse to their health conditions, and it is a source
of premature death to them as they grow and develop in the future,
causing all kinds of health ailments.
This is a children's issue, a health issue, a family issue because
with this legislation, there are going to be more children who are
going to be able to see their parents when they grow older and there
are more children who will see their grandparents when they grow older.
We have an opportunity to make a major downpayment and major progress
in the quality of health for these children.
I thank those who have spoken in favor of the legislation. Hopefully,
we will get strong support for it when the votes are cast.
Mr. President, I ask unanimous consent that a list of supporters be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

List of Supporters of DeWine-Kennedy FDA Bill

American Academy of Family Physicians, American Academy of
Nurse Practitioners, American Academy of Pediatrics, American
Cancer Society, American College of Cardiology, American
College of Chest Physicians, American College of Physicians,
American College of Preventive Medicine, American Dental
Association, American Heart Association, American Lung
Association, American Medical Association, American Public
Health Association, American Psychological Association,
American School Health Association, American Society of
Addiction Medicine, American Society of Clinical Oncology,
American Thoracic Society, Association of Maternal and Child
Health Programs, Association of Schools of Public Health.
Campaign for Tobacco-Free Kids, Center for Parish Nursing &
Health Ministries, Center for Tobacco Cessation, Children's
Defense Fund, Church of the Brethen Witness/Washington
Office, Church Women United, Evangelical Lutheran Church in
America, General Board of Church and Society of the United
Methodist Church, General Board of Global Ministries The
United Methodist Church, Special Program on Substance Abuse
and Related Violence (SPSARV), Health Ministries Association,
Interreligious Coalition

[[Page S8178]]

on Smoking or Health, Islamic Society of North America,
National Latino Council on Alcohol and Tobacco Prevention,
National Association of County and City Health Officials
(NACCHO), National Association of Local Boards of Health,
National Center for Policy Research for Women & Families,
National Education Association, National Woman's Christian
Temperance Union, National Women's Law Center, Oncology
Nursing Society.
Office of Family and Children's Ministries of Disciples
Home Missions of the Disciples, Praxis Project, Presbyterian
Church (USA), Washington Office, Seventh-day Adventist
Church, Society for Public Health Education, Tobacco Program,
Interfaith Center on Corporate Responsibility, United Church
of Christ.

The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. Mr. President, I have a couple comments. Again, I
compliment my colleagues, Senator Kennedy and Senator DeWine. They have
been steadfast in their advocacy. Senator DeWine is right, he and
Senator Kennedy introduced this a long time ago. If I am correct, it
did not pass out of a committee, it is not on the calendar, and all of
a sudden it appears on the floor.
These are two bills combined, and my biggest objection is with the
buyout. The buyout is $12 billion. How often do we spend $12 billion
around here without having any hearing on it? The buyout did not pass
out of a committee. It did not pass out of the Agriculture Committee.
It certainly was not considered by the Budget Committee.
There is no payment limitation, I say to Senator Grassley. In the
House bill, with the $9.6 billion, it is estimated by one group to be
480 millionaires. Some estimates are 85 percent of the quota owners are
not farmers. I do not know how many of those will be made millionaires.
The Senate bill we are going to vote on does not even eliminate the
tobacco program. A lot of people are thinking we will spend this money,
we will buy the quotas back, and then be done with it. No, there will
be a Federal board set up by the Secretary. The Secretary will
establish a permanent advisory board for the purpose of setting what
kind of tobacco shall be in the Acreage Limitation Program, I tell my
colleague from Nevada, where they limit acres, make recommendations on
acres.
The Secretary, with the Tobacco Quality Board, shall establish and
maintain the Acreage Limitation Program for each crop, each kind of
tobacco. If we have an acreage limitation program, that is a price
support program. That is a continuation of the tobacco program.
So we are going to throw away $12 billion and maybe benefit one
tobacco company versus all the other tobacco companies, spend a whole
lot more money, have another 100 some-odd pages of regulations, some of
which were so intrusive--I have not had a chance to review these
regulations in detail, but in past years, some of these regulations
dealt with convenience stores. If a convenience store did not check IDs
of people up to age 21 or age 25, they could be penalized and fined and
successively with higher penalties. If they did not check IDs three or
four times of somebody who is 24 years old--they are military and
obviously old enough to smoke--if they did not check their ID, the
fines could be in the thousands of dollars.
That was in previous regulations. I am not sure if it is in these
regulations because I have not had enough time to decide. I know there
is a blank check for the Secretary to outlaw tobacco if he so desires,
to ban advertising if he so desires.
I don't like tobacco consumption. I don't want people to smoke. If
Congress wants to ban tobacco, let's do it. Let Congress do it. Let the
elected officials do it, not the Secretary of HHS. These regulations
are too broad. I know Senator Gregg had a proposal that was not quite
as aggressive. I would like to vote on it. I would like to consider the
two. We don't even have the option. The option is take these
regulations, 155 pages--and my guess is most were promulgated by the
Clinton administration which we rejected earlier--and then let's add a
$12 billion buyout program that almost guarantees we will have a buyout
program that comes out of conference on the FSC/ETI bill.

My final comment is, two wrongs do not make a right. The House was
wrong to put in a tobacco buyout in the FSC/ETI bill. Now we are going
to double that wrong and almost ensure it is going to come back from
conference with a multibillion-dollar buyout, where some people are
going to make millions of dollars. We are going to pay people a whole
lot of money and maybe even continue the program. That is absurd. That
is a waste of money. That is paying people for the privilege--frankly,
if they had a quota, the Government gave them a quota; they had a
special benefit over all other landowners in the United States.
Oklahoma did not have a quota. We could not grow tobacco if we wanted
to. We could not get the higher prices. Now we give a special reward to
people who have a quota. We buy them out, and we are going to have a
price support program in addition if we pass the Senate language.
That is bad legislation. I hope our colleagues will recognize if they
vote for this today and if it comes back from conference in any way
resembling this, they are going to be embarrassed because a year or so
from now, somebody is going to do a report saying XYZ tobacco quota
owner--and there are several in the District of Columbia. I don't know
how much tobacco is grown in the District of Columbia, but quotaholders
in the District of Columbia get millions of dollars. They are going to
be reading about this and be upset, and they are going to say:
Congress, how could you do this? Then they are going to go back and
say: Congress didn't debate this much.
I compliment my colleague from Ohio. Most of the debate has been on
the FDA regulations, not the buyout.
I hope my colleagues reject the amendment.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, this has been a very good debate. In
closing the debate, I thank all those who have participated. I ask my
colleagues to vote yes. Ultimately, this is a question about common
sense, having the FDA regulate this product, and it is a question of
saving lives. That is what we will do.
I thank the Chair, and I yield the floor.
Mr. President, 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. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________