[Congressional Record Volume 155, Number 83 (Thursday, June 4, 2009)]
[Senate]
[Pages S6140-S6150]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         THE FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT

  Mr. LIEBERMAN. Madam President, I rise today to describe and explain 
my amendment to H.R. 1256, the Family Smoking Prevention and Tobacco 
Control Act. The central purpose of this legislation is to give the 
Food and Drug Administration the authority to regulate tobacco 
products. I support the bill's goals and am an original cosponsor of 
the Senate counterpart, S. 982.
  Because the regulation of tobacco products under H.R. 1256 passes 
muster under budget rules only because of the increase in tax revenues 
generated by one federal employee retirement program, I want to make 
sure that the overall retirement system treats federal employees 
fairly. To accomplish this, I and colleagues on the Homeland Security 
and Governmental Affairs Committee--Senators Collins, Akaka, and 
Voinovich--have developed this bipartisan amendment to make a number of 
much-needed corrections and improvements to the federal employee 
retirement program. In addition to Senators Collins, Akaka, and 
Voinovich, I would also like to thank Senators Murkowski, Mikulski, 
Inouye, and Begich, who have all asked to be included as cosponsors of 
this amendment.
  The central purpose of our amendment is to bring justice to federal 
employees who--because of quirks in the law, errors, and oversight--
have lost out on retirement benefits for which they would otherwise be 
eligible. Many of the provisions of this amendment have the very strong 
support of federal employee unions and organizations of managers.
  Our amendment would add back into the pending substitute amendment 
several of the reforms to the federal retirement system that were 
already passed by the House in its version of H.R. 1256. In addition, 
the amendment includes two very significant reforms to the federal 
employee pay and retirement systems that our Homeland Security and 
Governmental Affairs Committee recently approved by voice vote without 
dissent.
  I have prepared a complete written summary of these provisions, and I 
will ask consent that it be printed in the record. Now I want to focus 
on those that are most significant.
  One of the most important reforms in our amendment would lift 
retirement penalties now experienced by long-time federal employees 
under the Civil Service Retirement System who want to switch to part-
time work at the end of their careers. The amount of an employee's 
annuity is based, in part, on the highest rate of salary that the 
employee received over a 3-year period. Because an employee's salary 
ordinarily reaches its highest rate at the end of the employee's 
career, employees count on that end-of-career work period to help 
determine the amount of annuity. However, as the law now stands, 
employees who have a substantial period of service before April 1986, 
and who now switch to part-time work at the end of their career, get 
part of their annuity determined on the basis of the amount of salary 
received, which, for the part-time work, is only a fraction of the rate 
of salary received. With retirement credit for part-time work so 
reduced, many employees have little incentive to stay on part-time, and 
simply opt to retire altogether.
  Our amendment would fix this problem by using the rate of salary, not 
the amount of salary, for determining the entire amount of the 
employee's annuity. This would remove the disincentive that now 
discourages federal employees near retirement from working on a part-
time basis while phasing into retirement.
  Our amendment is not only fair to the employee, but also good for the 
government, by helping to retain valuable employees who wish to phase 
down their work but to continue offering their talent and experience to 
serve the government and to train future leaders. This is one of the 
provisions in our amendment that was passed by the House as part of its 
version of H.R. 1256, and this provision is also very similar to a bill 
introduced by Senator Voinovich, S. 469, which was unanimously approved 
by the Homeland Security and Governmental Affairs Committee late last 
month by voice vote.
  A second provision in our amendment would correct an injustice in 
calculating the retirement dates and benefits for nonjudicial employees 
of the DC courts, the Court Services and Offender Supervision Agency 
and the DC

[[Page S6141]]

Public Defender Service. Legislation in 1997 and 1998 converted these 
individuals from being employees of non-federal agencies into being 
federal employees. The converted employees were brought under the 
Federal Employees Retirement System, which essentially began 
calculating their eligibility for retirement and the amount of their 
benefits anew, without recognition of their previous service.
  Some employees of these three agencies could have retired years ago 
had they received credit for their years of service with the DC 
government. Instead, they are still serving to make up for time lost 
when they were transferred into the federal service. One provision in 
our amendment would simply require that the time served by these 
employees before their date of transfer from DC to federal service will 
count towards their overall federal retirement eligibility as 
``creditable service.'' This is a fair and just correction.
  Another important provision in our amendment will equalize the 
treatment of participants in the old Civil Service Retirement System 
and participants in the newer Federal Employees' Retirement System. 
This provision would allow FERS participants to apply their unused sick 
leave in determining their length of service for the purposes of 
computing the amount of retirement benefit--something Civil Service 
Retirement System participants are already allowed to do. This reform 
would not only bring equity to all federal employees participating in 
the two retirement plans. It also would help reduce the inevitable 
absenteeism that results from the current ``use it or lose it'' policy 
for sick leave under the FERS program.
  Our amendment also provides relief to approximately 170 U.S. Secret 
Service agents and officers who have lost out on tens of thousands of 
dollars in retirement benefits because they did not receive what they 
were promised when hired. This provision would restore this group of 
agents and officers to the retirement system they were promised and 
paid into over 22 years ago.
  Historically, Secret Service nonuniformed agents, like other federal 
employees, joined the Federal Civil Service Retirement System, whereas 
uniformed officers of the Secret Service were covered under the 
District of Columbia Police and Fire Retirement Plan, because their 
division had originally begun as an adjunct to the DC police force. 
Nonuniformed agents who accrued 10 years of protection time could also 
transfer into the DC plan, and many did so, because the DC plan is more 
generous and more flexible than the federal system.
  New-hires to the Secret Service continued to be promised that they 
could retire under the DC Metro plan up until 1987. In that year, when 
the Federal Employee Retirement System was created to replace the older 
CSRS, the law did not permit Secret Service agents hired between the 
years of 1984 and 1987 to opt into the DC plan, but instead required 
them to be covered by the new federal retirement system.
  We ask a tremendous amount from the men and women of the Secret 
Service, many of whom have some of the most challenging jobs within the 
federal government. It is not too much to expect that the federal 
government abide by its promises in return. Accordingly, this amendment 
will enable the affected Secret Service agents to convert to the DC 
Metro plan if they so choose.
  Finally, our amendment incorporates two additional bipartisan reforms 
of the federal pay and benefits system that our Homeland Security and 
Governmental Affairs Committee recently approved without dissent.
  First, the amendment incorporates a bill introduced as S. 507 by 
Senator Akaka, and cosponsored by Senators Murkowski, Inouye, and 
Begich, called the ``Non-Foreign Area Retirement Equity Assurance Act 
of 2009.'' This legislation will bring federal employees in Hawaii, 
Alaska, and other ``nonforeign'' U.S. territories in line with federal 
employees in the lower 48 states with regard to pay and pension. 
Federal employees in the lower 48 states receive locality pay, which is 
taxed and counts towards employees' pensions Federal employees in 
nonforeign areas instead receive a nonforeign cost of living allowance, 
which is neither taxed nor counted towards pensions.
  This puts nonforeign area employees at a substantial disadvantage 
when it comes time to retire. To correct this situation, the 
legislation would move federal employees in nonforeign areas from the 
nonforeign COLA system to locality pay that would both be taxed and 
count toward pensions. Locality pay would be phased in over a 3-year 
period and the nonforeign COLA would be phased out. Although all future 
employees would be covered by the act, existing employees in nonforeign 
areas could choose to continue receiving the nonforeign COLA rather 
than being transitioned to locality pay.
  We have also included in this amendment a bill, S. 629, which was 
introduced by Senator Collins and cosponsored by Senators Voinovich, 
Kohl, and McCaskill, named the ``Part-Time Reemployment of Annuitants 
Act of 2009.''
  This legislation would authorize Federal agencies to reemploy retired 
Federal employees, under certain limited conditions, without offset of 
annuity against salary. The purpose is to help agencies weather the 
upcoming wave of retirements by hiring back retirees on a limited 
basis.
  Under present law, most annuitants who return to work have the amount 
of their pension offset against their salary. Congress has enacted 
certain limited exceptions to this general rule, and our amendment 
would grant all agencies the power to hire annuitants at full salary 
and annuity if certain conditions are met.
  The bill includes several limits intended to ensure that the 
authority is used for the intended purpose, to fill particular staffing 
gaps and needs. A reemployed individual may not work more than a 
maximum of 520 hours--i.e., 65 days--in the first 6 months after 
retirement, or more than 1,040 hours--i.e., 130 days--in any 12-month 
period, or exceed a total of 3,120 hours--i.e., 390 days--for any one 
individual. These limits represent working at about half time.
  Moreover, reemployed annuitants at an agency may not comprise more 
than 2.5 percent of the agency's total workforce, and may not exceed 1 
percent of the agency's total workforce unless the agency head submits 
a written justification to OPM and Congress. The legislation would 
sunset after 5 years.
  Federal employees, wherever they work, are a dedicated group of 
people who are asked to make a number of sacrifices for the sake of 
their country.
  Those in the Secret Service, obviously, sacrifice more, sometimes 
with their lives. Our amendment will update and bring retirement parity 
and fairness to many federal employees. This amendment will provide a 
measure of justice for hundreds of thousands of public servants. I urge 
my colleagues to support this amendment.
  Madam President, to reiterate, I rise today to describe and explain 
and speak on behalf of the bipartisan amendment to this underlying bill 
I am proud to introduce, along with Senator Collins, Senator Akaka, and 
Senator Voinovich. The central purpose of the legislation before us, of 
course, is to give the Food and Drug Administration the authority to 
regulate tobacco products. I support the aims of the bill strongly and 
I am proud to be an original cosponsor of the Senate counterpart, S. 
982.
  Because the regulation of tobacco products is estimated to result in 
some reduction in tobacco excise taxes, the bill before us, H.R. 1256, 
passes muster under budget rules only because of an increase in 
revenues generated by a change that is made in the proposal in the 
Federal Employee Retirement System. The aim of Senator Collins, Senator 
Akaka, Senator Voinovich, and myself, in proposing this amendment is to 
make sure that while that revenue-raising change occurs, that the 
overall retirement system treats Federal employees as fairly as 
possible. So we have developed this bipartisan amendment to make a 
number of corrections and improvements in the existing Federal employee 
program.
  In addition to the Senators I have mentioned, I also thank Senators 
Murkowski, Mikulski, Inouye, and Begich, who have also become 
cosponsors of this amendment.
  The central purpose of the amendment is to bring justice to Federal 
employees who, because of quirks in the law--frankly of errors or 
oversights--have lost out on retirement benefits for which they would 
otherwise be eligible.

[[Page S6142]]

Many of the provisions of this amendment have the very strong support 
of the groups representing Federal employees and managers as well. Our 
amendment would add back into the pending substitute amendment several 
of the reforms to the Federal retirement system that actually were 
already passed by the House in its version of H.R. 1256. In addition, 
the amendment includes two very significant reforms to the Federal 
employee pay and retirement systems that our Homeland Security and 
Governmental Affairs Committee recently approved by voice vote without 
dissent.
  I should state here for the record that the committee now has very 
broad jurisdiction which has been added to, in recent years, when we 
became the Homeland Security Committee, but in the original 
governmental affairs jurisdiction of the committee we not only have 
general oversight of the activities of government, of the Federal 
Government, this is the committee responsible for the civil service, 
for those who work every day to enable our Federal Government to work 
for the citizens of our country.
  I have a complete written summary of the provisions that are in this 
amendment. I will offer it a little bit later, but now I want to focus 
on a few of the most significant changes.
  One of the most important reforms in the amendment would lift 
retirement penalties now experienced by long-time Federal employees 
under the Civil Service Retirement System when they want to switch to 
part-time work at the end of their careers. It is very important, as we 
face a time of increasing retirement from Federal service and 
increasing demand on Federal service. The amount of an employee's 
annuity is based in part on the highest rate of salary an employee 
received over a 3-year period. Although an employee's salary naturally 
reaches its highest rate at the end of an employee's career, employees 
count on that end-of-career work period to determine the amount of 
annuity they will live on in retirement. However, as the law now 
stands, employees who have a substantial period of service before April 
1986, and who now switch to part-time work at the end of their career, 
get part of their annuity determined on the basis of the amount of 
salary received, which, for part-time work, is only a fraction of the 
rate of salary received.
  With retirement credit for part-time work so reduced, a lot of 
employees have very little incentive to stay on part time when we need 
them to do so, and they will, therefore, retire altogether.
  Our amendment would fix this problem by using the rate of salary, not 
the amount of salary, for determining the entire amount of the 
employee's annuity. That would remove the disincentive to continue to 
serve that now exists.
  A second provision in our amendment would correct an injustice in 
calculating the retirement dates and benefits for nonjudicial employees 
of the D.C. courts, the Court Services and Offender Supervision Agency, 
and D.C. Public Defender Service. These are fair and just corrections.
  Another important provision in the amendment would equalize the 
treatment of participants in the Civil Service Retirement System with 
treatment of participants in the newer Federal Employees Retirement 
System. To the average American, this vocabulary is probably not too 
comprehensible. To the millions of Federal employees, the difference 
between the CSRS and FERS is quite well understood and significant. The 
provision that we have in this amendment would allow for its 
participants to apply their unused sick leave in determining their 
length of service for the purposes of computing the amount of 
retirement benefits--something Civil Service Retirement System 
participants are already allowed to do. So that is an inequity this 
amendment would eliminate.
  The amendment also provides relief to approximately 170 U.S. Secret 
Service agents and officers who have lost out on tens of thousands of 
dollars in retirement benefits because they did not receive what they 
were promised when hired. This provision would restore this small group 
of agents and officers to the retirement system that they were promised 
and paid into over 22 years ago. We obviously ask so much of the men 
and women of the Secret Service that we should treat them fairly.
  Finally, our amendment incorporates those two additional bipartisan 
reforms of the Federal Pay and Benefit System that our Homeland 
Security and Governmental Affairs Committee recently approved without 
dissent.
  First, the amendment incorporates a bill introduced as S. 507 by 
Senator Akaka, who I know is on the floor and I believe may speak on 
this when I am done, cosponsored by Senators Murkowski, Inouye, and 
Begich, called the Non-Foreign Area Retirement Equity Assurance Act of 
2009. These obviously are colleagues from Alaska and Hawaii, so it has 
unique relevance there. The legislation would bring Federal employees 
in Hawaii and Alaska and other ``nonforeign'' U.S. territories in line 
with Federal employees in the lower 48 States, as we call them, with 
regard to pay and pension. Federal employees in the lower 48 receive 
locality pay, which is taxed and counts toward employee pensions. 
Federal employees in nonforeign areas, such as Alaska and Hawaii, 
instead receive a nonforeign cost of living allowance, which is neither 
taxed nor counted toward pensions.
  This puts Federal workers in places such as Hawaii and Alaska at a 
substantial disadvantage when it comes to retirement. To correct this 
situation, this legislation would remove Federal employees in 
nonforeign areas--Alaska, Hawaii, et cetera--from the nonforeign COLA 
system to locality pay that would both be taxed and would count toward 
pensions.
  We have also included in this amendment a bill, S. 629, which was 
introduced by Senator Collins and cosponsored by Senators Voinovich, 
Kohl, and McCaskill, which is called the Part-Time Reemployment of 
Annuitants Act of 2009. This is relative to something I talked about 
earlier. It would authorize Federal agencies to reemploy retired 
Federal employees under certain limited conditions without offset of 
annuity against salary. In other words, we have some retired employees 
who, after a long period of service, have built up specialized skills 
we need and will need more and more in the years ahead, as a generation 
retires from Federal service. Yet now there is an economic disincentive 
for those retired employees to come back part time or for limited 
periods of time to serve the American people.
  Under present law, most annuitants who return to work have the amount 
of their pension offset against their salary. Congress has enacted 
certain limited exceptions to this general rule. Our amendment would 
grant all agencies the power to hire annuitants at full salary, while 
maintaining their full retirement benefit, if certain conditions are 
met.
  The bill includes several limits to ensure that this authority is 
used for the intended purpose, which is to fill particular staffing 
gaps and needs and not used to frustrate the desire of a new generation 
of Federal workers to come in. A reemployed individual may not work 
more than a maximum of 520 hours, 65 days, in the first 6 months after 
retirement or more than 1,040 hours, 130 days, in any 12-month period 
or exceed a total of 390 days for any one individual for the entirety 
of their retirement.
  Each of these proposals that are part of this amendment treat Federal 
employees fairly. They correct inequities; in some cases, oversights. 
The fact is, in many countries of the world, developed countries 
particularly, one of the most respected professions, lines of work one 
can go into is civil service, what we call the civil service. We are 
not where we should be in this country. These are the people who make 
the Federal Government work. We should treat them fairly and, in this 
unique circumstance, when we are taking some more out as a result of a 
change in the Federal retirement system to offset the loss of excise 
taxes on tobacco, there is some money left over which we can use to 
correct these inequities on Federal employees. That is why I am so 
pleased this is a bipartisan amendment.
  I hope, when it comes to a vote, it will receive overwhelming 
bipartisan support.
  I thank Senator Akaka, who is an extraordinary Senator in general but 
has been a wonderful, productive, contributing member of this committee 
and a great advocate for the most progressive

[[Page S6143]]

human capital management; that is, the best management of our Federal 
workforce.
  The ACTING PRESIDENT pro tempore. The Senator from Hawaii.
  Mr. AKAKA. Madam President, I ask unanimous consent to speak as in 
morning business for 10 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Madam President, I thank Chairman Lieberman for his leadership. He 
has been doing a grand job in moving legislation on issues of homeland 
security. I rise today to support the Family Smoking Prevention and 
Tobacco Control Act. Tobacco products kill approximately 400,000 people 
each year. The FDA must be provided with the authority to regulate 
deadly tobacco products, limit advertising, and further restrict 
children's access to tobacco.
  I commend my friend from Massachusetts, Senator Kennedy, for his 
long-term commitment to advancing this vital public health legislation, 
and I thank my friend from Connecticut, Senator Dodd, for managing this 
bill. I am proud to support their efforts.
  Included in the bill are a number of Federal retirement provisions 
that go a long way to support retirement security and provide more 
options for Federal employees.
  The provisions in the managers' amendment would make four changes to 
enhance the Thrift Savings Plan. Federal employees would be 
automatically enrolled in the TSP with the option of opting out of the 
program. Federal employees also will be eligible for immediate matching 
TSP contributions from their employing agency. In addition, the Thrift 
Savings Board will have the option to create a mutual fund window 
during which employees will be able to select mutual funds that are 
appropriate for their investment needs. Finally, employees will be 
allowed to invest in a Roth IRA through the TSP.
  As chairman of the Subcommittee on Oversight of Government 
Management, the Federal Workforce, and the District of Columbia, I also 
am proud to support my other good friend from Connecticut, Senator 
Lieberman, in offering an amendment to support additional retirement 
security and equity provisions for the Federal workforce.
  Most important to my home State of Hawaii, the amendment provides 
needed retirement equity to Federal employees in Hawaii, Alaska, and 
the territories. Nearly 20,000 Federal employees in Hawaii, and another 
30,000 Federal employees in Alaska and the territories, currently 
receive a cost of living allowance, which is not taxed and does not 
count for retirement purposes.
  Because of this, workers in these areas retire with significantly 
lower annuities than their counterparts in the 48 States and DC.
  COLA rates are scheduled to go down later this year along with the 
pay of these nearly 50,000 Federal employees if we do not provide this 
fix.
  In 2007, the Office of Personnel Management offered a proposal to 
correct this retirement inequity. After soliciting input from all 
affected employees, I introduced the Non-Foreign Area Retirement Equity 
Assurance Act. The bill passed the Senate by unanimous consent in 
October 2008. Unfortunately, the House did not have time to consider 
the bill before adjournment.
  I reintroduced this as S. 507, which is included in this amendment, 
with Senators Murkowski, Inouye, and Begich. It is nearly identical to 
the bill that passed the Senate last year.
  This is a bipartisan effort to transition employees in Hawaii, 
Alaska, and the territories to the same locality pay system used in the 
rest of the United States, while protecting employees' take-home pay in 
the process. In this current economic climate we must be careful not to 
reduce employees' pay.
  The measure passed unanimously through committee on April 1. OPM 
recently sent Congress a letter asking for prompt, favorable action on 
this measure.
  This is one of the most important issues facing Federal workers in 
Hawaii, Alaska, and the territories. I urge my colleagues to support 
this change.
  One of the other provisions in the amendment corrects how employees' 
annuities are calculated for part-time service under the Civil Service 
Retirement System. This provision treats Federal employees under CSRS 
the same way they are treated under the newer Federal Employee 
Retirement System. Eliminating this unnecessary disparity is a matter 
of fairness and correction.
  Similarly, this amendment includes a provision to treat unused sick 
leave the same under the new retirement system as under the old system.
  The Congressional Research Service recently found that FERS employees 
within 2 years of retirement eligibility used 25 percent more sick 
leave than CSRS employees within 2 years of retirement. OPM also found 
that the disparity in sick leave usage costs the Federal Government 
approximately $68 million in productivity each year.
  This solution was proposed by Federal managers who wanted additional 
tools to build a more efficient and productive workplace and to provide 
employees with an incentive Congress should have retained years ago.
  This amendment also will make good on the recruitment promise made to 
a small group of Secret Service agents. Approximately 180 Secret 
Service officers, hired during 1984 through 1986, were promised access 
to the DC retirement plan. This amendment would provide it.
  The majority of these retirement reform provisions have the 
endorsement of all the major Federal employee groups including: the 
American Federation of Government Employees, the National Treasury 
Employees Union, the National Active and Retired Federal Employee 
Association, the Senior Executives Association, the Federal Managers 
Association, the Government Managers Coalition, and the list goes on.
  I strongly encourage my colleagues to support this bill and the 
Federal retirement reform provisions.
  I thank Chairman Lieberman for his support and his leadership.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. HAGAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. HAGAN. Madam President, I ask unanimous conent to speak in 
morning business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. HAGAN. Thank you.
  Madam President, I rise in opposition to the Family Smoking 
Prevention and Tobacco Control Act that is before us. While the bill 
purports to reduce smoking among teenagers and to regulate tobacco 
products, it goes far beyond these two goals.
  This broad, sweeping legislation will further devastate the economy 
of North Carolina and the lives of many of my constituents. In my 
State, we have 12,000 tobacco farmers and 65,700 jobs tied to this 
industry. It also generates close to $600 million annually in farm 
income. And the economic impact of tobacco in North Carolina is $7 
billion. We know we are in the midst of an economic crisis, and the 
bill before us today will further impact the economy in North Carolina 
by putting thousands of people out of work and exacerbating the already 
high levels of unemployment throughout our State.
  Many aspects of the bill will make it impossible for tobacco 
manufacturers to earn a living. For example, the labeling requirements 
in the bill will present a burdensome and costly obstacle for many of 
the smaller tobacco manufacturers, as will the marketing and 
advertising restrictions in this bill.
  But I am also concerned that the bill will allow the FDA to develop 
standards for tobacco products for which technology now may not exist. 
For example, the bill requires the FDA to establish standards for the 
reduction or elimination of certain components, including smoke 
components. The problem is that many of these components are naturally 
found in the tobacco leaf and technology may not be available to 
extract these natural--they are not artificial--components. Allowing 
the FDA to develop unattainable standards will put farmers in an 
outright impossible position--again, hurting generation-old families 
and businesses in North Carolina.
  But let me make it clear that the bill is going to make it more 
difficult for

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domestic tobacco manufacturers to compete with foreign tobacco 
manufacturers who are not going to be forced by the FDA to abide by the 
same standards as our domestic manufacturers.
  For example, the bill requires that tobacco products be tested. I 
want to offer an amendment that is going to require that this testing 
be done in a laboratory in the United States because it is hard to 
fathom that the FDA is going to be allowed into foreign manufacturing 
facilities.
  I believe we need to be cognizant of the burdens these new standards 
will impose on our domestic tobacco manufacturers in terms of greater 
costs to implement the reporting, testing, and labeling requirements. 
And we have to ensure that these costs are not going to put our 
domestic manufacturers at a total disadvantage with foreign 
competitors.
  The bottom line is that in North Carolina, people are working hard to 
make a living. Some 65,000 work in this industry, and 12,000 work on 
our wonderful tobacco farms. In this economic downturn, I do not think 
now is the time to pass a bill that is going to disproportionately 
impact so many people in my State.
  I have three amendments I wish to discuss at this point. I understand 
the majority leader is working on an agreement with the Republican 
leader so that these amendments will be called up at a later date.
  The first amendment I wish to discuss is amendment No. 1249, 
requiring that the technology exist before the FDA can develop 
standards. This is an amendment I wish to have serious consideration 
given.
  This amendment, No. 1249, simply clarifies that the FDA cannot 
establish technological standards until they have determined that the 
technology is available to meet that particular standard.
  The bill does not limit the FDA's authority to reduce or ban 
compounds found naturally in tobacco leaf. Rather, this bill gives the 
FDA the authority to require the removal of harmful components from 
tobacco products, including components that are native to the tobacco 
leaf. Because of this, many of the new requirements will only be 
achievable through dramatic changes in tobacco farming operations and 
could affect the growing and curing of the actual tobacco leaf. As 
such, this bill allows the FDA to establish standards on tobacco 
products that may not be achievable with the technology that exists. 
While the bill does include language that would require the FDA to 
consider technical achievability, it does not go far enough to ensure 
that the technology does, in fact, exist.
  My amendment would require the FDA to actually establish that the 
technology is available before it sets the standards. This approach is 
similar to the standards the EPA must meet to implement environmental 
laws. I believe if we are going to put 65,700 jobs on the line in North 
Carolina, we certainly have to ensure that the technology is available 
to give those people and employers and employees a chance to adhere to 
the FDA standards.
  I urge support of this amendment.
  Madam President, I also wish to discuss amendment No. 1253, 
disallowing FDA regulation of the actual tobacco farmer.
  This amendment would clarify that the FDA does not have the authority 
to regulate the production of tobacco or a farmer who produces tobacco, 
either directly or indirectly. The underlying bill does state that the 
FDA does not have authority over the tobacco leaf that is not in the 
possession of the manufacturer and that the FDA does not have the 
authority to enter onto a farm owned by a producer of tobacco. But the 
bill provides an exception to allow the FDA to regulate activities by a 
manufacturer that affects the actual production. This is a backdoor way 
of getting at the tobacco grower because nearly every activity by the 
tobacco manufacturer affects the production of the tobacco leaf.
  Further, the underlying bill would allow the FDA to indirectly place 
mandates on a tobacco producer by placing mandates on a manufacturer. 
It is unrealistic to expect that mandating standards on tobacco 
manufacturers will not trickle down to drastically impact the actual 
farmer and their operations. I believe the exception in this bill is 
too broad.
  My amendment drops this exception. This amendment is critical to 
ensure that as new standards and regulations are imposed on tobacco 
manufacturers, farmers and their families will be protected.
  Again, there are 12,000 tobacco farmers in North Carolina who are on 
the line. Their livelihoods are on the line. We need to be sure they 
are able to have a playing field they can work with.
  I urge support of this amendment.
  Madam President, the third amendment I want to discuss is amendment 
No. 1252, which has to do with testing in U.S. laboratories.
  This bill before us today requires foreign-grown tobacco to meet the 
same standards applied to domestically grown tobacco. But the problem 
is, the bill does not contain language suggesting how the FDA is going 
to enforce this. I sincerely doubt we will find any foreign tobacco 
manufacturers willing to invite the FDA into their companies to inspect 
and test their tobacco products. And I doubt we will find many foreign 
testing facilities that are willing to submit to U.S. standards.
  My amendment addresses this concern by requiring, simply, that any 
testing of tobacco products required in this bill be conducted in a 
U.S. laboratory. Undoubtedly, the FDA is going to have a difficult time 
regulating products coming in from overseas. We do not have to look 
very far into FDA's past to figure that out. The solution to this 
problem is to require tobacco products intended for domestic 
consumption to be, simply, tested in our country.
  This requirement would help ensure that domestic tobacco 
manufacturers are not put at a competitive disadvantage to foreign 
manufacturers, and that foreign manufacturers do not get preferential 
treatment because domestic manufacturers would be subject to stricter 
testing requirements. It would also help to ensure that foreign 
manufacturers are not simply dumping unsafe products into the U.S. 
market.
  In this time of economic uncertainty, I think we have to do what we 
can to protect and create American jobs. Requiring tobacco products to 
be tested in the United States would certainly help keep those jobs 
here at home.
  Once again, I urge support and consideration of this amendment.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Kaufman). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BURR. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURR. Mr. President, I understand we are in morning business.
  The PRESIDING OFFICER. We are.
  Mr. BURR. Mr. President, I ask unanimous consent to speak for up to 
30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURR. I thank the Presiding Officer.
  Mr. President, later this morning, today, we will go back on the 
tobacco FDA bill. As one who has tried to educate Members on why this 
is a flawed bill, let me state I am fighting an uphill battle. I have 
been all week.
  I wish to thank my friends and colleagues who have come to the floor 
over the last days to support their belief that this is misguided, not 
the regulation, but the fact that we are concentrating this in the Food 
and Drug Administration, an agency that has the trust and confidence of 
the American people that the gold standard of proving safety and 
efficacy for all drugs, devices, biologics, and cosmetics, and food 
safety is their No. 1 mission. But my colleagues know this has been an 
uphill fight, too. I have tried over the course of those days to 
highlight for the American public why it is bad policy. I have 
highlighted portions of the bill that I thought were flawed. I haven't 
come out and said this is the wrong thing, even though, let me remind 
my colleagues, this is the current flowchart for the Federal regulation 
of tobacco before we do anything. So for Members who come and say this 
industry is underregulated, let me remind them it is the Department of 
Transportation, the Department of the Treasury, the Department of 
Commerce, the

[[Page S6145]]

Department of Justice, the Office of the President, the Department of 
Health and Human Services, the Department of Education, the Department 
of Labor, General Services Administration, the Department of Veterans 
Affairs, the Federal Trade Commission, the Department of Agriculture, 
Environmental Protection, U.S. Postal, and the Department of Defense. 
Now we are going to take all of those areas of Federal regulation and 
we are going to condense them all into the Food and Drug 
Administration, which has a mission statement of proving the safety and 
efficacy of every product over which they have jurisdiction.

  Twenty-five percent of the U.S. economy is currently regulated by the 
Food and Drug Administration. Americans go to bed at night after taking 
pills prescribed by a doctor and filled by a pharmacist with the 
comfort of knowing they have been approved to be safe and effective. 
Through this bill, we are going to dump on the Food and Drug 
Administration a product that is not safe and it is certainly not 
effective.
  I have tried to point out the flaws. Heck, I have tried to point out 
the good things in the bill. I haven't been one-sided on it. But every 
time one of my colleagues from the other side of the aisle has come to 
speak, we have either seen charts that are 10 years old or data that is 
10 years old. We have seen products that they have painted in a light 
that didn't even exist 10 years ago. I haven't heard a single question 
I have asked in this debate answered by the other side or even their 
opinion of what is wrong with the substitute. It has all been rhetoric.
  I wish to share a story with my colleagues. This story is a news 
report. It was a report CNN ran on a product that is new to the market. 
It is called Camel Orbs. It is not a cigarette, and it is really not 
smokeless tobacco; it is a dissolvable tablet.
  As I pointed out to my colleagues yesterday when I showed them the 
chart for continuum of risk, nonfiltered cigarettes have a 100-percent 
risk factor and filtered cigarettes have a 95-percent risk factor. As 
you introduce new products into the marketplace that allow individuals 
to move from cigarettes to other products, you reduce the risk. You 
reduce the risk of death and disease, and that is one of the three 
objectives of tobacco legislation. Youth usage should go down. Death 
and disease should be reduced from the standpoint of risk.
  Let me come all the way over here on the chart to dissolvable 
tobacco. The risk is 2 percent. To bring these to market is to reduce 
the risk from 100 percent to 2 percent--98 percent better.
  CNN ran this article on Orbs. It is a smokeless product, but I will 
get into that in a few minutes. For now, what you need to know is Orbs 
falls under the same age restrictions all tobacco products do. That 
means it contains no cartoon images. It must be shelved behind the 
counter where it is out of reach of children. Heck, it is out of reach 
of adults. They have to physically ask for the product. By the way, you 
must show photo ID to buy tobacco products today. Let me say that 
again. You must show a photo ID to purchase tobacco products.
  When CNN did their story, take a guess on the angle they took. They 
labeled it as candy--candy--even though it is not candy flavored. They 
said it was candy. They didn't mention death or disease. You would 
think a story on tobacco would lead with that. I haven't been shy to 
come to the floor and say that is the result of tobacco usage. But they 
didn't even go to death and disease. No, they said it was candy. That 
is how they labeled it.
  Even though they mischaracterized the product and took people down 
the path they wanted to go, that wasn't the bad news of this story. The 
bad part of the story was they took tins of the product and they 
actually placed them in the candy aisle at the convenience store, right 
there beside the Reese's Cups and the chewing gum. Then they took 
footage of a young boy, I think, reaching over and picking up one of 
the Camel Orbs, even though this is highly illegal. Even though the 
convenience store could be prosecuted, and therefore they don't put 
tobacco products in the candy section, still CNN wanted to make their 
point. What a better way to make the point than to stage what the 
picture was. Let me say that again. What a better way to make the point 
than to stage that every retailer in the world out there is putting 
Orbs, a tobacco product, in its candy section. They portrayed Reynolds 
America as being deceptive and luring children. No candy. It is not 
going in the candy section. It is in the tobacco section where 
smokeless and stick smoke products are.
  That is why it is so difficult. That is why the job I am on a quest 
for is an uphill battle. It is because nobody on that side wants to 
come down and talk about the policy.
  The bill we are considering was written 10 years ago. No wonder we 
are using 10-year-old charts and 10-year-old statistics. The truth is, 
if you look at the statistics today, if you want to address death and 
disease, then accept the fact that there has to be an opportunity to 
reduce the risk. But what my colleagues need to know is that H.R. 1256 
gives the FDA full jurisdiction over tobacco products, and it takes 
this category right here and it locks it in. It cements it because it 
grandfathers FDA from ever doing anything on the existing products that 
are in the marketplace: filtered cigarettes and nonfiltered cigarettes. 
FDA is forbidden from changing anything. The products that were sold 
continue to be sold. No new products can be sold.
  They say there is a pathway for these products to come to market. It 
is a three-pronged test they have to meet. I won't dwell on the first 
two prongs. Let me dwell on the third one. The third one is this: You 
have to prove that people who don't use tobacco products aren't likely, 
when this new product is introduced, to actually use this product. But 
the way the bill is crafted says this: You can't communicate with the 
public unless you have an approved product. So I ask my colleagues, if 
you can't communicate with the American people to find out whether they 
are likely to buy a product that is new to the market until that 
product is actually approved, then how can you fill out an application 
and make the claim that the American people aren't likely to use that 
product when they don't use tobacco products? So it is disingenuous to 
suggest that there is a pathway for reduced-risk products when, under 
the construction you make anybody go through, you can't possibly make 
the claim they ask you to make because you can't communicate with non-
tobacco users as to whether this product would be something they would 
choose to use. So any claim based upon that, that this is a bill which 
addresses death and disease, is disingenuous at best because what it 
does is it locks this category. It cements those people who currently 
use smoke products--cigarettes--the 19.8 percent of the American people 
who currently smoke.
  So far in this debate, I have seen charts, like everybody else, that 
would make your skin crawl and I have heard stats that would make your 
head spin. I even heard Senator Sanders come to the floor yesterday and 
say tobacco manufacturers want to get you addicted to heroin. I think 
he misspoke, but I have to tell my colleagues I am not absolutely 
positive of that.
  All of this follows the same conclusion: Under H.R. 1256, which is 
the base bill, the sponsors claim that the FDA will stop everything, 
that all of this will go away. And let me concede for a minute that 
maybe they are right, then they would have to concede that I am right--
with the exception of locking this product in forever. If you lock that 
product in forever, then you can't make the claim that you are reducing 
death and disease.
  I think, as I have gone through this debate and pointed out that when 
you look at the CDC study of 50 States and you look at the percentage 
of smoking prevalence in our youth, what you find is that in 48 States 
out of 50, the prevalence of marijuana usage is higher than the 
prevalence of smoking. Let me say that again. In 48 out of the 50 
States, the prevalence of marijuana use is higher than the prevalence 
of smoking. One would conclude from that, since marijuana is illegal--
it is not age-tested; it is illegal--that the usage prevalence among 
youth would be zero. Well, the American people aren't that foolish. 
They realize nothing goes to zero. But they also realize it is foolish 
to suggest that if you concentrate tobacco jurisdiction at the FDA, the 
smoking prevalence is going to go below that of marijuana because 
marijuana is illegal.

[[Page S6146]]

  The fact is, putting tobacco regulation at the FDA is not going to 
have any impact on youth usage. What is going to have an impact on it? 
Actually taking the master settlement dollars from 1998, the $280 
billion the tobacco industry committed to the States, all 50 of them, 
for two things: one, to defray their health care costs, and two, to 
fund the programs of cessation to get people to quit smoking and fund 
the programs to make sure children never take it up. But as I pointed 
out, we have some States that, when the CDC annually makes its 
recommendations, spend as little as 3.7 percent of what the CDC told 
them they needed to spend of this tobacco money to make sure kids got 
an educational message: ``Do not smoke. It kills.'' Now we are blaming 
it on the fact that they are not regulated enough today and that we can 
concentrate this under one Federal agency, the Food and Drug 
Administration, and by some magical, mythical thing that happens, youth 
prevalence of smoking is going to go down. No. It is going to go down 
when States take the money the tobacco industry gave them and they 
actually use it to reduce the youth usage, to make sure they never take 
up tobacco products, to make sure people switch from smoking products 
to some other form that has a better effect on death or disease.
  I would love to say that my State of North Carolina devotes 100 
percent of what the CDC recommends to use on cessation and youth 
education, but we only spend 17.3 percent of what the CDC recommended 
of the money we got. When you look at all of the States, though, 17 
percent is pretty good. I don't know whether it was used in other 
States for sidewalks or for greenways. I know one thing for certain: It 
didn't go to try to educate young people in this country not to use 
tobacco products. If we want to get the youth usage down, then we have 
to use the tools we know work; that is, education.
  I have listened to my colleagues come to the floor for weeks and make 
unbelievable statements. All of this has followed the same conclusion: 
FDA will stop all of this and FDA will put the evil tobacco out of the 
hands of kids. I think I have made a pretty good case that it is not 
going to happen, not with this legislation. The sad reality is, maybe 
Congress could pass a bill that does all that. That is why Senator 
Hagan and I have offered a substitute. That substitute will be debated 
over the first half of this afternoon, and every Member will have an 
opportunity before the afternoon is over to vote on that substitute.
  I encourage all Democrats, Republicans, and Independents to read the 
bill. You will find that it provides all the regulation in H.R. 1256, 
and more. The base bill limits print advertising to black-and-white 
ads. What does our substitute do? It eliminates print advertising. That 
magazine that mom buys that a 14- or 16-year-old daughter may like to 
look at in the afternoon--under our substitute, they cannot advertise 
there anymore. Under H.R. 1256, they are allowed to advertise, but in 
black and white. In some way, they believe kids cannot read in black 
and white, they can only read in color. That probably tells you more 
about how misguided the legislation is. It is not solving the 
problems--death, disease, and usage. The tools are in place. We can 
reinforce them in a more effective way. That is what the substitute 
amendment, I believe, will do.
  My friend from Connecticut yesterday stated that I was misguided in 
my belief that the FDA was not the right agency to regulate tobacco. He 
said the FDA was the only agency in America that had the scientific 
expertise to do the job. I only have one question: Does the FDA have 
the expertise to make tobacco safe? Again, does it have the expertise 
to make tobacco safe? I think the answer is, no, it doesn't. Therefore, 
it doesn't meet the mission statement of safety and efficacy. But that 
is what they are vested to do. That is what the American people believe 
the FDA accomplishes. To suggest that we would regulate a product that 
doesn't meet that threshold is, to some degree, disingenuous to the 
American people.
  My friend from Connecticut also pointed out that my downplay of CBO's 
estimate on smoking reduction was misplaced. He said that while I kept 
using the 2-percent figure--which is all the population over 10 years--
and CBO had estimated that if we pass the bill, we will reduce smoking 
by 2 percent over 10 years--that was 900,000 fewer smokers over 10 
years, and that number was impressive. I agree that it is impressive. I 
think he said there would be tremendous health care savings with 
900,000 fewer smokers. I am not sure if Senator Dodd heard the 
statistics I gave that were the result of the CDC study. I said 
numerous times that the CDC said that if we do nothing, there is a 
reduction in smoking of between 2 and 4 percent per year--not over 10 
years, but per year.
  I ask my friend from Connecticut, what is more impressive, 900,000 or 
9 million fewer smokers? By doing nothing, as CDC has said, we 
eliminate 9 million smokers. By passing this legislation, CBO says we 
eliminate 900,000 smokers. Nine million fewer smokers is what we would 
have if we pass the substitute, but it is not what we would have if we 
pass the base bill. I ask my friend from Connecticut to truly think 
about the health savings realized without passing the base bill and 
realize that, with the substitute, we might actually get to more than 9 
million.
  My colleague went on to say that I purposely ignore CBO's estimate 
that youth smoking rates will reduce by 11 percent over the next 10 
years under the bill. That is the CBO projection.
  Obviously, he didn't hear me earlier in the morning on this issue. I 
think it is great that smoking rates would decline by 11 percent over 
the life of the bill. I think it is much better that they would reduce 
16 percent if, in fact, the bill weren't enacted. That is what the CDC 
says--16 percent if you do nothing, and 11 percent if you pass H.R. 
1256.
  We are not saving lives with this bill. We are not reducing youth 
usage. If you want to save lives, you need to follow where Senator 
Hagan and I are and create a harm reduction center--one that will 
promote harm reduction products.
  If we go back to the continuum of risk chart, if you look at the 100 
percent risky and 90 percent risky, it is hard to believe you reduce 
death and disease. The only way to do that is if you get people to give 
up these products and you make available products that are on this 
chart, but also some products that are not on this chart. In the 
absence of doing that, there is no way you can claim that you have 
actually affected death, disease, or the cost of health care.
  I listened to my friend from Oregon make statement after statement 
about those dissolvable tobacco products that I pointed out in the CNN 
expose on tobacco. He repeatedly called it candy, also, even though you 
cannot buy it unless you are 18, and it cannot be put in the candy 
section--unless you are CNN and you are doing a story. He said the 
packaging was intentionally shaped like a cell phone to attract kids. 
If a cell phone doesn't work, children don't want it, let me assure 
you. But I will make the pledge to him today that if he will offer an 
amendment to outlaw any packaging that looks like a cell phone, I will 
cosponsor it with him. If he were right, I think every manufacturer of 
anything in the United States would make it look like a cell phone 
today, if it were that effective.
  My friend went on to call Camel Orbs dangerous. He had no scientific 
basis for that claim. He quoted an 8-year-old Surgeon General warning 
on smokeless tobacco that said it caused cancer, but the last time I 
checked, Camel Orbs didn't exist back then. He said that I called harm 
reduction products, such as Camel Orbs, safe.
  I have been on the floor 4 days, and I spoke for 2 hours 37 minutes 
yesterday. I might have slipped, but I don't believe I have ever 
referred to any tobacco product as ``safe.'' If I did, let me retract 
it. I have frequently said there are products that are ``less 
harmful.'' I have constantly described and made the point that if you 
don't move people from cigarettes to other tobacco products that allow 
them to make that transition, you will not reduce death and disease.
  I don't think tobacco is safe, but I do believe there are products 
that are safer than smoking. I believe that for adults who choose to 
use tobacco products, they should have every option available to make 
sure that that product is something they can access. Compared to 
smoking, they do reduce death and disease.

[[Page S6147]]

  Camel Orbs and Sticks represent a 99-percent reduction in death and 
disease associated with tobacco use compared to cigarettes. They don't 
cause lung cancer, cardiovascular disease, emphysema, or COPD.
  The American Association of Public Health Physicians states that 
those Orbs are the most effective way to fight death and disease 
associated with current tobacco users. Yes, much to my amazement, the 
American Association of Public Health Physicians came out and endorsed 
the substitute to H.R. 1256. Again, yesterday, the Association of 
Public Health Physicians endorsed the substitute amendment to this 
bill.
  Unlike my friend from Oregon, I have the science to back up my claim. 
I have the studies from Sweden, and I have looked at the documented 
evidence. Alternative tobacco products work in harm reduction. I will 
tell you what doesn't work--current cessation programs, especially the 
ones that are not funded in that money that was supplied to the States. 
The current cessation programs don't work; they have a 95-percent 
failure rate. So 95 percent of the people return to smoking.
  Why in the world would we continue to support that as a pathway for 
reducing death and disease? Why wouldn't we acknowledge the science 
that currently exists and accept, in new policy, a policy that would in 
fact embrace this?
  May I inquire how much time I have left?
  The PRESIDING OFFICER. Four minutes.
  Mr. BURR. Senators come to the floor and speak about the $13 billion 
in marketing the tobacco industry spends. They fail to tell you that 95 
percent of that money goes to retailers and coupons against the 
competition and to make them more attractively priced at retail. Only 3 
percent actually went to advertising in adult venues and point of sale 
displays. That doesn't make it a good point.
  What makes it a good point is that the tobacco industry spends a 
tremendous amount of money making sure that their industry is protected 
for those who choose to use it and are of legal age.
  Last year, we taxed the tobacco industry to fund the children's 
health insurance program. There is a proposal on the table to tax them 
to pay for universal health care. Senator Dodd admitted yesterday that 
the industry would be taxed to pay for this bill.

  But that is not a good story. A good story is placing tobacco 
products in the candy aisle by a news organization just to make a point 
and then portray to the American people that these are the tactics of 
the tobacco industry.
  I have, over 4 days now, come to the floor not to defend the tobacco 
industry, but to defend the FDA, because I don't believe the American 
people deserve us to discredit the gold standard of the FDA by putting 
this product under their jurisdiction and asking them to do something 
they have never, ever done.
  When I showed the flow chart of jurisdictions, the one missing out of 
the current regulatory architecture for tobacco is the FDA. Nobody can 
claim to me they have done this before and, therefore, this is an 
appropriate thing to do again. Simply, I have come to the floor in the 
last 4 days to debate the policy. At the end of the day, I hope Members 
of the Senate will weigh the policy, the points that I have made, the 
statistics I have produced, the evidence I have brought to the table, 
and if, at the end of the day, what you are attempting to do is reduce 
death and disease, reduce youth usage, I hope I have made the case to 
you that you should not pass H.R. 1256.
  This afternoon, before there is an opportunity to vote, I hope to 
make the case that you should support the Hagan-Burr substitute. I hope 
I have made the case to most that even if the choice comes down to 
passage of H.R. 1256 or nothing, that the CDC report says if you want 
to address a reduction in death and disease, the fastest way to get 
there is to do nothing if, in fact, your only choice is to pass H.R. 
1256.
  Once again, I thank my colleagues for their patience as I come to the 
floor to try to educate and provide facts.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, I unanimous consent to speak in morning 
business for 30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, first, I will address the issue pending on 
the floor of the Senate, which is the issue of whether we are going to 
have the FDA regulate tobacco.
  The FDA, historically, focuses on the obvious--food and drugs. Over 
the years, we have expected from them that they would do their job and 
make sure, as much as humanly possible, that American consumers would 
not be exposed to dangerous food products or dangerous drugs and 
medicine. Sometimes they have failed us, but most of the time they do 
the job pretty well.
  The way they do their job, when it comes to food, is pretty obvious 
when you go to the grocery store. A consumer buying a pound of 
spaghetti can grab the box or bag and look at the label and find out 
the contents, including a nutrition square that talks about 
carbohydrates, fat, and calories, which people are concerned about 
before making choices.
  When it comes to medicines and drugs, the Food and Drug 
Administration goes a step further. They require that products that are 
sold in the United States be both safe and effective. If you are going 
to sell a drug that is supposed to lower your cholesterol, the Food and 
Drug Administration wants it tested to make sure it does not hurt you, 
No. 1, and, No. 2, that it does what it is supposed to do.
  So over the years, for almost 100 years, the Food and Drug 
Administration has created a safety net for American consumers so that 
the things we purchase, at least by that agency and a few other Federal 
agencies, have some review before the consumer purchases it.
  Then along comes tobacco, and the tobacco industry has argued for as 
long as this issue has been going on that they should not be covered by 
the Food and Drug Administration. They say: We are not food. Nobody 
eats tobacco for nutrition or other purposes. And we are not a drug. We 
are just tobacco leaves that are ground up, put in a little paper 
cylinder that people enjoy smoking or maybe chewing. That is all it is 
about.
  For the longest time, they were exempt from the Food and Drug 
Administration asking the most basic questions. For example: What is in 
your product? If you believe it is just tobacco leaf ground up and 
stuck in paper, you are wrong. It turns out that tobacco companies 
learned a long time ago that if they added chemicals to the cigarettes, 
they could get more consumer satisfaction, more consumer use, and 
people buying more of their product.
  What did they add? They learned a long time ago that the tricky part 
of tobacco is nicotine. Nicotine is a drug naturally occurring in 
tobacco which, if you smoke it, your body starts to crave it, and with 
that craving and that demand of your body each day for more and more of 
the chemical, you smoke more and more. Nicotine, craving, leading to an 
addiction.
  I don't use that word lightly. I have seen people who are addicted to 
tobacco products--virtually all of us have--folks who just cannot quit. 
They try everything--hypnosis, patches, lectures, you name it--and they 
cannot quit. They crave that nicotine chemical.
  The tobacco companies learned a long time ago that if they added more 
nicotine to those tobacco leaves than naturally comes out of them, the 
people get more addicted. It makes it more difficult for them to quit. 
So they started piling more nicotine into the cigarette. But that was 
not the end of it.
  They also said: The first time a kid or somebody picks up a cigarette 
and takes a big drag of it, often they cough because their body is 
saying: What are you doing to me? You are jamming that smoke into my 
lungs? That doesn't belong there. They found other chemicals that they 
could add to cigarettes which would reduce the body's rejection and 
would make it more pleasant to the taste, and so they pumped those 
chemicals in as well. Then came a whole soup of chemicals that they 
added for any number of reasons.
  Obviously, when you buy a pack of cigarettes, if you want to know 
what is in the cigarette and take a look at the

[[Page S6148]]

package, you will find there is no disclosure whatsoever. None. You 
don't know what is in there. All you know is this is paper and tobacco 
to start with, but you don't have a clue that there is more nicotine or 
other chemicals added. And you certainly don't have a warning on the 
package that some of the chemicals they stick in cigarettes literally 
cause cancer. It isn't bad enough that burning tobacco and inhaling the 
smoke can cause cancer, there are other chemicals that are carcinogenic 
added by tobacco companies because they think it makes a more pleasant 
product.
  The obvious thing the American consumers would say is: Where is the 
Food and Drug Administration warning? Why won't they tell us the 
ingredients on that tobacco package? Why won't they tell us if they are 
dangerous? Because they do not have the legal authority to do it.
  From the beginning of time, with the tobacco lobby being one of the 
most powerful in Washington, they made sure the Food and Drug 
Administration had no authority when it came to this product. None.
  Who does regulate tobacco in the United States? The answer is not 
anyone; no agency does. The only real regulation has come out of court 
cases where people who were injured sued the tobacco companies because 
of things such as misrepresentations--light tobacco, low-tar tobacco, 
safer cigarettes. People take them to court and say that is misleading 
and deceptive. They have won cases, and they have had to disclose more 
information over the years.
  Today we are trying to do something that the tobacco companies' lobby 
has been fighting for decades. We are trying to let the Food and Drug 
Administration take over the responsibility of making certain that 
American consumers are at least informed about tobacco products so they 
know what is in that little package, whether it is dangerous, and they 
can make a conscious choice about purchasing it.
  The second thing we do is to make sure that we keep those tobacco 
products out of the hands of kids. Why? The math is very simple. Every 
day about 1,000 Americans die from tobacco-related disease--lung 
cancer, heart disease--1,000 die. If you were a company selling a 
product and 1,000 of your consumers are dying every day, you start 
wondering whether you are going to be in business in a few years. So 
you have to recruit more consumers of tobacco products.
  But tobacco companies have a problem. If people wait until they are 
older--18, 19, 20 years old--to make a choice about smoking and using 
tobacco, they will probably say: Are you kidding? No way. It is 
dangerous and it is stupid and it is expensive. So if you cannot get 
adults to make up for the 1,000 tobacco users who die each day, where 
do you go? Kids. You go to children. You try to find ways to lure 
children into using tobacco products.
  The advertising has a lot to do with it, but so does human nature. My 
wife and I raised three kids. We have seen a lot of kids being raised. 
I even have vague memories of my youth. The first thing you are 
attracted to is what your parents say you should not touch. Don't you 
dare touch that pack of tobacco. Don't you dare smoke a cigarette. 
Can't wait to try it, right? Get out behind the garage with your 
cousin, the way I did when I was 10 or 11 years old, to smoke my first 
cigarette. Man, that shows I am independent, I am grown up, I make up 
my own mind. Kids will do this. I wish they did not. I wish I had not. 
But they do it.
  I told the story on the floor the other day about when I was a little 
kid growing up in East St. Louis. My cousin Mike and I went out behind 
a garage and smoked a cigarette. Lucky for me I didn't like it much. I 
didn't continue the habit. Unfortunately, my cousin Mike did. He passed 
away 2 weeks ago--younger than I am--passed away from tobacco-related 
lung disease. It was an addiction started behind that garage that he 
could never break the rest of his life. There he was, on oxygen, 
smoking the night before he died. He just could not quit. It is a 
terrible addiction.
  The tobacco companies know to make up for the thousand who die each 
day. They need 1,000 new smokers a day. Where do they get them? They 
get them from our kids. Mr. President, 3,000 to 4,000 kids will try a 
cigarette in America for the first time today, and about 1,000 of them 
will decide: I am going to keep doing this. And so the ranks of those 
who die from tobacco-related disease are filled by children.
  This bill says we know that and we have to stop it. So not only do we 
give the Food and Drug Administration the authority to tell us the 
ingredients in the package, we give them the authority to police how 
people sell tobacco products in America.
  It is no coincidence that they start peddling these tobacco products 
with candy flavors, because they know kids enjoy candy and will enjoy 
candy cigarettes. I am not making this up. Chocolate cigarettes and 
vanilla and strawberry--all these things they come up with so that kids 
will be attracted to the product. We put an end to that stuff. And we 
say to retailers: Get serious. You better put those cigarettes away 
from kids. You better not sell to them or you are going to face a 
serious penalty. If we are sincere about protecting our kids, we have 
to do this.
  I have been involved in this fight for a long time. I was attracted 
to it when I first got elected to Congress and probably because like 
virtually everyone following this debate, somebody in my family died 
from a tobacco-related disease. In my case, it was my dad. He was 53 
years old, and he died of lung cancer. I was 14 years old. It was 
devastating to my family, to me. But my story is not unique. Sadly, it 
is a story that is repeated over and over every single day.

  About 20 years ago, I decided as a Member of the House of 
Representatives that I was going to do something about it. The first 
thing I did was to tackle the tobacco lobby on one little tiny issue: 
banning smoking on airplanes. Hard as it may be for younger people to 
believe, there was a time when we had what we called smoking and 
nonsmoking sections on airplanes. Can you believe that? We are all 
sitting in the same metal tube flying across the world or around the 
country, and we are somehow of a mind that if I sit in row 1 through 18 
in the nonsmoking section that I will not be bothered by secondhand 
smoke; it is only those folks in rows 19 to 36 who are going to be in 
the smoking section that are in trouble. Crazy idea. It never made 
sense and caused a lot of problems, health and otherwise.
  So 20 years ago, we banned smoking in airplanes. I did it in the 
House. Senator Frank Lautenberg of New Jersey did it in the Senate. It 
became the law of the land and eventually all flights became smoke 
free.
  I do not want to take more credit than is due, but I think finally 
people woke up and said: If secondhand smoke is dangerous on a plane, 
then it is dangerous on a train or a bus or an office or a school or a 
hospital. Things changed across America. Now, it is rare to walk into a 
public gathering place and see people smoking. Folks understand, and 
they do not do that. You do not expose some innocent person to 
secondhand smoke. If you want to smoke, if you made that terrible 
decision that you want to be a smoker, go outside and do it. Don't try 
to put yourself in a position where you endanger others.
  What we are trying to do with this bill is to move this debate 
forward. It was not enough that we could put warning labels on at one 
time that now have become so small and irrelevant that people do not 
even see them. It wasn't enough that we banned it on airplanes. If we 
are serious about protecting our kids from tobacco and smoking, we have 
to do more.
  This may be an easier issue for me coming from the State of Illinois 
than Senators from tobacco-producing States or tobacco-manufacturing 
States. I accept that. This is not easy. For them the issue may be 
different. It may be in terms of tobacco growers and farmers. It may be 
in terms of tobacco-related employees. For them the idea of reducing 
the number of people smoking cigarettes has an economic impact. So I am 
not going to begrudge them coming to the floor and their attempts to 
change this bill that is before us. It is perfectly understandable. I 
do not question their motives at all. But I come to it from a public 
health viewpoint. I think what they are offering as an alternative is 
not a good one. Let me tell you why.
  We have 1,000 organizations, literally 1,000 organizations, health 
and consumer organizations across the United

[[Page S6149]]

States that have endorsed this bill. I have literally in my time in 
Congress, 27 years, never seen a bill with this kind of endorsement. 
People understand this now. They understand we have to do this now. 
Senator Kennedy, who is our champion and inspiration, cannot be with 
us. He is battling a brain tumor and doing well, but he cannot make it 
to the floor. But I will tell you that he is in our hearts, thoughts, 
and prayers today. This bill is about his valiant effort to make sure 
we do this. So many organizations join him and us in saying this is 
long overdue.
  Those on the other side have come up with a substitute, an 
alternative. There are a lot of problems with it. I have heard the 
Senators from North Carolina--Senator Burr was just on the floor--talk 
about their alternative. We took a look at it. It turns out there are 
some problems with their alternative.
  They want to create a new Federal agency. They don't want the Food 
and Drug Administration to do this. Unfortunately, it will be an 
untested and underfunded agency. They do not understand the concept 
behind trying to keep tobacco products out of the hands of kids. They 
say maybe there are some alternative products these kids could use 
which would not be as dangerous, the so-called risk reduction idea. We 
started our bill on the premise that the tobacco industry's practices 
mislead people and result in terrible health consequences, and they 
have to be changed.
  One of the ways they propose to reduce the risk of tobacco is to 
change the form of tobacco. Instead of cigarettes inhaled into the 
lungs, it turns out they believe that spit tobacco, chewing tobacco, is 
a safer way to use tobacco. The proposal that is being offered by the 
Senator from North Carolina virtually exempts smokeless tobacco 
products from regulation. You know what I am talking about, those 
little pouches you stick in your mouth that let tobacco juices flow, 
and so forth. We even have some Senators who chew tobacco, if you can 
believe that--it is a fact--and spit into cups. Not my idea of a good 
time. But some of them do it anyway.
  This bill would not go after that form of tobacco. There is little, 
if any, evidence that smokeless tobacco products are a step in the way 
of quitting smoking or becoming healthy.
  In fact, many of these new smokeless products are being marketed to 
smokers as a way to sustain their addictions in places where smoking is 
no longer allowed. Take a look at this product: Camel Snus, frost-
flavored Camel Snus, 15 pouches. See these little pouches over here?
  For those who aren't familiar with it, snus is a smoke-free, spit-
free tobacco product that comes in little pouches which can be placed 
under the upper lip. And as one high school student described it: It is 
easy--says the high school kid--it is super discreet. None of the 
teachers will ever know what I am doing.
  This is their idea and the alternative? This is the idea, the 
alternative of the Senator from North Carolina to kids smoking 
cigarettes. The Web site for Camel Snus boasts that ``snus can be 
enjoyed almost anywhere, regardless of growing smoking bans and 
restrictions.''
  So do we really want a national policy--as the Senator from North 
Carolina is suggesting--that steers people toward this kind of a 
product? Let's look at the facts.
  Smokeless tobacco is loaded with dangerous ingredients, just like 
cigarettes. The National Cancer Institute reports that chewing tobacco 
contains at least 28 known cancer-causing agents. Smokeless tobacco may 
be a reduced risk in some respects compared to cigarettes, but its use 
is still a serious health problem and a danger to children. If you need 
proof of that, look at this poor young man here.
  Gruen Von Behrens is an oral cancer survivor. This young man has had 
more than 40 surgeries to save his life, including one radical surgery 
that removed half his neck muscles and the lymph nodes and half of his 
tongue. Like too many teenagers, Von Behrens first tried spit tobacco, 
which this bill says is a safer way of using tobacco than cigarettes, 
at age 13--13--in order to fit in. It only took 4 years for him to be 
diagnosed with squamous cell carcinoma. Look what this poor young man 
has been through because of a product which the North Carolina Senator 
tells us is something we should be moving toward in this country.
  I think of all those kids who used to have the little can of snuff--
baseball players--in the back of their jeans and how cool that was, and 
I just wonder how many of them face this kind of an outcome because of 
popular fads. Would we want to endorse that as part of our debate on 
the future of tobacco in America?
  The Burr substitute is based in part on an unproven assumption that 
smokeless tobacco should be promoted as a way to help people quit 
smoking. But the 2008 U.S. Public Health Service Clinical Practice 
Guidelines concluded that the use of smokeless tobacco products is not 
a safe alternative to smoking, nor is there any evidence to suggest it 
is effective in helping smokers quit.
  Smokers who are trying to quit already have access to safe, 
rigorously tested, and FDA approved forms of nicotine replacement, like 
including nicotine gum, the patch, lozenges and other medications.
  Let's steer people who want to quit toward these FDA approved 
products, not toward smokeless tobacco, which is riddled with 
carcinogens.
  Another weakness in my colleague's bill is in the limited authority 
it gives the new agency to oversee the contents of tobacco products.
  The Kennedy bill gives the FDA strong authority to regulate the 
content of both existing and new tobacco products, including both 
cigarettes and smokeless tobacco products.
  The Burr substitute gives the new agency virtually no authority over 
the content of existing smokeless tobacco products--no matter how much 
nicotine, and no matter how many cancer-causing agents they contain.
  My colleague's substitute gives the agency far less authority to 
remove harmful constituents in cigarettes than the Kennedy bill does, 
and it makes it far more difficult for the agency to act.
  The Kennedy bill allows the FDA to fully remove harmful constituents.
  The Burr proposal allows only the reduction--but not the 
elimination--of known harmful substances.
  The Kennedy bill allows the FDA to take into account the impact of 
product changes on potential users--including children--and the effects 
on former smokers who might be enticed to resume the nicotine 
addiction.
  The Burr substitute allows the agency to consider only the narrow 
health impact on existing smokers.
  The Kennedy bill allows the FDA to reduce or fully eliminate 
substances that ``may be harmful'' using the best available scientific 
evidence.
  The Burr substitute requires the agency to demonstrate that a single 
product change is likely to result in ``measurable and substantial 
reductions in morbidity.'' This standard will be extraordinarily 
difficult to meet given the large number of harmful substances in 
cigarettes. It is language that will tie the agency in knots and 
prevent actions that are clearly in the interests of public health.
  The Kennedy bill includes an outright ban on candy and fruit-flavored 
cigarettes.
  The Burr alternative bans only the use of candy and fruit names on 
the products, while allowing the use of candy and fruit flavors to 
entice young people to begin using products laced with nicotine and 
carcinogens.
  All these details are important--they mark the difference between an 
approach that gives the government real authority to regulate the 
contents of tobacco products, and an approach that bows down to the 
industry and leaves tobacco companies in charge of these decisions.
  We shouldn't continue to give those companies that kind of power.
  There is another serious problem with the substitute offered by the 
Senator from North Carolina. It does not adequately protect consumers 
from misleading health claims about tobacco products.
  The Kennedy bill sets stringent but reasonable scientific standards 
before manufacturers of cigarettes and smokeless tobacco products are 
allowed to claim that their products are safer or reduce the risk of 
disease.
  The Burr substitute completely exempts smokeless tobacco products 
from these standards even if those

[[Page S6150]]

claims are likely to cause youth to take up tobacco for the first time.
  When smokeless tobacco manufacturers aggressively marketed their 
products to young people in the 1970s, often with themes suggesting 
that they were less harmful than cigarettes, use of those products 
increased among adolescents.
  The Burr substitute only allows the agency to look at the impact of 
health claims on individual users of tobacco products.
  It does not allow the agency to consider whether the reduced risk 
claim would increase the harm to overall public health by increasing 
the number of youth who begin using tobacco products or reducing the 
number of current users who quit.
  The Senator from North Carolina has criticized the Kennedy bill for 
limiting tobacco advertising to black-and-white text-only material in 
publications with significant youth readership.
  His substitute, he says, goes further by banning tobacco advertising.
  That is an attractive talking point. But like so much tobacco 
advertising, it is misleading. It has a barbed hook buried in it.
  The fact is, a broad, indiscriminate ban on tobacco advertising would 
likely be struck down by the courts.
  The courts would probably rule that it is an impermissibly broad 
limitation on speech.
  They would say the ends are not sufficiently tailored to the means, 
and they would conclude that it violates the first amendment.
  That is what constitutional scholars tell us.
  The result of the Senator's amendment would be a continuation of 
current law--a continuation of the insidious advertising the industry 
currently uses to lure new customers. Under the guise of a total 
advertising ban, he would give us the status quo.
  And the tobacco industry would thank him for it.
  My colleague from North Carolina has improved the warning labels he 
would require on cigarettes. But they would not be strong enough.
  The Burr substitute would allocate 25 percent of the bottom front of 
the package to a warning label.
  In contrast, the Kennedy bill reflects the latest science on warning 
labels by requiring text and graphic warning labels that cover 50 
percent of the front and back of the package.
  Clearly, a health warning that takes up the top half of the front and 
back of a package will be more noticeable and easier to read than one 
that takes up only a quarter of the bottom of the package--an area that 
may be hidden by the sales rack.
  Senator Kennedy's bill also gives the FDA the authority to change the 
warnings in light of emerging science. Under the Burr substitute, the 
agency would not have any authority to change the warning labels.
  And the Burr amendment's required warning labels for smokeless 
tobacco products read more like endorsements than warnings.
  For example, one of the required statements is a warning that the 
product has a significantly lower risk of disease than cigarettes. That 
is not a health warning--it is an unhealthy promotion.
  We have an historic opportunity to finally put some real and 
meaningful regulations in place, and that will stop some of the tobacco 
industry's most egregious practices.
  For decades, this industry has lied to us, and I don't know why we 
would trust them now to do the right thing.
  We should not accept the underlying premise of the Burr substitute, 
that a lifetime of addiction and a high risk of premature death must be 
accepted, and that our strategy should be to steer people towards 
``reduced harm'' products.
  That is the smokeless tobacco approach, not the public health 
approach.
  The Kennedy bill is a strong and carefully crafted solution that puts 
the public health first.
  The Kennedy bill is the bill that should be enacted.

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