[Congressional Record Volume 168, Number 21 (Wednesday, February 2, 2022)]
[Senate]
[Pages S466-S467]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              E-Cigarettes

  Mr. President, I am glad that Senator Murray is on the floor because 
the issue I want to raise now is one that she knows well, and I thank 
her for her leadership.
  A little bit of history. In 1964, an advisory committee headed by the 
U.S. Surgeon General issued a landmark report linking cigarette smoking 
to lung cancer, heart disease, and other deadly diseases--1964. That 
was considered to be breakthrough information, that tobacco actually 
caused cancer.
  For decades after that, big tobacco companies denied it. They 
continued to lie to Congress and to the American people about the 
products they were selling. Tobacco companies knowingly lied to America 
when they claimed their products didn't cause cancer and weren't 
addictive, and they lied when they said they weren't targeting children 
with their products.
  We know they lied because a trove of 14 million internal industry 
documents that finally were made public in 1998 as part of the 
settlement of a lawsuit in Minnesota showed what the five major tobacco 
companies actually knew when they were making public denials.

  These same documents provided damning evidence against Big Tobacco in 
a historic lawsuit brought by attorneys general from 46 States. Let me 
read you some of the things that executives of Big Tobacco said about 
children and smoking in their own internal memos they thought would 
never see the light of day:
  A 1981 report by Philip Morris, creator of the Marlboro Man, said: 
``[T]he overwhelming majority of smokers first begin to smoke while 
still in their teens. . . . The smoking patterns of teenagers are 
particularly important to Philip Morris.''
  ``[T]he base of our business is the high school student.'' That is 
from a 1978 memo from the makers of Newport cigarettes.
  This is from R.J. Reynolds, the brains behind the cartoon character 
Joe Camel. Here is what the document said: ``The fragile, developing 
self-image of the young person needs all the support and enhancement it 
can get. Smoking may appear to enhance that image.''
  ``Replacement smokers''--those were the repugnant words used by Big 
Tobacco executives to describe our kids, America's teenagers. If you 
can hook them young, you will have them for life--that was their game 
plan.
  All of the tobacco industry's deadly deception about kids and tobacco 
was supposed to stop.
  In 2009, Congress passed a landmark law giving the Food and Drug 
Administration the clear authority and responsibility to regulate 
tobacco products. That was something Big Tobacco had fought for 
decades, but they lost. The Tobacco Control Act requires tobacco 
companies to obtain FDA approval for any new tobacco products. In a 
specific effort to discourage young people from smoking, the law also 
bans most flavored cigarettes because of their clear role in hooking 
kids.
  When it comes to traditional cigarettes, we have made amazing strides 
in the time that I have served in Congress. Twenty years ago, nearly 30 
percent of high school kids were smokers of cigarettes; today, fewer 
than 5 percent.
  But tobacco companies didn't take this lying down. They came up with 
new products to hook kids: e-cigarettes, vaping, little gadgets that 
turn nicotine-spiked liquids into a vapor that is inhaled. It is 
powerful stuff. One pod of vaping liquid can contain as much nicotine 
as a whole pack of cigarettes.
  They came up with flavors to entice children. Tell me--they deny it, 
but listen to the names of these flavors and see if they were made for 
kids or adults: Gummy Bears, Cotton Candy, Unicorn Poop, Fruit Loops, 
Skittles, Sweet Tarts. Come on. We know what this is all about. They 
are enticing kids to take up vaping and e-cigarettes, and it worked.
  In 2014, e-cigarettes became the most popular tobacco product used by 
our kids. Today, nearly 30 percent of all high school students are 
vaping. The e-cigarette industry is now worth billions of dollars.
  Who are the biggest players? Hang on tight. JUUL is the No. 1 seller 
of e-cigarettes. Altria, the largest seller of traditional cigarettes, 
bought a 35-percent stake in JUUL--Altria, buying 35 percent of JUUL. 
Vuse is the second largest seller of e-cigarettes. It is made by R.J. 
Reynolds, the producer of the Camel cigarettes, which caused my 
father's lung cancer. R.J. Reynolds is the second biggest seller of 
traditional cigarettes.
  Do you see any patterns here? We all knew that Big Tobacco would try 
to find new ways to addict children on their deadly products. They 
never quit, which is why the Tobacco Control Act allowed the FDA to 
establish authority over e-cigarettes. But what we didn't expect was 
that the Food and Drug Administration would sit back as Big Tobacco 
dusted off its playbook to ignite what one former FDA Commissioner 
called ``an epidemic of youth vaping'' in America.
  For years, teachers warned about kids using JUULs in the classroom. 
Parents found devices that looked like flash drives in their kids' 
backpacks. Even kids themselves warned about the highly addictive 
nature of e-cigarettes.
  Many of us in the Senate demanded that the FDA take action. Senator 
Murray, the chair of the HELP Committee, has been one of the leaders of

[[Page S467]]

this. Countless callers, letters, meetings with FDA Commissioners went 
nowhere. Testimony and alarming data from public health groups and 
parents yielded no action. The FDA still failed to use its existing 
statutory authority to police these e-cigarette products, allowing 
millions of e-cigarettes to flood the market illegally, while the e-
cigarette manufacturers made outrageous and unsubstantiated claims 
downplaying their risk to kids.
  In 2019, finally, a Federal judge stepped in and ordered the FDA to 
do its job, instructing them to finalize the review of e-cigarettes--
remember this date--by September 2021, last September. The FDA's court-
ordered deadline to act on pending e-cigarette applications passed 
nearly 5 months ago--5 months. Yet, incredibly, many of the e-
cigarettes used mostly by kids--the products fueling the epidemic--are 
still on the market today.
  The law is clear on this issue. Tobacco companies must prove--they 
have the burden of proving--to the Food and Drug Administration that 
their product is ``appropriate for the protection of the public 
health.'' Why haven't they proved it? Because they can't. There is no 
evidence of it. So, if they can't meet the burden of proof, how do they 
continue to sell these products on the open market? Meeting that burden 
was supposed to be a condition precedent, the first thing they had to 
do to sell these e-cigarettes. Well, it is because the FDA, the Food 
and Drug Administration, is sitting on its hands. It is refusing to use 
its own legal and statutory authority. Big Tobacco continues to target 
``replacement smokers.'' Those are our kids.
  The Senate is expected to vote soon on a new FDA Commissioner. In 
determining who that person will be, we will have the opportunity. Let 
me change that. We have the responsibility to make it clear that the 
FDA has to stop dragging its feet. It must use the authority provided 
by Congress to prohibit tobacco companies from preying on our kids for 
profit.
  As Congress evaluates the nominees, we must be guided by the answer 
to this question: Do we believe that the incoming FDA leadership will 
correct the failures that have gone before them in allowing these e-
cigarette companies to prey on our kids?
  Yesterday, I spoke to Dr. Califf, who is Joe Biden's nominee to be 
the head of the FDA. I have had serious misgivings about whether he is 
the right person for the job, but I finally relented yesterday and 
said: Yes, Dr. Califf, I will support you, but if you make it, I am 
going to hold you personally responsible for taking control of this 
issue.
  Our kids' lives are at stake. We have waited too long. The FDA has 
sat on its hands when it should be moving to protect our kids. It is 
long overdue. In the interest of our children, I sincerely hope that 
the leadership of the FDA will open its eyes and do its duty.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Smith). The Senator from Indiana.


                 Unanimous Consent Request--S. Res. 494

  Mr. BRAUN. Madam President, on January 22, 1973, the Supreme Court 
handed down their decision in Roe v. Wade, homogenizing an approach to 
abortion across the country. It is estimated that over 60 million lives 
have been lost to abortion since this decision.
  This resolution recognizes January 22, into the future, as the Day of 
Tears. It encourages Americans to lower their flags to halfstaff to 
mourn the lives lost to abortion.
  I am joined on this resolution by Senators Daines, Inhofe, Blackburn, 
Hagerty, Lankford, Hawley, and Rounds.
  Similar resolutions have passed in Alabama, Arizona, Arkansas, Idaho, 
Louisiana, and West Virginia. Representative Jody Hice is leading a 
similar measure in the House. It has 51 cosponsors from 26 States.
  Two weeks ago, thousands of Americans joined the March for Life to 
stand up for the unborn. Later this year, the Supreme Court will issue 
a decision on a case which strikes at the heart of Roe v. Wade. Our 
current abortion guidelines, we only have five other countries that 
would be similar. Two of those countries are China and North Korea. 
What does that say about abortion in America?
  Minimally, the Court needs to return this to the States so that we 
don't have this policy put upon all of the States, at least half of 
which disagree with it. Whatever that decision may be, we must remember 
the millions of lives lost to the tragedy of abortion.
  Madam President, as if in legislative session, I ask unanimous 
consent that the Committee on the Judiciary be discharged from further 
consideration and that the Senate now proceed to S. Res. 494. I further 
ask that the resolution be agreed to, that the preamble be agreed to, 
and that the motions to reconsider be considered made and laid upon the 
table.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Washington.
  Mrs. MURRAY. Madam President, reserving the right to object.
  Just weeks ago, we celebrated the anniversary of Roe v. Wade--the 
landmark decision that affirmed the right to abortion and changed so 
many lives for the better.
  Across the country, patients spoke out about their experiences before 
Roe--about how Roe meant they could get an abortion they needed or even 
how, after Roe, they still struggled to get access to abortion. But 
what was present in all of those stories was real fear about what the 
future holds--the fear of what a country without Roe would look like--
because that is what Republicans are pushing for all across the 
country.
  Republicans in Texas passed SB 8, which bans abortions after 6 weeks 
and allows people to sue anyone who helps someone get an abortion.
  In Idaho, bordering my home State of Washington, extreme Republican 
legislators are trying to pass a law modeled after the Texas abortion 
ban.
  Republicans in Mississippi brought a direct challenge of Roe to the 
Supreme Court and have told the Court, in no uncertain terms, they 
believe Roe should be overturned.
  Now, those are just a few examples, and we have got one more here in 
the Senate today.
  The resolution from the Senator from Indiana sends a message that the 
Republican Party knows best when it comes to some of the most personal 
decisions people make about their health and their futures, about when 
and whether to have children, and about what is best for themselves and 
their families.
  Well, they don't.
  In fact, the majority of Americans support Roe and do not want to see 
it overturned. They want a country where everyone can control their own 
bodies and their own futures, and that is exactly what I am fighting 
for so I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Indiana.
  Mr. BRAUN. Madam President, the Senator from Washington makes the 
point that this is Republicans. This is not Republicans. Of course, 
they are for doing what needs to be done, and that is returning this to 
the States, minimally, taking a decision that was out of context back 
in 1973, when it was made.
  And the opposite of the argument she made would be, Why should the 
Federal Government, based upon the judiciary ruling that was out of 
context, force this on the entirety of the country? When it comes to 
what it allows now--abortions late into a pregnancy--that is not 
supported by most of the country.
  So, minimally, this ought to be returned to the States to reflect the 
views of the different States in this country--50 of them. Over half 
disagree with it, and over half of our citizens would say that it makes 
more sense than what we have now.
  I yield the floor.