[Congressional Record (Bound Edition), Volume 150 (2004), Part 12]
[Senate]
[Pages 15663-15692]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   AMERICAN JOBS CREATION ACT OF 2004

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

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


                           Amendment No. 3562

  (Purpose: To provide a substitute for the bill)
  Mr. McCONNELL. Mr. President, on behalf of Chairman Grassley, I call 
up a substitute.
  The PRESIDING OFFICER. The clerk will report the substitute.
  The legislative clerk read as follows:

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

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


                           Amendment No. 3563

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

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

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

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

[[Page 15664]]

and sale of tobacco products. I say ``finally'' because many of my 
colleagues--first Senator McCain, back in 1997, 1998, began working on 
this. Senator Frist did great work, as well as Chairman Gregg, who put 
a great deal of effort and work into this as well; and then Senator 
Kennedy and myself. We have all been seeking FDA regulation of tobacco 
products. Congressman Davis and Congressman Waxman have a companion 
piece of legislation in the House of Representatives.
  I say ``finally'' because the bill we are offering today is the 
product of long and hard discussions and negotiations that I have had 
with Senator Kennedy and others and public interest groups and 
industry. Our bill has the support of the Campaign for Tobacco-Free 
Kids. Our bill has the support of Philip Morris. Our bill has the 
support of the American Heart Association, the American Lung 
Association, and the American Cancer Association.
  It is a bill of which I am proud. It is worth the Senate's 
consideration and passage. It will provide the FDA, finally, with 
strong and effective authority over the regulation of tobacco products.
  Why do we need this bill? I think we all know why we need it. Every 
day, nearly 5,000 young people under the age of 18 try their first 
cigarette. In my own home State of Ohio, 33 percent--one-third--of 
children smoke. These kids in Ohio by themselves go through 45 million 
packs of cigarettes each year. If that is not bad enough, think about 
this: 90 percent of smokers start smoking before the age of 19. More 
than 6.4 million children across this country will die prematurely 
because of a decision they will make as adolescents; that is, the 
decision to start smoking.
  While States may have limited the options available for tobacco 
advertising under the 1998 master settlement agreement, the reality is 
tobacco companies are still able to choose the content of their 
advertisements, their ads that they run in magazines such as Sports 
Illustrated.
  Sports Illustrated is read by tens of thousands of children across 
this country every single day. Kids read it every single day. These 
companies are savvy. They are smart. They have changed their marketing 
strategies. They have concentrated more money into different 
advertising markets. As a result, years after the major tobacco 
companies agreed to stop marketing to children as part of the tobacco 
settlement, children are still twice as likely as adults to be exposed 
to tobacco advertising. That is who is reading it. That is who is 
seeing it. That is who is hearing it.
  According to the Federal Trade Commission's ``Annual Report on 
Cigarette Sales and Advertisement''--just to take 1 year, the year 
2000--that year represented the largest increase ever in tobacco 
company spending on ``promotional allowances.'' That is the money 
tobacco companies pay retailers to promote their products in prominent 
locations in stores or for highly visible shelf space such as near the 
cash register on an aisle that a customer must walk by to pay the 
cashier. That particular year, cigarette manufacturers spent a record 
$9.57 billion on advertising and promotion.
  That is an increase of 16 percent from $8.24 billion spent in the 
previous year. Tobacco companies also spend billions of dollars 
advertising enticing promotional items--lighters, hats, other 
products--they give away for free at the point of sale or, in other 
words, the cash register or the place of checkout in a grocery or 
convenience store. In fact, spending on such promotional or value-added 
items increased by 37 percent in just 1 year.
  Let's not fool ourselves. These promotional strategies and 
advertisements reach our children. Three-fourths of the children visit 
convenience stores at least once a week. The places where tobacco 
products are marketed influence their decisions. It is that simple. We 
must not allow the industry to continue targeting children.
  This isn't just about an advertising and marketing scheme. It is 
about that, but it is about more. Our bill not only addresses 
advertising, it also addresses the second problem. What is the second 
problem? It is also about tobacco manufacturers' failure to disclose 
the specific ingredients in their products. While simply listing the 
ingredients, toxic as they might be, might not seem like much to some, 
think of it this way: Current law makes sure we know what is in 
products to help people quit smoking, such as the patch or Nicorrette 
gum but not the very products that get people addicted in the first 
place, the cigarettes themselves. Isn't that crazy?
  Think about this: Right now the Food and Drug Administration requires 
Philip Morris to print the ingredients in its Kraft macaroni and cheese 
but not the ingredients in its cigarettes, a product that contributes 
to the deaths of more than 440,000 people a year.
  I ask unanimous consent to display in the Senate three different 
products: macaroni and cheese, a milk carton, as well as a cigarette 
carton I have right here.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Right now, the FDA requires Philip Morris-owned Nabisco 
to print the ingredients contained in Oreo cookies and Ritz crackers 
but not the ingredients in its cigarettes, even though cigarettes cause 
one-third of all cancer deaths and 90 percent of lung cancer deaths. It 
is unfathomable to me that we would require the listing of ingredients 
on these products yet not require the listing of ingredients for one of 
the leading causes of death and disease.
  Right now, the FDA requires printed ingredients for chewing gum, 
lipstick, bottled water, ice cream, but not for cigarettes, a product 
that causes 20 percent of all heart disease deaths and is the leading 
cause of preventable death in the United States.
  A product that I consumed this morning, this carton of milk, we see 
all the ingredients on here. We can read them right on here: Reduced 
fat milk, vitamin A, et cetera, nutrition facts. It goes into great 
detail on the back. We can read all the details right here. It tells 
you anything you want to know. There it is. Here is the macaroni and 
cheese. We can turn it over and get the calories and all the 
ingredients: enriched macaroni product, durum wheat flour, wheat, 
niacin. It goes on and on and on and on, all the way down.
  We see people, when they go to the grocery store, today they are so 
health conscious. They pick these things up and they start reading 
through to see if they have an allergy to something, to see what their 
kids are eating. They will read down to see if they want to buy the 
product. The same company that makes this, makes cigarettes. Yet 
certain brands of cigarettes they will get, there is nothing on here. 
There is the warning that has to be on here. It has been on here a 
number of years. There is nothing else on here--absolutely 
unbelievable.
  Another way to look at this, another problem, if a company wants to 
market a food product that is fat free or reduced fat or light, that 
company is required to meet certain standards regarding the number of 
calories, the amount of fat grams in that product. Yet cigarette 
companies can call a cigarette, light or mild, and not reveal a thing 
about the amount of tar or nicotine or arsenic in that supposedly light 
cigarette.
  Not having access to all the information about this deadly product 
makes no sense. It is something that needs to change. By introducing 
this bill, we are finally saying we are not going to let tobacco 
manufacturers have free reign over markets and consumers anymore. Today 
we are taking a step toward making sure the public gets adequate 
information about whether to continue to smoke or even to start smoking 
in the first place.
  With this bill, we are not just saying: Buyer beware. We are saying: 
Tobacco companies, be honest. We are saying: Tobacco companies, stop 
marketing to innocent children. Tobacco companies, tell consumers about 
what they are really buying.
  I realize full well that tobacco users and nonusers alike recognize 
and understand that tobacco products are hazardous to health. They 
understand that. But that is not what I am talking

[[Page 15665]]

about. I am talking about requiring the tobacco companies to list the 
ingredients that are in their products, things such as trace amounts of 
arsenic and ammonia. It is time we finally give the FDA the authority 
it needs to fix these problems. The legislation that we are introducing 
would do just that.
  First, the bill would make changes regarding tobacco advertising. It 
would give the FDA authority to restrict tobacco industry marketing, 
consistent with the first amendment, that targets our children. 
Additionally, our bill would require advertisements to be in black and 
white text only, unless they are an adult publication and would define 
adult publication in terms of readership. Tobacco advertising is in 
magazines and on billboards along the highway. Tobacco advertising is 
in convenience stores, along the aisles and at the checkout counter, 
right beside the candy, where children are likely to see it. Tobacco 
advertising is at sporting events, part of promotional items where 
consumers can buy one and get one free. Tobacco advertising is on the 
Internet and in the daily delivery of mail.
  Our bill would make changes regarding tobacco advertising. It would 
give the FDA authority to restrict tobacco advertising marketing 
content, consistent with the first amendment, that targets our 
children. Our bill would require advertisements to be in black and 
white text only and would define adult publications in terms of 
readership.
  An issue that is related to advertising and marketing of tobacco 
products has to do with the flavored tobacco products which clearly 
target our children. We have probably all seen the flavored 
cigarettes--flavors such as strawberry, chocolate, and wild rum. The 
scent of strawberries filters through the unopened pack of cigarettes. 
Guess what. The cigarettes smell like candy.
  A recent New York Times article described the scent of chocolate-
flavored cigarettes ``as if someone had lifted the lid on a Whitman 
Sampler.''
  We need to stop this. Children will be curious about something that 
smells or tastes like candy. Cigarettes should not be flavored and 
marketed in such a way to attract children and to encourage children to 
smoke. Our bill bans the use of flavors such as strawberry and grape, 
orange, cinnamon, pineapple, vanilla, coconut, and coffee, and other 
flavorings that would attract children to the product.
  Second, our legislation would give consumers more information about 
what is in tobacco products. Specifically, the bill would provide the 
FDA with the ability to publish the ingredients of tobacco products. 
Despite the fact that 40 million Americans use tobacco products, many 
of them do not know what is inside the cigarettes or the tobacco 
product they ingest. They do not know the ingredients like tar and 
nicotine that are in the product they use. Consumers do not know what 
additives are included in the product, additives such as ammonia which 
makes the tobacco product more addictive because it increases the 
delivery of nicotine.
  Tobacco companies do not disclose the specific ingredients in their 
products because they don't have to. Tobacco products are unregulated. 
Our legislation would give consumers more information about what is in 
tobacco products.
  Specifically, the bill would provide the FDA with the ability to 
publish the ingredients in tobacco products. It would require a listing 
of all ingredients, substances, and compounds added by the manufacturer 
to the tobacco paper or filter.
  It would require the description of the contents, delivery, and form 
of nicotine in each tobacco product. It would require information on 
the health, behavior, or psychological effect of the tobacco product. 
Finally, it would establish the approval process for all new tobacco 
products entering the market, new products like Advance, with this 
``trionic filter,'' which claims to have all of the taste but less of 
the toxins of other cigarettes.
  One of the most dramatic changes our bill makes is that tobacco 
products will now have to be approved before they reach consumer hands. 
It makes sense that tobacco products should not be able to imply that 
they may be safer or less harmful to consumers because they use 
descriptions such as ``light,'' ``mild,'' or ``low tar'' to 
characterize the substance in the product. The National Cancer 
Institute found that many smokers mistakenly believe that low-tar and 
light cigarettes cause fewer health problems than other cigarettes. Our 
bill would require specific approval by the FDA to use those words so 
the consumers could be informed.
  Mr. President, this bill will make a difference. It is a bill that 
will save lives. I will have more to say about this later in the 
debate.
  At this point, I yield the floor to my colleague, Senator McConnell.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). The assistant 
majority leader is recognized.
  Mr. McCONNELL. Mr. President, this is indeed a historic moment for 
Kentucky. Tobacco and the growing of tobacco has been an integral part 
of my State since it came into the Union in 1792. In fact, if you look 
carefully around the Capitol, you will find tobacco leaves actually 
painted here in the Capitol of the United States of America. Many 
people argue--and this is probably an exaggeration--that if it hadn't 
been for tobacco, the United States might not have been colonized 
because it was far and away the most profitable agricultural activity. 
That is most of what the people of that era did back in the beginning 
of our country.
  The Senator from Ohio has correctly stated the important health 
consequences of the use of tobacco. It has taken us several hundred 
years to figure that out and to reach the point where we are today.
  I want to start by commending my colleague, Senator Mike DeWine from 
Ohio. I have never observed a more skillful legislator than he during 
my time in the Senate. You can always tell when the senior Senator from 
Ohio has an idea on his mind: He will come up to you quietly and pull 
you off in the corner and begin to twist your arm. You know he is a 
formidable force who, when he has made up his mind about an issue, 
never lets go. Many bills that have cleared the Senate in the 10 years 
the Senator from Ohio has been here obtain the fingerprints of Mike 
DeWine. He is truly an extraordinary legislator. I know he is excited 
today that the bill he believes so deeply in has a chance to be added 
to this bill. It is very likely to be added to this bill as it goes to 
conference. I congratulate him for his outstanding work.
  Having said that, the Senator is correct; this was a marriage of 
convenience. I can recall as recently as 1996, when I was running for 
reelection in my State, we were wearing T-shirts that said ``keep FDA 
off the farm.'' The idea of FDA regulating this product, particularly 
if it went down to the farm, was universally unpopular in my State. I 
am not a great fan of FDA regulation today, but these two issues needed 
to be married in the U.S. Senate if we were to get either one of them 
out of the Senate and on the way down the legislative road toward some 
accomplishment.
  Mr. President, there is simply no way to overstate how central 
tobacco has been to the history of my State. We started growing it from 
the beginning of the country. Kentucky's soil and climate were 
particularly suitable for this cash crop. Even with all of the problems 
tobacco has today, we always laughingly say in Kentucky that tobacco is 
the most profitable thing you can grow on a per-acre basis in our State 
that is legal. We also have a little marijuana problem in the mountains 
that we try very hard to stay on top of, and I expect that growing 
marijuana is more profitable. But even with all of these problems, 
tobacco is the most profitable thing to grow on a per-acre basis, far 
more profitable than corn, wheat, and the other crops we also grow.
  In the 1930s, tobacco got in serious trouble, as a lot of agriculture 
did. Part of the New Deal, in establishing farm programs, included the 
establishment of the Tobacco Program. Unlike the other farm programs, 
it was a permanent program. It didn't have to be

[[Page 15666]]

reauthorized periodically, like the other commodities that are under a 
Federal farm program. It was a permanent program. It assigned the land, 
based on how much tobacco was being grown in the 1930s, a certain 
amount, a certain acreage, and it did that in Kentucky, Tennessee, 
Virginia, the Carolinas, and Georgia. In that acreage, you had a legal 
right to grow. It was like owning some stock--you could sell it; you 
could lease it; it had value. We called them ``quotas.'' By the time I 
started moving around the State in the early eighties and learning more 
about tobacco, we had 100,000 growers in 119 of our 120 counties.
  In many of these counties, there is not much flatland; but since 
tobacco was so profitable on a per-acre basis, even if you had a tiny 
little plot, or quota, you could make pretty good money. You would see 
these quotas tucked back up in the hollows, right up on the edge of 
where the mountain went straight up. We had it in 119 of 120 counties. 
It was sold at auction around Thanksgiving. Farmers would cut the 
tobacco, strip it, put it into the barns, where it would dry for a 
month or two. It would be sold at these auctions, and the auctions 
would start around Thanksgiving, go through the Christmas season, and 
finish up in the early part of the year. Many of these farmers were 
part time.
  When I came to the Senate, the average grower in Kentucky had three-
quarters of an acre. That was the average. A lot of these folks were 
part time. But this was dependable cash. They could count on it being 
produced around Christmastime. For many very low-income Kentuckians, it 
provided Christmas money; for some it provided the opportunity to send 
their kids to college. It has been an integral part of our culture for 
a very long time.
  None of these folks, of course, are engaged in selling the product to 
kids. They were making a legal living producing an agricultural crop 
that is older than America itself. But beginning with the Surgeon 
General's report in 1964, it was increasingly clear that this is a 
product that is not good for you.
  The campaign that has gone on over the last 40 years is legitimate. 
In Lexington, KY, today, the heart of tobacco country, you cannot smoke 
in a restaurant. That is in Lexington, KY, the heart of tobacco 
country. And in Louisville, KY, my hometown, they have been having a 
big debate about the same issue.
  I say to my friend from Ohio, if anything sums up how this has all 
changed, it is when you cannot smoke in a public place in Kentucky. So 
I think the health argument has been made. It is, however, a legal 
product. The health groups are not trying to make smoking illegal. 
That, of course, would produce an enormous black market and no good 
result.
  So it occurred to this Senator back in 1998 when we were considering 
another tobacco proposal that it was time for a buyout. I never will 
forget joining Senator Lugar of Indiana in advocating a buyout back in 
1998. I was rimracked--rimracked--by the two big newspapers in my 
State. They said I turned my back on Kentucky culture; I had gone 
Washington; I had been up there so long I had forgotten what it was 
like in the hollows and the tobacco fields of Kentucky.
  I was criticized by the Farm Bureau and the Burley Tobacco Co-op and 
all the establishment: How could you possibly be for a buyout? You are 
turning your back on us.
  I took a survey of tobacco growers. I got a pollster and said: Let's 
go out and ask them how they feel about it. Frankly, they were against 
it, too. Fifty percent were against it; about 35 percent were for it. 
So the whole tobacco establishment was against the buyout in 1998 when 
I first advocated it.
  Now, Mr. President, I am treated as a visionary. I was ahead of my 
time. If we had only joined you 6 years ago, we would have gotten this 
job done sooner.
  Being treated as a visionary is kind of fun, but it does not get the 
job done. What is happening here today is we have an opportunity to 
move on down the road toward achieving something that neither the 
Senator from Ohio nor I thought was going to be achieved, which is some 
kind of FDA proposal, which I am not, as I said, very wild about, and a 
buyout which I enthusiastically support, and I cannot find a tobacco 
grower in Kentucky today who is not for the buyout.
  The occupant of the Chair I know has tobacco farmers in his State as 
well. I bet he has not run into any lately who are not favorable to a 
buyout. There has been a complete shift in thinking, and the reason for 
that is apparent. This quota, this asset, is a shrinking asset. As the 
asset shrinks, the land values go down, and it has a real impact on our 
people.
  Some people say: Why should the Government buy out this program? The 
answer to that is the Government created the asset. The Government, by 
establishing the quota program, created the asset, and now if the 
Government is going to terminate the asset, it is appropriate for the 
Government to compensate those for whom the asset was created.
  As I said earlier, 20 years ago, we had 100,000 growers in 119 of the 
120 counties in my State, and the average quota was about three-fourths 
of an acre. We do quotas by poundage these days, but three-quarters of 
an acre, which gives you the sense of the size, was the average.
  Today, we are still growing burley in 117 of Kentucky's 120 counties, 
but the average has gone up to 5.7 acres. So we can see, Mr. President, 
tobacco farmers are leaving, consolidation is occurring even with the 
program.
  The 2002 census of agriculture, which was released a year and a half 
ago, reflected about a 40-percent drop in the number of farms growing 
tobacco in all of the States--not only Kentucky, in all of the States. 
A 40-percent drop in the number of farms from 93,000 in 1997 down to 
56,000 in all of the States. In Kentucky, from 1997 to 2002, we have 
gone from 46,850 tobacco farms down to a little under 30,000. That is 
still a lot of farmers--a lot of them--but their asset is shrinking.
  That brings us to today. The House of Representatives--and I 
particularly commend two Congressmen, Congressman Richard Burr of North 
Carolina and Congressman Ron Lewis of Kentucky, who spearheaded that 
effort over on the House side and very skillfully leveraged the votes 
they had on a bipartisan basis in tobacco country to make it possible 
for the FSC/ETI JOBS bill to pass the House at all. So that proposal, a 
buyout only, is in the House bill.
  The occupant of the Chair and the rest of us from tobacco-growing 
States in the Senate knew we could not get a buyout only through the 
Senate. That would have been our first preference. I say to my friend 
and colleague from Ohio, he knows that would have been my first 
preference. So we have a marriage of convenience here, not a shotgun 
marriage. It is a marriage of convenience. These two issues converge, 
and in the best of the legislative process, we put them together and 
believe we will be able to pass them later this day to go into 
conference. Congressman Burr and Congressman Lewis deserve a lot of 
credit.
  I also commend my colleague from Kentucky, Jim Bunning, who has been 
a stalwart on this issue from the beginning and extraordinarily helpful 
in every way.
  I would be remiss if I did not mention Senator Elizabeth Dole, who 
has been every bit as intense and committed to achieving this issue as 
anyone I have ever seen. It was a big issue in her election in 2002. 
She came into the Senate and said it was her top priority for North 
Carolina agriculture, and she has pursued it with intensity, with 
conviction, with one-on-one meetings, with Senators who were in a 
critical place to make a difference. I know she and others are going to 
be speaking on this issue later. But I say to her, we would not be here 
today without her extraordinary effort on behalf of this proposal.
  This does not guarantee a buyout. I want to make it perfectly clear 
to my folks at home the job is not finished. But we have come further 
than I, frankly, thought we would get. Toward the end of last year, I 
had pretty much given up on the prospects of being able

[[Page 15667]]

to get this proposal through. But now we are on the verge of having a 
buyout. They are a little different. The Senate version will be 
different from the House version--that frequently happens in the 
legislative process--but we are on the verge of having the tobacco 
quota buyout in both the Senate bill and House bill in conference, and 
that is closer than we have ever been before.
  So we have made extraordinary progress, but I do want to caution 
those folks at home who care deeply about this issue that we are not 
there yet. We have come a long way, but we are not there yet. I know 
all of us in the Senate from tobacco-growing States on a bipartisan 
basis are going to continue to press this issue as hard as we can and 
hopefully conclude the buyout process.
  I say in conclusion, it will be a big change. We have had a tobacco 
program in the burley and flue-cured States going back to 1938. It has 
been a way of life. But change is already occurring. The warehouse 
system is basically going away. People are growing tobacco under 
contract now, not selling it to warehouses in the way they used to. 
Change is coming. This is an opportunity to manage that change in such 
a way that people will be fairly compensated for the value of today's 
quota.
  Mr. President, I am optimistic that we may be able to succeed, and I 
thank all of those who contributed to this process.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I thank my good friend and colleague from 
Kentucky for his very kind comments. Those of us who work with Senator 
McConnell in the Senate every day know he is a visionary. We know he 
understands his State.
  We also know if Senators want to know how to get something done, they 
go to Mitch McConnell. I do go to him and I do talk to him and I do get 
him aside, and I do not know if I twist his arm or not. I do talk to 
him and seek his counsel and advice. I am kind of a pest sometimes.
  He was the one who said these two bills are natural to come together. 
He said that well over a year ago, and here we are today. It was his 
idea or his thought that these two bills could be married, and now we 
are sort of at the altar today. Yes, it is a marriage of convenience, 
but I happen to believe it is going to be a good marriage. I think it 
is going to be a marriage that will last, not only through this vote 
today, but I think it is going to be a marriage that will last through 
conference, and it is going to be a marriage that will make its way to 
the President's desk.
  I think it is going to be for the benefit of the American people, the 
tobacco farmers, and the children of this country. I think it will be 
for the benefit of all Americans and for the health of all Americans. 
So I think it is going to be a good marriage, and I thank him for his 
help in bringing it about.
  I yield time now to my colleague and friend who has worked so very 
hard on the FDA portion of this bill and has brought us to the Senate 
floor, the Senator from Massachusetts, Mr. Kennedy.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I join in commending my friend and 
colleague from Ohio, Senator DeWine. Today I am joining him in 
presenting this amendment. We welcome obviously the workings and the 
contributions of Senator McConnell together with the proposal that has 
been described as a shotgun wedding because, on the one hand, as we 
have heard a very informative and eloquent statement of the history of 
the growth of the tobacco industry, the industry itself--not the 
farmers but the industry itself--by and large has resisted the ability 
of the Food and Drug Administration, which generally has the overall 
jurisdiction in dealing with health issues, to be able to deal with 
this issue in order to protect the children of this country.
  I was here in 1964 when we received the Surgeon General's report. It 
arrived like the crack of a whip when we read the Surgeon General's 
report and found for the first time the dangers of tobacco and its 
impact in terms of the health of the population generally, in 
particular with regard to children.
  For years, those of us who were trying to deal with the health 
aspects of this issue, and particularly the health aspects of these 
issues as they relate to children, found strong opposition by the 
tobacco industry. They resisted the commonsense efforts that were being 
made to try and provide protections for the children of this country.
  Now we have a working partnership with those who are interested in 
the tobacco farmers, which I am interested in, and those who are 
interested in protecting the children. We have come together to try to 
make a recommendation, the result of which will provide equity and 
fairness to tobacco farmers, paid for by the industry itself and not by 
the taxpayers, but also to provide the Food and Drug Administration 
with the kind of authority to help protect the children of this country 
from the No. 1 preventable health disease for people that the Federal 
Government can do something about. Tobacco causes one out of every 
three deaths from cancer, one out of five deaths from heart disease and 
87 percent of lung cancer cases. We must slow down the amount of 
children smoking and the addiction that has taken place.
  We have had a considerable period of time since the 1964 Surgeon 
General's report. We have the efforts that were made in the 1970s and 
1980s to try to provide labeling on cigarettes to give information to 
those who were going to start smoking, and it has not been very 
effective. On the contrary, it was used by the tobacco industry as an 
offset, saying, look, we are not responsible. There was information 
that was on the various tobacco products and people were acting on 
their own.
  We tried to strengthen the Office of Preventive Health. We tried to 
put some labeling on smokeless tobacco. We made some very modest steps 
forward in trying to deal with this issue. Then in 1998, when we had 
the great debate on the tobacco issue about compensation, there was a 
provision in that legislation which had a good deal of the kind of 
protections that are included in the DeWine-Kennedy amendment. A great 
deal of that was actually fashioned by our majority leader, Senator 
Frist, who was very much involved in helping shape that particular 
proposal.
  It is interesting, as we had this long debate on the Senate floor on 
tobacco, there was not a single amendment to try and alter that 
authority. It was generally agreed that that was a pretty good balance, 
going back to 1998. From that time, Senator DeWine has picked up this 
opportunity and has continued to press this in the committee, and a 
number of our colleagues have been particularly involved in this issue. 
I think of our colleagues from Iowa and Illinois, Senator Harkin and 
Senator Durbin, and a number of others who have been extremely involved 
in trying to make sure we were going to provide some protections.
  I mentioned the 1964 Surgeon General's report. I will include in the 
Record an appropriate part of the new Surgeon General's report that was 
issued on May 27, 2004. This is from the U.S. Surgeon General appointed 
by President Bush. He is this administration's Surgeon General, and 
this is what his findings are:

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

  It goes on:

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

  Then it continues:


[[Page 15668]]

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

  And then it illustrates these, which is very hopeful.

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

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

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

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

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

  My friend talked about the new chocolate cigarettes. This is what we 
are seeing.
  The appeal is to children. The danger is to children. What we are 
trying to do is give the FDA the authority and the power to do 
something about protecting children.
  As the Senator from Ohio knows, we lag behind virtually every other 
country in the world. Our neighboring country of Canada has done 
something about it; Australia has done something about it; and now the 
European Union is doing something about this issue. Now we have the 
opportunity to do something about it with our particular proposal.
  This is a very modest program. As the Senator from Ohio has pointed 
out, it is a fair and balanced approach to the FDA regulation. It 
creates a new section in FDA for the regulation of tobacco products 
with standards that allow for consideration of the unique issues raised 
by tobacco use. It is sensitive to concerns of tobacco farmers, small 
businesses and nicotine-dependent smokers, but it clearly gives the FDA 
the authority it needs to prevent youth smoking and reduce addiction to 
this highly lethal product. This amendment also provides the financial 
relief for the hard-pressed tobacco farmers that has been outlined and 
commented about earlier by Senator McConnell.
  This proposal is a legitimate buyout plan designed by tobacco State 
members for the benefit of their tobacco farming constituents. It is 
far superior to the ill-conceived proposal in the House.
  The heart of this amendment is the FDA provision which will lead to 
fewer children starting to smoke and to fewer adults suffering with 
tobacco-induced disease. Public health groups tell us it is the most 
important legislation we can pass to deal with the Nation's No. 1 
health hazard. We must deal firmly with the tobacco companies' 
marketing practices that target children and mislead the public. The 
Food and Drug Administration needs broad authority to regulate the 
sale, distribution, and advertising of cigarettes and smokeless 
tobacco.
  The tobacco industry currently spends over $9 billion a year to 
promote its products. Much of that money is spent in ways designed to 
tempt children, as I pointed out, to start smoking before they are 
mature enough to appreciate the enormity of the health risk. When you 
get 16 percent of children 12 and younger to start smoking, they 
certainly do not understand the health risks they are going to be faced 
with so that they can make a judgment or decision about the risk. The 
industry knows that more than 90 percent of smokers begin as children 
and are addicted by the time they reach adulthood. If we are serious 
about reducing youth smoking, the FDA must have the power to prevent 
industry advertising designed to appeal to children wherever it will be 
seen by children.
  This legislation would give the FDA the ability to stop tobacco 
advertising which glamorizes smoking where it will be seen by 
significant numbers of children; it grants FDA full authority to 
regulate tobacco advertising ``consistent with and to the full extent 
permitted by the first amendment.''
  The FDA authority must also extend to the sale of tobacco products. 
Nearly every State makes it illegal to sell cigarettes to the children 
under 18, but the survey shows those laws are rarely enforced and 
frequently violated. The FDA must have the power to limit the sales of 
cigarettes to face-to-face transactions in which the age of the 
purchaser can be verified by identification. This means an end to self-
service displays and vending machines.
  We have the chart that will show where cigarettes are being sold. It 
is right next to the candy in stores. This is an average store where 
you see the candy bars. Who eats the candy bars? The children will eat 
this candy. Right above it are all the advertisements for tobacco 
products as well as tobacco products that have the same smell, the same 
scent and taste as candy as well.
  This legislation will give youth access and advertising restrictions 
already developed by the FDA the immediate force of law, as if they had 
been issued under the new statute. There are rules that have gone 
through the process extensively. They are ready to be implemented. This 
legislation provides that.
  Nicotine in cigarettes is highly addictive. The medical experts say 
it is as addictive as heroin or cocaine. Yet for decades tobacco 
companies have vehemently denied addictiveness of their products, and 
no one should forget the parade of tobacco executives who testified 
under oath before Congress that smoking cigarettes is not addictive. 
Overwhelming evidence in industry documents obtained through the 
discovery process proved the companies not only knew of this 
addictiveness for decades but actually relied on it as the basis for 
their marketing strategy. As we now know, cigarette manufacturers 
chemically manipulated the nicotine in their products to make it even 
more addictive.
  Given the addictiveness of their products, it is essential the FDA 
have the authority to effectively regulate them for the protection of 
public health. Over 40 million Americans are currently addicted to 
cigarettes. The FDA should be able to take the necessary steps to help 
addicted smokers overcome their addiction and to make the product less 
toxic for smokers who are unable or unwilling to stop. To do so, the 
FDA must have the authority to reduce or remove the hazardous 
ingredients from cigarettes to the extent it becomes scientifically 
feasible. The inherent risks in smoking should not be unnecessarily 
compounded.
  This legislation will give the FDA the legal authority it needs to 
reduce youth smoking by preventing tobacco advertising which targets 
children, to prevent the sale of tobacco products to minors, to help 
smokers overcome their addiction, to make tobacco products less toxic 
for those who continue

[[Page 15669]]

to use them, and to prevent the tobacco industry from misleading the 
public about the dangers of smoking.
  Now is the time for the Senate to address the critical health issues. 
The interest of tobacco State members in passing a tobacco farmers 
buyout provides a golden opportunity. By joining a strong FDA bill with 
relief for tobacco farmers, this amendment should receive broad, 
bipartisan support. We can accomplish both of these worthy goals during 
the session. This approach is supported by the public health community 
and by the farmers' organizations. Most importantly, it is the right 
thing to do for America's children.
  (Disturbance in the Visitors Gallery.)
  The PRESIDING OFFICER. Order will be restored in the gallery.
  Mr. DeWINE. I thank my colleague for his very strong statement. 
Again, I congratulate him for all his great work. He has been just a 
wonderful advocate. His advocacy for this issue goes back many, many 
years.
  Let me yield to my friend and colleague from Virginia just for 2 
minutes.
  Mr. WARNER. Mr. President, I thank the distinguished manager. I 
commend him, Senator Kennedy, and many others who have worked on this 
legislation which I wholeheartedly support.
  We are privileged to have, in my State, a number of tobacco farmers 
who are enduring extraordinary economic hardships. Also, I serve on the 
committee on which serves the distinguished manager of this 
legislation, the Health Committee, as it relates to the Federal Drug 
Administration.
  I understand you have coupled the two together.
  That has been the objective of our committee some several years now 
during which we have looked at this, and the two will be put together. 
I once again indicate my support and accommodation to those who made it 
possible.
  Mr. President, I speak today with a great deal of anxiousness and 
anticipation. As a result of the World Trade Organization's finding of 
U.S. noncompliance with international trade obligations, retaliatory 
tariffs have been exacted on U.S. exports. Each month these tariffs 
will increase until Congress passes the FSC/ETI bill. The costs to the 
American economy can be avoided. I am pleased that we can pass this 
bill today and am hopeful that it can move swiftly through conference.
  Oftentimes things move at a glacial pace here in the U.S. Senate. But 
if there is one thing I have learned in my many years as a Member of 
this institution, it is that there are rare instances that the pace 
becomes so swift that one could miss something if he or she were to 
blink. The announcement that we would return to consideration of the 
FSC bill with an amendment on tobacco may have struck many of us as an 
indication that today was to be one of those days. However, today is 
just the next step in the long journey for many of us in this room.
  For a number of years I have worked with many of my colleagues in the 
Senate and Members of the House of Representatives to address an issue 
of vital importance to the rural communities of the South. We have met 
with our farmers, drafted numerous pieces of legislation, consulted 
with experts in economic and agriculture policy--and we have done it 
over and over again. Today, the Senate finally stands poised to speak 
as a body to end the outdated tobacco quota system.
  Our tobacco-growing communities, long dependent on the cultivation of 
tobacco, have been devastated by foreign competition and the quota 
system that keeps the price of leaf artificially high. The amendment 
submitted by the Senator from Ohio contains language from a bill 
crafted by a coalition of members from the tobacco farming States of 
Kentucky, North Carolina, Tennessee, South Carolina, Georgia, and 
Virginia. The Tobacco Market Transition Act will end the current 
tobacco quota system, provide compensation to growers and owners of 
quota, and provide grants to States and institutions of higher 
education to reduce community reliance on the production of tobacco.
  I have been a member of this body for 26 years and can say without 
equivocation that for the farm communities of southside and southwest 
Virginia there is no more important national policy. I can also say 
that not much is more controversial and polarizing than tobacco 
legislation. There are concerns with a buyout that ``makes farmers 
instant millionaires,'' or that it raises taxes, or that it imposes a 
cost to the general treasury. I am pleased to say that this amendment 
does none of those things.
  Still, many have stated that a buyout will not pass the Senate 
without being coupled to legislation specifically giving the Food and 
Drug Administration the authority to regulate tobacco products. While 
these two policy goals have for years seemed mutually exclusive, 
sometimes in the legislative process major national needs that appear 
to be in conflict come together to forge a comprehensive national 
policy. Such is the case today, as we consider both a tobacco quota 
buyout and FDA regulation of tobacco as part of one amendment.
  While many tobacco farmers vehemently opposed FDA regulation of 
tobacco not even 10 years ago, the issue has evolved since then. Today, 
the simple fact today is that most tobacco farmers support FDA 
regulation so long as it is coupled with a tobacco quota buyout. That 
has certainly become the predominant view of Virginia tobacco farmers 
who I have spoken with over the last several years. And, that is 
clearly the view of several groups who represent growers in my State. 
The Virginia Farm Bureau; the Virginia Tobacco Growers Association; the 
Virginia Sun-cured Growers Association; the Virginia Dark-Fired Growers 
Association; the Virginia Agricultural Growers Association; Allies for 
Tobacco, Inc.; and Concerned Friends for Tobacco all have signed on to 
a set of core principles stating that it is in the best interests of 
the public health community and the tobacco producer community for the 
FDA to have authority to establish fair and equitable regulatory 
controls over tobacco products.
  But not only has the farm communities' position on FDA regulation of 
tobacco evolved over the years, so has the position of the largest 
tobacco company in the United States, if not the world. Less than 10 
years ago, Phillip Morris actively opposed efforts to grant the FDA 
authority over tobacco. Today, that same company, now known as Altria, 
which is headquartered in the Commonwealth of Virginia, is actively 
supporting legislation to grant the FDA the authority to regulate 
tobacco.
  What we have seen over the last 10 years is an amazing coming 
together of public health advocates, tobacco farmers, and a major 
tobacco company. Many in the Congress have helped lead the way. The 
amendment that stands before us is the culmination of the hard work of 
many, including Senators Frist, McConnell, Kennedy, DeWine, and the 
chairman of the HELP Committee, Senator Gregg, who always helped keep 
this issue on the committee's agenda. My colleague from Virginia, 
Congressman Tom Davis, also played an important role.
  The compromise that has been reached in the Senate is an important 
one not only because, as I stated earlier, it will provide the help 
that our tobacco farmers so desperately need. It is also important 
because it will improve our public health. And that second point is an 
important one to me.
  You see, my father was a doctor. He was a surgeon gynecologist, and 
he dedicated his life to medical research. Much of his research was 
spent on efforts to eradicate cancer. Ironically enough, though, it was 
ultimately this same devastating illness that my father worked so hard 
to find a cure for that ultimately took his life.
  So, as I think about my father today, I know that he is smiling down 
because the Senate is about to pass a bill that could help reduce the 
cases of cancer and reduce the number of premature deaths in this 
country related to tobacco.
  We know that smoking is one of the foremost preventable causes of 
death in the United States. It is estimated to cause over 400,000 
deaths in America

[[Page 15670]]

each year. That is why we have warning labels on cigarette packages and 
public awareness campaigns against smoking. The dangers of smoking are 
clear.
  The bill before us today will help us reduce those dangers in many 
ways. Most notably, in my view, is the modified risk section, which I 
believe is the hallmark of the FDA portion of this amendment. This 
section provides the FDA the authority to approve modified risk tobacco 
products that reduce harm of tobacco-related disease and benefit the 
public health. With the imprimatur of the FDA, current users of high-
risk tobacco products could be encouraged to use these reduced risk 
products. And, as they move down the continuum or risk with the 
products they use, we should see a corresponding decrease in the number 
of tobacco related illnesses as well.
  While the public health benefits of this amendment are strong, it is 
also very important to make clear that the FDA legislation before us 
today is balanced. I worked extensively with Senator DeWine and Senator 
Kennedy to make sure of that. For example, this legislation will in no 
way restrict the rights of adult Americans who wish to smoke or use 
other tobacco products. At my request, and the request of others, 
Senator DeWine and Senator Kennedy modified their original legislation 
to make it clear that the FDA would not have the power to ban all 
cigarettes and other tobacco products. Under this amendment, that power 
is reserved to Congress, where it properly belongs.
  Today we take a great step to protect the public health of all 
American citizens and the economic health of our tobacco farmers, their 
families, and their communities. The passage of this amendment is a 
great triumph for this body and represents the spirit of legislative 
cooperation and compromise that has long been the cornerstone of this 
institution. It is my sincere hope that we can soon celebrate the final 
conference report for this bill and the inclusion of the amendment on 
which we vote today.
  Thank you, and I yield the floor.
  Mr. DeWINE. Mr. President, I thank my colleague for his support and 
for his very good statement.
  I yield at this time to my friend and colleague from Kentucky.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. BUNNING. Mr. President, I rise today in support of the FSC/ETI 
bill that will end tariffs on our manufactures. But also, it will 
finally bring much needed relief to the tobacco growers of my State.
  The bill before the Senate today addresses many important tax issues 
that face American companies, both at home and abroad.
  The many international provisions that are contained in the bill are 
important changes to a badly outdated part of the Tax Code.
  The centerpiece of this bill, of course, is a provision to expand tax 
incentives to America's manufacturing sector. During debate on this 
bill, I was pleased that we adopted the bipartisan amendment that I 
offered with Senator Stabenow.
  Under our amendment, America's manufacturing companies--small and 
large--will see their tax rate decline by almost 1.5 percent this year. 
That is compared to the rate cut this year of only one-third of 1 
percent that was previously contained in the bill. It is imperative 
that we get this relief to our U.S. manufacturers as quickly as 
possible.
  We were also able to include in this bill my amendment to extend the 
net operating loss period to 5 years rather than the 3-year period 
included in the original bill. This important provision, which will 
allow companies facing financial challenges to see increased cash flow 
to assist them in investing and hiring, is one that Senator Conrad and 
I have worked on together in committee.
  The WTO ruling on the FSC-ETI regime authorized the European Union to 
start imposing sanctions of over $4 billion on U.S. exports. During the 
first month of tariffs we have seen products from apparel to paper hit 
with penalties approaching 10 percent. Many other products important to 
my State, such as horses, are on the initial retaliation list and will 
also face this tariff.
  They have a list of over 1,600 U.S. products from nearly every part 
of the U.S. economy that will be penalized because we have not repealed 
the FSC/ETI regime.
  But most importantly, this amendment will help my tobacco growers.
  Since Daniel Boone first came through the Cumberland Gap, farming has 
been both the economic and cultural backbone of the Commonwealth. The 
family farm is the basis of Kentucky culture and it has been based 
around tobacco.
  For years we in Kentucky have tried to diversify from the tobacco 
crop.
  We have had some success, vegetables, beef cattle, cat fish, corn, 
chicken and other crops have been quite successful, worm farms and 
other have not been as successful. But nothing brings as much as a 
return as tobacco.
  Most of the tobacco farmers in my State are not full-time tobacco 
farmers. They either have an off-farm job, or primarily raise other 
crops or raise livestock.
  But the money they get from tobacco, pays their mortgage, or puts 
their kids through school or allows them to keep farming. Outside of 
the western part of Kentucky, we do not have tens of thousands of acres 
of flat land. We need a crop that grows on rolling hills and that 
thrives in our climate. Tobacco does that.
  But a number of things have conspired against tobacco in the last few 
years.
  The previous administration declared war on tobacco and by extension, 
tobacco farmers. The Asian economic crises have hurt exports. The 
Master Settlement Agreement and State tax increase have dramatically 
raised the price of cigarettes. And although American tobacco is still 
superior, the companies have invested so much overseas that the gap has 
narrowed between American tobacco and cheap foreign tobacco.
  As I am sure most of my colleagues know, there are no direct payments 
to tobacco farmers, but we do have a price support and production 
control program. Growers own quota which they can buy, sell, or lease. 
The government administers this program to make sure it runs 
effectively and that growers only sell what they are allowed to under 
the quota system. If you grow too much, you can't sell it.
  But the quotas have lost 60 percent of their value since 1998. Not 
many businesses would be around if they lost 60 percent of their income 
in 5 years, and we have lost a lot of growers. We have many who are 
barely holding on. They need help, we can give that to them and get the 
government out of the tobacco business at the same time.
  We don't have big tobacco in my State. The last big tobacco company 
pulled out a few years ago.
   What we have is little tobacco. We have over 30,000 tobacco growers. 
We also have over 100,000 tobacco quota owners. Many of those are 
elderly who can no longer work their land, so they lease their quota 
and that income becomes a major part of their retirement security.
  That quota is tied to the land. It has a direct effect on the 
property taxes Kentuckians pay.
  Those taxes build and fund schools, provide clean water, pay for 
emergency services, pave roads and help fund every community in 
Kentucky. If we don't help my growers get relief, we face the very real 
prospect of having ghost towns in Kentucky.
  The amendment we have before us today will buy out the tobacco 
program.
  We will give our growers relief and end the federal price support 
program. We will also let many growers, whose average age is 62, retire 
and get out of the business. Dr. Will Snell, of the University of 
Kentucky, estimate 70-75 percent of tobacco growers will get out of the 
business with a buyout. We will allow growers to pay off their debts 
and enjoy their retirement.
  The amendment also has FDA Authorization of tobacco. This is a 
dramatic increase in the regulatory authority of the FDA.
  I am not comfortable with it. I do not want the FDA inspecting my 
growers' crop.

[[Page 15671]]

  FDA regulation is a bad idea. My growers are in dire straits. They 
desperately need help. FDA regulation is a very steep price to pay for 
a buyout, but if it is the only way to get my growers relief, this 
Senator will vote for it.
  Make no mistake about it, the program will end. The only question is 
whether we end it on our terms or big tobacco terms. Please, please 
support the tobacco growers in this country and give them an equitable 
solution for the little tobacco growers all across this country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I thank my colleague from Kentucky for his 
very good statement. I assure my colleague that with the language which 
has been drafted in the FDA section, we have taken certainly one of his 
concerns into consideration and the FDA is not allowed on the farm. 
There is protection in there. I appreciate his comments.
  I ask unanimous consent to add Senator Collins as a cosponsor of this 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, one of the very enlightening aspects about 
this legislation, the FDA part of this legislation, is how many of the 
editorial writers--not just in the national papers but many of the 
papers throughout the country--have weighed in on this issue and they 
have done this very eloquently. Frankly, they have been more eloquent 
about this than I have been in the Senate.
  I will take a couple of minutes and read what some of the editorials 
have said about this issue. I start with the Lexington Herald Leader, 
Lexington, KY, May 21 of this year.

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

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

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

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

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

  This issue is of concern. This was not what we were looking for. 
Looking at it is enormously important. Those under that view will have 
assurances from the Senator from Ohio. Not only our assurances but the 
legislative assurances that the FDA is not in any way going to have any 
role whatever in dealing with any of the producers themselves, the 
farmers.
  Mr. DeWINE. I thank my colleague for the question. I am looking at 
the same language. He read it correctly. It is directly in the 
amendment. It was originally in the bill that my colleague from 
Massachusetts and I wrote and introduced.
  I have penciled in here ``FDA can't go on the farm,'' which is a 
shorthand version of what he said. But actually it goes further than 
that. It is not just on the farm but it is basically any kind of FDA 
interference in this area.
  In earlier versions, years ago, the bill may have given my colleague 
from Kentucky something to worry about but this version clearly makes 
it abundantly clear the FDA cannot do this. I am glad my colleague has 
pointed this out.
  I have other editorials I can read but I see my colleague from 
Illinois is in the Chamber. If he is ready to speak, I am more than 
happy to yield him time.
  Mr. DURBIN. I thank the Senator from Ohio. I don't know how much time 
is remaining. I don't want to take too much.
  Mr. DeWINE. I inquire of the Chair how much time remains.
  The PRESIDING OFFICER. Thirteen minutes remain.
  Mr. DeWINE. Mr. President, I say to my colleagues, the Chair, and to 
my colleagues in the Chamber, I have only had one Senator come to me 
requesting time in opposition. I probably would propound a unanimous 
consent request to take some time from the opposition with the 
understanding that--I have not done that yet--anyone who wants to speak 
in opposition, obviously, we would make that time available.
  I yield 10 minutes to my colleague from Illinois.
  Mr. DURBIN. Mr. President, I thank the Senator from Ohio and the 
Senator from Massachusetts for their leadership.
  This is an issue which hits close to home for many Americans. It is 
an issue we have faced in our families where people we dearly love have 
been victims of tobacco-related disease. It is an issue which we face 
every day in America when children make the decision to start using 
tobacco products--either spit tobacco or cigarettes--and become 
addicted, and one out of every three of those children who choose the 
addiction will die from it. That is a reality.
  Tobacco is still the No. 1 preventable cause of death in America 
today. It is preventable if we do our job, regulating the product.
  The bill before the Senate says we will give to the Food and Drug 
Administration the authority to regulate tobacco. The Food and Drug 
Administration operates under a law which specifically excludes 
tobacco. It said tobacco is neither a food nor a drug. It falls between 
the cracks.
  So the Food and Drug Administration has the responsibility, when it 
comes to macaroni and cheese, to make sure it is wholesome, to make 
certain it is safe, but it does not have that same opportunity or 
authority when it comes to Marlboro cigarettes or any other package of 
cigarettes. When you look at the back of the macaroni and cheese, it 
states the contents and ingredients. You can look all over the Marlboro 
cigarette package and you will never figure out what is in it. It is 
more than just natural tobacco. There are a lot of chemicals in here, 
and these chemicals are harmful.
  What Senator DeWine and Senator Kennedy do today is to call us 
together and say, finally, after so many years--40 years of being 
convinced that tobacco causes cancer, heart disease, stroke, lung 
problems--after all these years we are going to give to the Food and 
Drug Administration the authority to regulate this product.

[[Page 15672]]

  This is not a radical idea. This is common sense. Mr. President, 15 
years ago, as a Member of the House of Representatives, I offered an 
amendment to ban smoking on airplanes. It was an amendment that was 
opposed by the tobacco lobby, opposed by the leadership, Democrat and 
Republican, in the House of Representatives, and no one thought I had a 
chance. But I won, and I passed it. It became the law of the land. Now, 
if you went into an airplane and said: ``Incidentally, we decided to 
change the rules. Anybody who wants to smoke, go ahead,'' people would 
just stand up and say: ``Are you crazy? Secondhand smoke can kill you. 
We're not going back to those old days.''
  What Senator DeWine and Senator Kennedy are doing is telling us: Look 
forward to a future where we start making commonsense health decisions 
that are going to save the lives of millions of Americans.
  Now, what is going on politically here? Sadly, there is an effort 
coming out of the House of Representatives to put together an $8 or $9 
billion buyout of those who have tobacco allotments in America. It is 
an old piece of agricultural law that some people were able to claim 
the right to grow tobacco and be given a Government allotment. It is 
the closest thing to being given some title or royalty that you can 
imagine because those folks are then entitled to grow tobacco and have 
special treatment under the law.
  What they have said is, if we want to end this program, you have to 
pay us to end it. We have made money over the years with it, but you 
have to pay us to end it, $8 or $9 billion.
  Well, I swallow hard when I think about that notion of giving $8 or 
$9 billion from hard-working taxpayers across America to these tobacco 
growers. But I finally was brought to the conclusion that if that is 
the only way we can get FDA regulation of tobacco products in America, 
all right, I will buy that compromise. It is a painful compromise to 
think of that much money, but that is the reality.
  What we have today with this proposal from Senator Kennedy and 
Senator DeWine is to move us in the direction of what we need: to put 
into FDA law the power to regulate tobacco; for the first time in our 
history, to give the Food and Drug Administration the authority to 
restrict tobacco advertising.
  Cross the border into Canada and look at a package of cigarettes. 
There is a clear warning--not the worthless warnings we have been stuck 
with for four decades--clear warnings that might give somebody some 
pause before buying this dangerous product. Our FDA ought to have that 
same authority.
  We also need more authority to aggressively stop the sale of these 
deadly tobacco products to our kids. The Food and Drug Administration 
can do that, but they need the authority to do that.
  We also need to make sure the Food and Drug Administration has 
stronger warning labels that prevent the tobacco industry from making 
terrible misrepresentations about their product.
  Do you remember ``light'' cigarettes--lower in tar, lower in 
nicotine, and so forth? It turns out it was a complete fraud on the 
public. A class action lawsuit brought against the tobacco companies 
disclosed that they knew they were lying to the American consumers but 
did it anyway. They made so much money at it they were going to do it 
anyway.
  Well, they were nailed with a lawsuit that a lot of people are 
talking about. But it is because of their deliberate misrepresentations 
about the facts of their product that they were nailed by this lawsuit.
  The passage of this law gives the Food and Drug Administration the 
right to police tobacco advertising, to make certain they do not lie 
and mislead American consumers.
  It also sets standards for reduced-risk products. There is a lot of 
research going on here. I do not know if it will lead to anything 
positive, but it leads us in the right direction, as far as I am 
concerned.
  I know there are others on the floor who want to speak. I am happy to 
cosponsor this measure. I believe this is a historic moment that the 
Senate has a chance to acknowledge what the tobacco companies 
themselves have acknowledged. When they entered into an agreement with 
the States' attorneys general across America, they acknowledged that 
the Food and Drug Administration needed to have the authority to 
regulate their product. A major company, Philip Morris, has come 
forward and said they accept that. They are prepared to accept this 
proposal from Senator DeWine and Senator Kennedy. Now we have a chance 
to put it in law.
  What we are going to do with this legislation is save lives in 
America. We are going to reduce the incidence of pulmonary disease, the 
incidence of disease and stroke and heart attack and death associated 
with tobacco.
  If we did nothing else in this session--and we may do nothing else--
this is the single most important thing we can do to make America a 
healthier place and to give our kids a fighting chance. I stand in 
strong support of this proposal by Senator Kennedy and Senator DeWine.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I ask unanimous consent that Senator Snowe 
be added as a cosponsor of S. 2461, the Family Smoking Prevention and 
Tobacco Control Act.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, I see my colleagues on the floor. Before I 
yield time, I want to read one more editorial. As I said, to me, it is 
interesting how the editorial boards across this country have spoken 
out about this bill, and I think have done so very eloquently.
  On June 19, 2004, the Cleveland Plain Dealer wrote as follows in 
their editorial:

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

  Mr. President, I yield to my colleague, Senator Reed from Rhode 
Island.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I commend and thank my colleague Senator 
DeWine and my colleague Senator Kennedy for this legislation. They have 
been in the vanguard for many years of protecting the health of all 
Americans, but particularly protecting the health of children. I have 
also been active, along with Senator Durbin and others, in this effort.
  Actually, in August of 1996, the FDA promulgated rules to regulate 
the tobacco industry. But these rules were litigated to the Supreme 
Court. In a very closely divided decision--5 to 4--the Court 
essentially said: Congress, you must make it clear that the FDA has the 
authority to regulate the tobacco industry. That is what the DeWine-
Kennedy amendment is doing--making it very clear, very explicit that 
the Food and Drug Administration may regulate the tobacco industry.
  Now, there was a question about the law, but there was no question in 
the minds of the Justices about the effect of tobacco as a public 
health issue. Justice Sandra Day O'Connor stated, in her majority 
opinion, that tobacco was ``perhaps the single most significant threat 
to public health in the United States.'' Justice Breyer, who was in the

[[Page 15673]]

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

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

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

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

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

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

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

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

  The Akron Beacon Journal continues:

       It has been four years since the U.S. Supreme Court told 
     the Food and Drug Administration and its commissioner at the 
     time, David Kessler, that Congress had not given the 
     authority to regulate tobacco products. Congress has an 
     opportunity to fill the void through bipartisan bills 
     recently introduced in the Senate by Ohio's Mike DeWine, a 
     Republican, and Democrat Edward Kennedy,

[[Page 15674]]

     and in the House by Tom Davis, a Virginia Republican, and 
     Henry Waxman, a Democrat from California.
       This legislation would grant the FDA the necessary 
     authority, none too soon, to protect the public health and 
     guard children, in particular, against addictive and risky 
     tobacco use.
       Among other provisions, the legislation would give the FDA 
     approval authority over all new tobacco products entering the 
     market, bar the use in tobacco products of flavors that are 
     enticing to children, and restrict advertising and promotions 
     that target children. It also would require companies to 
     provide research information for claims on reduced-risk 
     products and to submit a list of product contents and 
     components, including the paper and filters.

  This is an editorial from the Akron Beacon Journal, June 28, 2004.
  Mr. President, we are getting close to the end of this debate. I say 
to any of my colleagues who have any desire to come to the floor of the 
Senate and argue in favor of this amendment or come to the floor and 
argue in opposition to the amendment, we are getting close to closing 
out this debate. I invite them to come to the Senate floor. We are 
getting very close to coming to the end of the debate. Now would be the 
appropriate time to come to the floor.
  At this point, I yield to my colleague, Senator Lautenberg.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. LAUTENBERG. Mr. President, I thank my colleague from Ohio for the 
good work he so often does on behalf of the safety and well-being of 
young people. Therefore, it is no surprise to see Senator DeWine 
sponsoring or creating this kind of amendment--something that can 
markedly affect the well-being of children in our society in general.
  I want to lend my support to the DeWine-Kennedy amendment, to see if 
we cannot finally get past these years of delay and obstruction, to 
permit the FDA to have jurisdiction over tobacco products. It is long 
overdue, and I am hopeful that the Senate will take this historic step 
today.
  There are very few people my age who weren't induced to smoke by all 
kinds of influences. When I was a soldier many years ago in Europe 
during the war, the thing we used to look for in our emergency pack was 
the little packet of four free cigarettes. We never realized it, but 
the military was marketing for the cigarette companies, because once 
someone had a few cigarettes, that was it for almost a lifetime. 
Nothing, other than perhaps some illegal drugs, illicit drugs, such as 
cocaine, is more addictive than tobacco. Perhaps even they don't 
compare.
  I used to smoke. I smoked a lot. Fortunately, my youngest daughter, 
who was about 7 years old at the time, had more sense than I did. She 
said to me: Daddy, today we learned in school that if you smoke, you 
get a black box in your throat.'' She said, ``I love you; I don't want 
you to have a black box in your throat.'' That was after dozens of 
times that I tried to stop smoking. I smoked for 25 years. There were 
dozens of times I swore I would stop smoking and never could quite 
muster the energy or conviction to do it. But when she gave me that 
message, within 3 days I was no longer smoking. All I had to do was 
remember how her eyes looked at me so pleadingly and said, ``Daddy, 
stop smoking.'' That was it for me.
  When I came to the Senate, I was determined to do something where I 
might be able to protect Americans, especially our young people, from 
the dangers of tobacco. I am pleased to have worked on tobacco control, 
starting long before it became a mainstream issue.
  In 1987, along with now-Senator Durbin, formerly Congressman Durbin, 
we authored the law banning smoking on airplanes. It was a tough fight 
and it was said, ``You will never get it done.'' But we persisted and 
convinced a lot of people that changing the rules about smoking in 
airplanes was worthwhile. It had a long, arduous trip. First, we were 
able to negotiate for 3 hours, or 2 hours, and settle for 2 hours, with 
a promise that we would examine the result and maybe change our minds 
in 18 months and relent.
  I had a friend in the tobacco business, and one day he said to me, 
``Frank, come on, this hasn't been proven dangerous yet.'' This goes 
back to the 1980s. I said, ``I'll tell you what. If you can convince 
your father and the other members of your family to start smoking and 
confirm that they smoke two packs a day, and do it for a year, I will 
call off my opposition.'' Obviously, that never happened. They knew how 
dangerous tobacco was, as did the manufacturers of tobacco products 
going back to the 1930s.
  The addiction and the harm that comes from nicotine was widely known 
by the people in the industry, again, in the 1930s. We saw that once 
nonsmokers could experience a smoke-free environment in the cabin of an 
airplane, they began to demand it in more places than that. It changed 
things radically for people who were unable to fly because they had 
respiratory conditions. And they learned something. If cabin attendants 
who didn't smoke were on a flight, they learned that the nicotine 
residue could last for many days after in their body fluids. So it was 
pervasive. The attitude on tobacco began to change radically.
  I had an opportunity to write further law, and I put into the 
statutes a law that required that any building that children inhabited, 
whether it was a library, hospital, youth hostel, daycare center, could 
not have any smoking present unless it was in a confined room, a single 
room that was ventilated to the outside, as long as Federal money was 
being given there. That succeeded in turning into law and protecting 
our children even further.
  I have long supported FDA jurisdiction over tobacco--a milestone I 
hope we will reach today.
  Mr. President, make no mistake, tobacco addiction is still a huge 
problem in America. Tobacco continues to be the No. 1 cause of 
preventable death and disease in our Nation.
  Each year, tobacco claims over 430,000 lives in the United States and 
serious health impairment occurs as a result of tobacco--emphysema, 
heart trouble, all kinds of terrible conditions associated with 
tobacco.
  According to the Centers for Disease Control, if current tobacco use 
continues in the United States, an estimated 6.4 million children will 
die prematurely from a smoking-related disease. This is alarming 
because every day nearly 5,000 young people buy cigarettes for the 
first time.
  Once again, that addiction is enormous. In addition to the human 
costs, huge economic costs occur in our Nation. It is estimated that 
direct medical expenditures attributed to smoking total now more than 
$75 billion each and every year.
  Despite all of this, the Food and Drug Administration has not been 
able to take action to reduce tobacco's harm on society. By way of 
example, right now the FDA, as we have seen on a poster displayed here, 
can regulate a box of macaroni and cheese but not a pack of cigarettes. 
If you want to know the ingredients in macaroni and cheese, it is on 
the label. But for cigarettes, there is scant information on 
ingredients, toxins, chemicals, et cetera. It makes no sense.
  Today, we have worthless health warnings, no control over what 
tobacco companies claim about the relative health effects of their 
products, no authority to curtail tobacco marketing to kids, and no 
ability to order the industry to remove especially hazardous 
ingredients.
  The amendment before us today has the support of the entire public 
health community, including the American Cancer Society, the American 
Heart Association, the American Lung Association, and the Campaign--an 
effective campaign, by the way--for Tobacco-Free Kids.
  Today, we have a historic opportunity to give the FDA the legal 
authority it needs to prohibit tobacco advertising that targets 
children, the authority to prevent sale of tobacco products to minors, 
and the authority to make tobacco products less toxic than they need to 
be, although I am very suspicious about that because there is much 
misleading advertising talking about tobacco light cigarettes, et 
cetera. There is no assurance they are

[[Page 15675]]

less lethal than ordinary cigarettes. We want to give them the 
authority to prevent the tobacco industry from misleading the public 
about the dangers of smoking.
  I join with other colleagues and hope that we can muster enough 
support for this bill to give the U.S. Food and Drug Administration the 
authority it needs to regulate tobacco, as it does other drugs. We owe 
it to families across this country. We owe it to young people who think 
it is going to be a kick, but it is a kick they will remember for the 
rest of their lives once they start.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I thank all the cosponsors of this 
amendment for their good work. Senator Hollings has done an excellent 
job. I congratulate him, as well as the other cosponsors. I thank my 
colleague, Senator Lautenberg, for his very eloquent remarks. He and I 
have worked on issues that affect public safety. He has been a leader 
in highway safety. He and I have been on this floor together and have 
worked on legislation that we hope has saved the lives of children. He 
has been a good partner. I appreciate his comments again today. It is 
good to be working with him again.
  Mr. LAUTENBERG. If I may intervene, Mr. President, for one moment, 
with Senator DeWine's approval, we worked on issues that focus on 
protecting children's health in particular. We want the drunks off the 
highways. We want to get tobacco out of the grasp of children. We want 
them not to be seduced into smoking to look like they are bigshots, 
like they have grown up to a point. I remember the days--and I am sure 
the Senator from Ohio does--when athletes were endorsing tobacco 
products and doctors were endorsing tobacco products. Thank goodness we 
do not have that anymore.
  I commend the Senator from Ohio. I have always enjoyed working with 
him on issues. I pay my respects to his excellent work on this 
amendment. I hope it is adopted.
  Mr. DeWINE. Mr. President, I appreciate my colleague's good comments 
but, more importantly, I appreciate his good work.
  I know from talking to a few of my colleagues that there is some 
reluctance to grant the FDA this authority. I want to make a few 
comments directly to those colleagues.
  I do not think there should be this reluctance. We do not worry about 
having a product, such as macaroni and cheese, that has labeling 
information on it. We have come to accept that. We have come to think 
it is a pretty good idea to know what is in a product. If tomorrow we 
went to the grocery store and all this information on the side panel, 
nutrition facts, was all blank, some of us would think that was rather 
strange. We have come to accept that. We think it is OK. In fact, we 
expect it. It is the right thing to do. We want to know what is in the 
product.
  Every product we buy, from bottled water to macaroni and cheese, we 
know what is in it, every product except tobacco. Every product we 
consume we know what is in it; there is a label; it is regulated, 
except tobacco.
  How did we get here? We got here because there is an anomaly in the 
law. Without going through all the lawyer talk and all the 
constitutional and statutory history, basically the Supreme Court 
looked at Congress and said: If you guys want to change that and give 
FDA the authority to regulate tobacco, too, you have to do it. You are 
the ones who have to do it. That is why we are here today. We are the 
ones who have to do it. It makes sense for us to pass legislation that 
says to the FDA: You go ahead and do it. That is what this is all 
about.
  This is not exactly a radical idea or a revolutionary idea. The only 
reason it sounds strange is we have just never done it before. But it 
is time to do it.
  It is also time, when the tobacco companies make outlandish claims 
about low tar and ultra light, for them to be held to the same 
standards as the macaroni and cheese is or the milk. There are certain 
standards, and when you say the food product is thus and so, it has to 
be thus and so. There are certain standards. It ought to be the same 
way with tobacco.
  Again, all we are saying is they ought to be held to the same 
standards as anything else we put into our bodies.
  We all know that even tobacco, a legal product, if used as it is 
intended to be used, is still dangerous.
  So it still makes common sense to have some regulation and have the 
FDA do it. So this is not a radical, crazy idea. This just makes good, 
common sense. The reason it is in front of us is because the courts 
have said, if the FDA is going to have this authority, it has to be 
given to them and it has to be given to them by statute, and we are 
simply giving it to them by statute. So in a sense, it is a simple bill 
that a quirk in history, a quirk in the law previously, has brought us 
to this point. So we are the ones who are doing it.
  That is one major part of the bill. The other major part of the bill 
is to say we are going to control how they market this dangerous 
product, and there is no doubt it is a dangerous product. That debate 
ended years ago. Legal, yes, but dangerous, yes. We have a right, as a 
society, to control how this dangerous product is marketed to children, 
and we are going to control that within the bounds of the first 
amendment.
  The court is going to confine us to the first amendment. We are not 
going to violate the first amendment because the courts are not going 
to allow us to do that. But we are going to confine it and say there 
are limits. Kids cannot be targeted because it is a dangerous product. 
There is no dispute it is a dangerous product. We know it is a 
dangerous product. We cannot make it illegal for all the reasons we 
know we cannot make it illegal because that just is not going to work. 
Prohibition will not work. But it is dangerous.
  We do not want kids to get addicted. We know that most people who 
smoke today started smoking when they were minors. We know if one makes 
it to 19 or 20 and they have not started smoking they are probably 
never going to smoke in their life. So there is an inherent societal 
interest in not having our kids smoke before they are 19 or 20. If they 
can make it that far, they are probably going to be OK.
  So we have an interest in not allowing these companies to target 
young kids, and we are going to do everything we can within the 
confines of the Constitution, and that is what this bill is trying to 
do and will do.
  This bill will save lives. It will save lives because we are going to 
allow the FDA to do what it can in regard to regulation, and because we 
are going to allow more regulation in regard to advertising a lot of 
lives will be saved by this bill. It is the right thing to do. The time 
for the bill is now.
  I see my colleague from Georgia is on the floor, and I yield to him.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. I thank the Senator from Ohio for yielding me some 
time to talk a about this bill today. I want to talk about three 
things. First, with respect to the issue of smoking, all of us know and 
now understand that smoking is hazardous to one's health. There is 
simply no question about that. That is not even in the debate. 
Fortunately, I am one who has never smoked in my life, but I come from 
a part of the country, as does the Presiding Officer, where tobacco has 
been a mainstay. So I want to talk about the effect of what we are 
doing today is going to have on tobacco-growing regions of our country.
  Tobacco has been a mainstay of the agricultural community since the 
Indians first inhabited this country. Tobacco has been a product that 
has been traded and bartered for literally hundreds of years, both in 
America as well as outside of America. In my part of the country, which 
is a heavy growing tobacco area, it has been the mainstay and the 
staple product of small family farms for literally hundreds of years. 
That is going to be coming to an end, in my opinion, with the passage 
of this legislation.
  The tobacco industry has taken any number of hits over the last two 
decades, and some of it for the right reasons. We need to educate 
people about

[[Page 15676]]

the hazards of smoking tobacco. We need to educate people that if they 
do smoke, it is likely going to kill them.
  The fact is, there are a number of individuals in this country who 
having been educated have still made a conscious decision to use 
tobacco products. The last thing I think we need for the Federal 
Government to do is to intrude further into the lives of Americans and 
say they cannot do this.
  Now, that is one thing we are doing with this legislation. I think it 
goes that far. Maybe not saying one absolutely cannot do it but it is 
pretty well going to limit the number of customers to future tobacco 
growers and future tobacco manufacturers in this country, which means 
that jobs in the tobacco industry are going to be moving out of this 
country and we are going to see a complete overhaul and change in that 
manufacturing sector, as well as in the growing sector.
  I can remember very well in my hometown where we had three tobacco 
markets, and we used to sell all tobacco at the auction market. We 
would have buyers come in every summer and all of the farmers and their 
families would go to the tobacco market on opening day. We would 
literally have an auction bale by bale or pile by pile of tobacco that 
would be bought by one of the tobacco companies and used in the 
manufacturing of various tobacco products.
  As soon as that auction was completed on the sale of the farmer's 
tobacco, he would take his family downtown in my hometown, and this 
happened literally across dozens of other communities in the South, and 
he would buy the family clothes for school that year. The opening day 
of the tobacco markets was a big deal because that is the product that 
provided the income for the family farmer for literally hundreds of 
years in the South.
  Today, it still does. Even though over the years with the attacks 
that have been made on the tobacco industry and we have seen the 
tobacco quota cut in half, our farmers are generating half the income 
today with about double the expenses that they were 20 years ago. This 
is simply because the demand for tobacco has decreased due to Federal 
regulations and because we are seeing imported tobacco replace domestic 
tobacco. This is a result of the price that the farmer needs to receive 
due to the cost of production that he faces each and every year.
  What we are doing today to that farmer is we are going to increase 
the price even more. We are going to make him less competitive and we 
are, as a practical matter, going to drive the American farmer out of 
the tobacco-growing business, which is going to be a change in a way of 
life for many small towns across the South. Is it the right thing to 
do?
  Well, I am not sure everything in this bill, outside of the FDA, is 
perfect, but I do agree with the way we are doing it and the reasons 
why we are doing it. Now I am going to talk about the FDA for a minute.
  What we are saying to the tobacco farmer is, look, we gave you a 
quota that you earned over the years through your growth of tobacco. We 
know you bought this quota in some instances and in some instances it 
was passed down from father to son to grandson. In some instances you 
bought it when you bought the farm. But in any event, a price was paid 
for the ownership of the tobacco quota. Today, we have cut your asset 
that you bought and paid for by 50 percent just in the last 5 years. We 
have taken the ability away from you to generate an income sufficient 
to meet the needs of the quality of life that your family is used to 
living.
  So what we are doing is compensating those farmers. We are going to 
give some money to them for this quota that we have taken away. We are 
now going to take it all away and, even though we did not compensate 
them for that 50 percent they have lost in the past 5 years, we are 
going to compensate them for the remaining quota that they have. I 
think that is a fair and reasonable thing for us to do.
  I have been adamant from the very first day that we engaged in this 
issue regarding the buyout, and I have been working on this for 4 years 
now, but we have been very adamant that the taxpayer ought not to fund 
this buyout.
   I don't think that is right. I don't think we should use money from 
other valuable programs to pay for this buyout. I think it can be 
funded in the right way, by those folks who use tobacco products.
  Is that going to be injurious to the tobacco industry? You bet it is. 
But that is the only way it should be funded in a reasonable and 
rational society in which we live today when you are dealing with such 
a controversial product.
  What this bill does is it provides compensation to the tobacco 
grower, compensation to the quota holder, and the funding of that 
compensation to be paid for by those individuals who use tobacco 
products. That is fair and reasonable, and I support that aspect of 
this particular amendment wholeheartedly.
  Last, I want to talk about FDA. I have been very strongly opposed to 
the inclusion of FDA regulation in any tobacco buyout bill or as a 
stand-alone without a buyout. However, I intend to support this today 
because it is the only means by which we are going to get this buyout 
bill done. I support it because I hope that in conference we are going 
to be able to change some of the provisions that are included in the 
FDA portion of this amendment. I want to mention some of those 
specifically.
  First of all, what we are granting to the FDA in this amendment is 
this: It will grant FDA indirect authority to mandate changes in 
farming practices. This bill places no limits whatsoever on FDA 
authority to reduce or ban compounds found naturally in tobacco leaf. 
Many new mandates FDA is likely to adopt will be achievable only 
through dramatic changes in tobacco farming operations--for example, 
changes in things like types of soils where tobacco may be grown, 
changes in cultivation practices or even curing techniques. If we think 
that by passing this bill we are not going to put FDA on the farm, we 
are wrong. That is simply going to happen.
  Next, the bill would give FDA extremely broad authority to regulate 
advertising, sale, and promotion of tobacco products, thus giving the 
bigger tobacco companies a tremendous advantage over smaller tobacco 
companies. The effect of that is going to be this: Anyone who does 
smoke--and I encourage everybody to quit smoking--but if you are going 
to smoke and you are going to buy tobacco products, when you go into 
the 7-Eleven to buy a pack of cigarettes, they are not going to be 
visible. The only thing you are going to be able to do is either tell 
the proprietor of that store, Let me see all of your tobacco products, 
or you are going to walk in and announce what brand of cigarettes you 
want to buy.
  We all know that name-brand identification is key to marketing of any 
product, particularly when it comes to something like tobacco. The 
bigger companies who have been around for years and years and have made 
brand names very popular and very identifiable are going to be the 
successful entrepreneurs and the successful companies at the end of the 
day. The smaller companies that have come into business in the last 
several years do not have a chance. We are telling those companies: We 
are sorry but nobody knows the name of your product, so, in effect, 
nobody is going to walk up to the counter and say: I want a pack of 
that cigarette brand that was started just a couple of years ago. That 
is not going to happen. We are going to put the smaller companies 
totally out of business, in my opinion, and we are going to make the 
bigger companies bigger. They are going to still keep marketing 
tobacco, they are still going to keep selling tobacco, and it will 
continue to have the same harmful effect it has today.
  Again, the FDA should focus on its primary business. It is widely 
acknowledged that the FDA approval process for new drugs is not as fast 
as it could or should be. If the FDA has additional regulations to 
administer to make cigarette products safe, it will no doubt remove the 
primary mandate of ensuring a safe food supply and safe effective 
drugs.
  In effect, what we are going to do with the passage of this bill is 
to put

[[Page 15677]]

the FDA on the fender of every tractor that is driving across a tobacco 
field in the South. It is going to be a new day for a lot of us who 
come from very rural areas where tobacco has been a mainstay of the 
economy of our particular counties and communities. It is not going to 
be a very pleasant day. But on that day, if it is going to happen, we 
need to make sure those individuals who have made it their life's work 
to grow a legal product and send it to a manufacturer to manufacture in 
a legal way will get some compensation to offset the negative impact 
this is going to have on their lives. We need to make sure as we do 
this we do not get unreasonable with respect to the thousands and 
thousands of jobs that are dependent upon this industry.
  Tobacco products are going to be sold anyway. My guess is it is going 
to be manufactured by offshore manufacturing facilities in Europe or 
some other country and shipped into the United States. These jobs are 
going to be lost here and moved to those facilities. If it is going to 
happen, we need to make sure that the individuals at the very lowest 
level, at the grower level, are compensated for the loss they are going 
to have.
  I compliment my friend from Ohio, who has been very open to discuss 
this issue. I know he feels just as passionately about his amendment 
and making sure that we strengthen FDA regulations. I respect that. We 
just happen to disagree on this particular issue.
  But I say, too, my friends over on the House side--Congressman 
Richard Burr from North Carolina, Congressman Jack Kingston from my 
State of Georgia, Congressman Bill Jenkins from Tennessee--that have 
been real stalwarts in making sure they included the buyout provision 
in the FSC/ETI bill, thank you for your hard work. We are here today to 
make sure a buyout is included the Senate bill.
  I am very hopeful in the conference committee, as it moves forward, 
they will look at the result of this FDA regulation. What we as 
conservatives need to think about is keeping the Government out of our 
daily lives on a more regular basis rather than putting the Government 
on the shoulder of every individual in the tobacco industry, more than 
they are today. I believe that is wrong. I do not think that is the 
route we ought to take. But I am going to support this amendment simply 
because it appears that is the only way we can get a buyout that is 
going to adequately compensate our tobacco farmers.
  I thank the Senator from Ohio for yielding the time. I thank him for 
his cooperation in moving this amendment forward.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I thank my colleague from Georgia for his 
statement. Obviously we have a disagreement about the impact of FDA on 
farmers. He knows I do not agree with him in regard to that impact. The 
language of this bill is pretty clear. I believe we have done a good 
job keeping the FDA away from the farmers, but that is certainly 
something we can discuss in the future.
  Let me yield to my colleague from North Carolina who has just come to 
the Senate floor, Senator Dole.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from North 
Carolina.
  Mrs. DOLE. Mr. President, significant progress has been made toward 
achievement of a tobacco quota buyout which our farm families and rural 
communities in North Carolina and other tobacco-producing States so 
desperately need. A few weeks ago, thanks to the commitment and hard 
work, in particular, of Richard Burr and Mike McIntyre from the North 
Carolina delegation as well as Chairman Thomas and House leadership, a 
tobacco buyout passed the floor of the U.S. House of Representatives. 
Today, we have the historic opportunity to get a tobacco buyout across 
the floor of the U.S. Senate. I thank Senator McConnell for his 
legislation and his leadership in bringing us to this point.
  Why should we go along with the tobacco buyout on the FSC/ETI bill? 
Why is a buyout necessary? Because the status quo is simply not an 
option. If nothing happens this year, according to noted agricultural 
economist Blake Brown, tobacco families and farmers face a 33-percent 
cut in quotas for the 2005 crop year.
  Let's take a look at how we got where we are today. Look at this 
chart. By 1996, tobacco farmers had experienced 7 straight years of a 
stable and significant supply of quota. In 1997, quota increased 12 
percent, leading many farmers to expand their operations. Barns were 
bought to cure more tobacco, equipment was bought to replace that which 
was worn out, and land and quota was bought to make their operations 
more efficient. Significant amounts of money were borrowed to make 
these investments.
  Since 1997, quota has dropped almost 60 percent. Farmers still have 
outstanding loans at the bank to pay for quota they no longer have. To 
put this in layman's language, this type of cut in quota is equivalent 
to cutting your paycheck more than half while you are still paying the 
bank for an asset you no longer own.
  The current devastation our farm families and their rural communities 
face is certainly not of their making. The current tobacco program was 
never designed to accommodate the significant changes that have 
engulfed this industry. It is an outdated New Deal program that is 
discouraging purchases of American tobacco by domestic and foreign 
buyers because it has made the United States uncompetitive on the world 
market. Foreign buyers who once looked to the U.S. market are now 
purchasing tobacco from other countries and bypassing the U.S. market 
altogether for their supply.
  The numbers do not lie: The U.S. now accounts for only 7 percent of 
all flue-cured tobacco production in the world. Let me be clear: All we 
are doing under current policy is allowing countries such as Brazil and 
China to reap the economic benefits of worldwide tobacco production. We 
are not reducing overall tobacco production--we are simply allowing it 
to be siphoned off by other countries.
  Let me bring a little more perspective to the buyout of quota. People 
in North Carolina and other tobacco-growing States invested in tobacco 
quota since the 1930's. The Government created this asset--allowing it 
to be bought and sold. As a result, the value of quota makes up a 
substantial portion of many farmers' balance sheets. The value of quota 
is recognized by county governments; it is taxed just like land and 
other assets. In fact, tobacco quota is even subject to the inheritance 
tax.
  It is estimated that more than 60 percent of the tobacco farmers 
today will exit the business entirely if a tobacco buyout is achieved. 
Most are at retirement age, just hanging on a little while longer in 
hopes of being able to pay off their debts. They have hung on and 
continued to produce in hopes that things would get better, knowing 
that if they got out now they would have to sell their farm and 
liquidate other assets to settle up with their lenders. Even with a 
buyout, many will still be short.
  Every week my office continues to receive numerous calls from tobacco 
farm families in desperation. There is a deep feeling of helplessness. 
And all they can do is get on their knees and pray that those of us who 
have been given the privilege of serving in Congress will act--and act 
soon.
  A tobacco quota buyout is sorely needed. It will allow those who want 
to pay off their debts, and who want to retire, the opportunity to do 
so with dignity. The opportunity to know that all they have worked for 
has not been in vain. It will allow the widow whose sole source of 
retirement income is from quota rent and social security the 
opportunity to get a fair return in exchange for the taking of her 
quota.
  If nothing happens this year, these farmers will be forced to give up 
all that they have. After 6 years of loaning on collateral, there is 
nothing left for the banks to do except foreclose, especially with 
another 33 percent cut in quota for the 2005 crop year on the horizon. 
There will be no holding out for just a while longer. This may sound 
like rhetoric to some, but it is the precise truth for countless 
thousands of

[[Page 15678]]

farm families. I have been there to see it and I could not be more dead 
serious about this. Status quo is simply not an option.
  It is absolutely critical that this legislation is achieved this 
year, and I am grateful for the progress that has been made to get this 
bill to conference. I look forward to working with my colleagues to 
ensure that this much needed legislation becomes reality.
  It is either now--or never. These rural citizens--the very ones who 
have helped make this country great--are barely hanging on for their 
very survival. And it is not just them. It is the retailers, equipment 
dealers, chemical and fertilizer dealers and a whole array of small 
local businesses. These are the very small businesses that create the 
majority of new jobs in tobacco-producing States--and jobs that are 
much needed. With enactment of a tobacco buyout, rural communities will 
be able to grow back the jobs that have since left our borders and 
restore hope to countless families who have labored all of their lives 
under the sun to feed and clothe America and the world.
  My State has thrived on traditional industries such as textiles, 
furniture and tobacco. In recent years, thousands upon thousands of 
jobs have been lost--leaving rural economies devastated and creating 
pockets of poverty in many of North Carolina's counties.
  And now, as tobacco farmers and rural communities reach for a life-
line, we have the opportunity to help them. Rather than conceding 
tobacco production to countries such as China, rather than allowing 
foreclosures to thousands of farmers, rather than allowing the negative 
economic ripple effect to be felt throughout rural southeastern 
America, let us do the right thing for our farmers and rural 
communities.
  It is way past the time for us to take action, and getting this bill 
to conference is a very important and critical step.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, I thank my colleague from North Carolina 
for her eloquent comments.
  At this time, I yield time to my friend and colleague from the State 
of Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Thank you, Mr. President. I thank my colleague, Senator 
DeWine, for yielding.
  Let me commend the eloquent remarks of the Senator from North 
Carolina, Mrs. Dole. Her remarks are the same sentiments that I will be 
expressing, maybe not with the same eloquence but with the exact same 
concern we both share for the citizens of North Carolina and Virginia.
  I also thank Senator Chambliss for looking out for the people of his 
State. But most importantly, when we listen to the remarks of the 
Senators from Virginia, from North Carolina, from Georgia, South 
Carolina, Kentucky, and Tennessee, it is common sense why this is such 
an important issue for the people of our States, for our economies, and 
the opportunities for many people.
  I commend Senator DeWine for his efforts in this regard. But mostly I 
want to commend Senator McConnell of Kentucky for his leadership. He 
has worked very hard, along with the others of us in the tobacco-
growing States in this effort to achieve a tobacco quota buyout.
  In the other body, as was stated by Senator Dole, Congressman Burr 
and Congressman McIntyre worked very hard, as well as Congressman 
Virgil Goode from Southside Virginia. I know many of my colleagues have 
said on many occasions that it is all important to be advocating 
policies and ideas that promote freedom, that promote job 
opportunities, and improve the competitiveness of America. That is why 
I think we must equitably find a way to end this tobacco quota system.
  As I said, I agree with the comments of Senator Dole and Senator 
Chambliss who spoke before me. But some people question, ``Why is it so 
important to end this outdated, old, punitive quota system?'' The 
reason it is important is because it is antiquated, it is a restrictive 
quota system which harms the ability of tobacco-growing families to 
earn a living by artificially increasing their costs of production 
because they have to pay the quota holder.
  If you are producing a product and you have added costs per pound, 
those dollars per pound for the right to grow has to go into the price 
for which you sell that product. Otherwise, you keep running a loss and 
you go bankrupt. Senator Dole was talking about the similar experiences 
farmers are having in her State. I know these tobacco-growing families 
are hard-working families in Southside and Southwest Virginia who have 
worked long and hard hours on these farms. Their families have owned 
those farms and those lands for many years. Growing is not easy. You 
have to prepare the soil, you have to get seedlings going, you have to 
plant them at the right time, and you have to tend the crop. You have 
to worry about pests and mold. Then there is the harvesting which has 
to be done, whether it is flue-cured or whether it is a burley tobacco 
which has different harvesting requirements, and then the curing of 
that crop after you have harvested. It is a lot of hard work.
  In Virginia, there is estimated to be about 8,400 tobacco farmers and 
more than 120,000 tobacco-related jobs throughout the Commonwealth of 
Virginia. Virginia is the fifth largest tobacco-producing State. It is 
the second largest manufacturer of tobacco products. Virginia is the 
largest exporter of tobacco products. Clearly, tobacco plays an 
important role in Virginia's economy, agricultural or otherwise.
  These tobacco-growing families and farmers and communities in my own 
State of Virginia, as well as many other tobacco-growing States, need 
this quota buyout to remain competitive in the world marketplace. They 
have to be competitive because our States are not the only places in 
the world that grow tobacco. It is grown all over the world, whether it 
is in South America, Africa, or Asia. Without getting rid of this quota 
system, we stand to lose thousands of jobs at a time when a lot of our 
manufacturing base is being lost to other countries.
  There are provisions--and I know the Senator from Georgia, Mr. 
Chambliss mentioned this--in this amendment which I do not favor, 
specifically, the potentially burdensome oversight by the FDA on 
merchants who sell tobacco products. However, I believe this buyout is 
needed to allow an important element of our American economy to 
survive. This buyout will allow farmers who wish to continue to grow 
tobacco to do so in a competitive environment or at least allow them to 
better compete. If they do not care to grow it any longer, they will be 
able to use this buyout in a way to find a transition to some other 
farming or another line of work, rather than allowing this just to 
continue, which will be a long suffering collapse and disaster 
economically for those families.
  We talk about many of the farmers. One of the farmer's name is Kevin 
Mottley, a fourth-generation young farmer who says he wants to carry on 
with his family tradition. That is something to be proud of. We are 
happy to hear that. Of course, he is talking about a tough situation 
with international competition, but he wrote that, ``With the recent 
cuts in tobacco quotas and prices on other farm commodities down, it's 
harder to keep our farm operating.''
  That is the economic impact on a real farmer, a real person, in 
Virginia. He understands this buyout is not only important for 
individual families; it is also important for the communities that 
depend on the strength of the tobacco-growing segment of our economy. 
The current quota system makes Virginia-grown tobacco less competitive 
versus foreign-grown tobacco. While U.S.-grown tobacco is generally a 
better quality, it does cost much more due to this onerous quota 
system. Thus, the cigarette manufacturers are using or have an 
incentive to use more foreign-grown tobacco.
  As less tobacco is grown, it is less profitable, obviously, to 
growing families in this country and also in their communities and 
counties in which they are farming. If we can achieve this buyout, it 
will make U.S. tobacco

[[Page 15679]]

more competitive, thus positively impacting the economies of rural 
communities and towns.
  Some will grouse about the cost of this buyout. I believe it is fair 
compensation to end this government program. Well, look at how much the 
Federal Government taxes tobacco. There is a 39-cent tax per pack of 
cigarettes. The Federal Government garners about $8 billion a year on 
tobacco taxes. Throw in all the State and local taxes, heck, it is 
around $30 billion. Beginning July 1st, 2005, Virginia cigarette taxes 
will increase to 30 cents a pack. Those that will be hurt by this 
increase are all the businesses along the Tennessee and North Carolina 
borders. Raising those taxes means they will lose sales at those 
convenience stores and country stores.
  The Federal Government gets plenty of money, $8 billion a year, from 
taxing tobacco. We need to realize when farms are hurt, it also hurts 
our economy. When the tobacco farming sector suffers, there are other 
non-tobacco sectors that are affected, as well. The economic losses 
associated with the recent changes in the tobacco sector have resulted 
in the loss of more than 57,000 jobs in the six major tobacco-growing 
States. While the primary sector affected is the tobacco-growing 
sector, losing more than 39,500 jobs, these tobacco sector job losses 
created an additional loss of nearly 18,000 jobs in the non-tobacco 
sectors.
  It demonstrates that the tobacco production prices impact such 
diverse businesses as local farm supply stores, banks, health care 
providers, manufacturers, retail businesses, and many others in the 
non-farm sector in these communities.
  One needs to understand there is no crop that produces the yield per 
acre that tobacco does. When the tobacco quota is reduced, that affects 
all of the money, all of the revenues available within these rural 
communities.
  I have previously stated I am not in favor of FDA regulation. The 
reality, however, is that it has been joined to this measure. It is the 
way that the salutary, vitally necessary quota buyout will be addressed 
today in the Senate.
  I am voting for this because of the quota buyout. I hope the 
conference report--I know Senator DeWine may not have the same hopes 
but I will express my views--I hope the conference report will knock 
out or diminish the harmful impact of FDA on convenience stores and 
advertising consistent with First Amendment rights.
  I have heard Senator DeWine state this will not have an impact on 
growers. I hope it will not have an impact on growers. There may be 
some certain aspects we ought to look at. Maybe it ought to be done 
through USDA in making sure foreign-grown tobacco meets the same 
standard we want for tobacco grown in this country, for pesticides or 
chemicals that are not naturally occurring in the tobacco plant.
  I do believe, however, that we do not need FDA regulation to prohibit 
and protect children from purchasing cigarettes. That is usually the 
argument, that we have to protect the children. That is fine, but I 
think it can be done without onerous FDA regulations. I fear, if FDA 
has regulatory authority over tobacco manufacturers and producers, we 
will end up with decisions being made further away from the people, 
given to officious and meddling regulators. Rarely do I see the federal 
government or any agency resisting a temptation to expand its power. 
Once the FDA has control over tobacco retailers and manufacturers, they 
will be subject to ever changing restrictions dictated by future 
political considerations.
  I do commend the efforts of Senator DeWine and Senator McConnell and 
others who worked on this; I will be voting for this measure to keep 
this bill moving and gaining momentum. It is very important. We are 
taking a major step forward with this measure in making sure our 
tobacco-growing families can be competitive with foreign-grown tobacco.
  It is also important that we understand there are a number of aspects 
in the underlying bill, the JOBS bill, which are important to our 
economy. There are aspects of it I have worked with my colleagues on to 
put in, including the Homestead Preservation Act which helps displaced 
workers who have lost jobs due to international competition. There are 
folks, and many are in the same areas as the tobacco farmers, in rural 
communities who have lost textile jobs. The Homestead Preservation 
provision will help them with mortgage assistance for 1 year to help 
them keep their homes and protect their credit ratings as they work 
toward strengthening and updating their skills and getting back on 
their feet with a new job. That is an important provision.
  There are also provisions that help make the United States more 
attractive for foreign companies to invest and create jobs in this 
country.
  The main point is this is an amendment that advances a long talked 
about, long sought after, absolutely essential provision, the tobacco 
quota buyout, which is so important to people not only in Virginia but 
also tobacco-growing States across this country.
  I am glad, while there may be some differences clearly on the FDA 
provisions, that the Senate has come together and has put forth this, 
on balance, very positive, competitive idea in an amendment. I hope my 
colleagues will vote for it, it will be passed, and we can move to the 
conference committee, and, ultimately, next fall pass this JOBS bill 
which is so important for our country.
  I thank my colleague Senator DeWine and yield the floor.
  The PRESIDING OFFICER (Mr. Ensign). The Senator from Ohio.
  Mr. DeWINE. Mr. President, I thank my colleague from Virginia for his 
good statement. I thank him for his support of the amendment. I just 
say that our hope for this bill, after passage, obviously, is 
different. I hope this marriage continues. He hopes for a divorce. I 
hope the marriage will be a long-lasting one. As I have said earlier, I 
think it will. It is a logical marriage. I think the FDA regulation 
will not be onerous. It is logical.
  I think tobacco farmers will not in any way be burdened by this 
legislation. But the children of tobacco farmers, as well as the 
children of all Americans, will be benefited by FDA regulation, just as 
they are benefited by FDA regulation of milk and macaroni and cheese 
and of every other product we consume. It just makes sense to me, and 
it makes absolutely no sense we would not be regulating products such 
as tobacco. The time is finally here that we will recognize this, and 
the American people will recognize it today, that we should, in fact, 
be regulating a tobacco product.
  At this time, let me yield to my colleague Senator Harkin. Before I 
do that, let me inquire of the Chair, how much time is remaining?
  The PRESIDING OFFICER. Seventeen and a half minutes.
  Mr. DeWINE. Seventeen and a half minutes.
  Mr. SESSIONS. Seventeen and a half minutes total?
  The PRESIDING OFFICER. Seventeen and a half minutes total.
  Mr. DeWINE. Seventeen and a half minutes total is remaining.
  How much time would my colleague from Iowa need? I ask my colleague 
from Alabama, do you seek time as well?
  Mr. SESSIONS. Seven minutes.
  Mr. DeWINE. Senator Kennedy wants some time at the end, I know. He 
told me he wants 5 minutes at the end. I probably will want a minute or 
so.
  I ask the Senator from Iowa how much time he would like.
  Mr. HARKIN. I would ask for 15 minutes, if I could have it.
  Mr. DeWINE. We only have 17\1/2\ minutes.
  The PRESIDING OFFICER. Seventeen minutes.
  Mr. DeWINE. Seventeen and a half, and Senator Lott wants some time.
  Mr. HARKIN. We only have 17\1/2\ minutes left on the whole debate?
  Mr. DeWINE. Seventeen and a half minutes total.
  Senator Lott is going to speak in opposition.
  I ask the Senator from Alabama, are you in opposition?

[[Page 15680]]


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

[[Page 15681]]

right to smoke and have been given that right. To just exorbitantly 
continue to exercise more and more of our ability to put taxes on it is 
not a good idea.
  The regulations in the FDA bill are very troubling. We know there was 
a lawsuit over this issue sometime ago, and the courts ruled that the 
FDA did not have the power to regulate tobacco. As a result of that, we 
now come back with this legislation.
  I know there are some good people involved in this, wanting to see 
this bill pass for various reasons. One group is absolutely committed 
to increased regulation of tobacco, and they don't care if we spend $50 
billion on the buyout. Another group wants a big buyout, and they don't 
care what kind of regulations we put on convenience stores or on the 
sale of this product.
  The net result is an unhealthy deal for public policy in America. I 
wish we had more time to get into it. I am told that the cost of the 
buyout per acre is $20,000. I know Senator Lott has some fine farmland 
in Mississippi. I don't know how much he could buy at $20,000. It would 
be more than one acre, I am sure. He probably could buy land in 
Jackson, MS. I am just kidding.
  I think we are moving in the wrong direction. I want to be on record 
as objecting to this process. I am sorry that it was sprung on us this 
way. It is adding too much. We should not allow this to happen. I hope 
we can make this thing better as time goes by.
  I yield the floor and reserve the remainder of the time for this 
side.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. LOTT. Mr. President, are we still operating under the 3-hour time 
agreement with regard to the tax bill and the tobacco issue?
  The PRESIDING OFFICER. That is correct. The opposition has 
approximately 6 minutes remaining. The proponents have no time.
  Mr. LOTT. Mr. President, I yield myself such time as I may consume. I 
am not sure whether I could be considered pro or in opposition to in 
this particular case, but I do want to be heard on the broader issue 
and also on the tobacco provisions.
  I begin by congratulating and expressing my appreciation to leaders 
on both sides of the aisle for finally coming to an agreement on a 
process that will get us into conference on this important legislation. 
It is unfortunate that it has been delayed for weeks. We should have 
been in conference a month ago or more. Some of the demands about how 
we would go to conference or what would happen in that conference have 
been very inappropriate. One can't preordain what will come out of a 
conference. They can't say that any one person will determine whether a 
conference is reported, whether it is a leader or anybody else. But 
this issue is so important that we need to go into conference. It is 
about some important tax provisions that will help manufacturing, 
service, and our high-technology businesses and workers.
  It is a way to deal with a problem we have caused by a ruling by the 
World Trade Organization saying that our tax provisions, our alleged 
subsidies, were not in compliance with WTO, and we are being penalized 
in an increasing amount each month on a lot of American products 
because we have not dealt with this issue. We should have dealt with it 
a year or two ago, but at least now we will have an opportunity.
  Without rewriting the history, I think we need to get this bill into 
conference. We need to deal with this problem caused by the World Trade 
Organization's ruling, and we need to deal with the funds that are 
available because of that in a way that will help job growth and the 
economy.
  This is all well-intentioned. I have been pushing to go to 
conference. I must say, I am very worried about what is going to come 
out of conference. This bill and the one from the House have acquired a 
lot of barnacles. If you allow enough barnacles to be attached to the 
hull of a ship, it will sink. This one is in real jeopardy of sinking.
  First of all, as has become our pattern in the Congress, we are 
greedy. A bill that should be revenue neutral or should be somewhere 
around $50 billion has become--I don't know how much--$150 billion. How 
far is it going to go? The distinguished chairman of the Budget 
Committee tells me it is $170 billion. We do have a little deficit. 
Anybody notice that?
  Here we have taken a good opportunity to do something good that would 
be responsible in dealing with trade practices and protecting our own 
producers and creating jobs, and we are going to distort it way out of 
proportion. It has become a pretzel. I went along with adding the 
energy tax provisions to the bill. I didn't think that was the way to 
do it; I said so at the time. But it was at least the tax provisions, 
and it gave us some way to maybe deal with the energy needs of the 
country. But that was the first of the barnacles that was added.
  And then in the House, I saw on the media this week where all these 
provisions have been added that will benefit General Electric, that 
would give them additional tax breaks and will contribute probably to 
more jobs going overseas. How did that happen? Did somebody miss that? 
Did it get in there without anybody being aware of it?
  Then the House added about $10 billion for a tobacco allotment 
buyout. I assumed that was just an aberration in the House and that 
Democrats and Republicans would say they are not going to do that and 
we would get back to the basics of this bill. Now the Senate is going 
to join the stampede. We are going to regulate tobacco with the FDA, 
and we are going to have a buyout even bigger. I guess this alternative 
would be paid for by the industry. What in the world is tobacco policy, 
whether it is the amount of the allotment or the FDA, doing in this 
bill?
  I am very worried that this bill is going to--and we are adding to 
the confusion--sink under its own weight in conference, and our 
companies and producers in America will be hit with an ever-increasing 
import fee every month.
  Here is what we ought to do. We need to get a grip, cut out all of 
this unrelated stuff in this bill. Some of it I would have to 
sacrifice, too. I want an energy bill. This may be the only vehicle 
leaving town. I would like to put the entire energy bill, with some 
modifications that may be necessary, in this bill. But this bill, on 
its own, needs to be done. It needs to be done clean. It needs to be 
cut by probably two-thirds. And we need to get all the undergrowth that 
has been added to it off of it.
  If we could do that and still find a way to get an energy bill, a 
highway bill, and a jobs growth bill done without all of the adds that 
are costing billions of dollars, we could go out of this session with 
our heads held high. But we are setting up a box that we may not be 
able to get out of.
  I oppose this proposal on tobacco. I am very much concerned about how 
we are going to get through conference and get this bill down into the 
$50 billion range where it should be instead of $170 billion. We have 
all contributed to the problem. I plead guilty. We all have. But now is 
the time where generally, when you go to conference, you get over your 
temporary political fantasies and you do the right thing. You produce a 
bill that can pass and will help the economy.
  Will we do it this time? I am sure that the distinguished chairman of 
the Finance Committee, who enters the Chamber smiling, can work 
miracles in this conference. I am expecting it and looking forward to 
supporting him in that effort.
  With that, I yield the floor.
  The PRESIDING OFFICER. All time has expired.
  The Senator from Oklahoma is recognized.
  Mr. NICKLES. Mr. President, I ask unanimous consent to speak on the 
FSC/ETI bill for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. Mr. President, most of the speakers have been 
proponents. I compliment Senator DeWine and Senator McConnell for 
getting included this deal. I want to make two or three comments. One 
is on the process. The FDA bill we are now going to vote on--I venture 
to say nobody knows much

[[Page 15682]]

about it because, and correct me if I am wrong, it has not been 
reported out of any committee. The very extensive bill, very important 
bill, has 155 pages of regulations and not 1 paragraph that says the 
FDA has regulatory authority over tobacco. It is a lot of regulatory 
statute proposed to be the law of the land.
  There is a tobacco buyout provision that costs $12 billion. I have 
yet to see the language. Neither of these bills was reported out of 
committee, and neither should have had a time agreement. I wasn't 
consulted on a time agreement on these particular amendments. All of a 
sudden, we find out at 9:30 there is a time agreement and we are 
talking about spending $12 billion--and, oh, yes, you cannot amend it. 
I am kind of offended by that.
  Senator Grassley used to say we should have some kind of limitation 
on payments. We find out, according to some analysis, some farmers will 
make millions of dollars on the tobacco buyout. I would say, wait a 
minute, if we are going to buy out a quota--a quota is a Government 
benefit basically which we have given and which has benefited a few. We 
find out that 85 percent of the quotas go to nonfarmers. I would like 
to have the benefits go to the farmers. We don't have a chance to offer 
that amendment. I would like to say the benefit should be going to 
tobacco farmers. We don't have a chance to offer that. We have an FDA 
bill before us. Senator Gregg has a proposed amendment; I would like to 
offer that or consider it. We don't have a chance to do that. We don't 
have a chance to offer one amendment. Yet we are saying let's add this 
to the FSC/ETI bill.
  I agree with Senator Lott, who says we should pass the FSC/ETI bill, 
and we are held up for weeks after we already passed it on the floor of 
the Senate.
  The House, in my opinion, made a mistake. The House made a mistake 
when they passed FSC/ETI. They put in a $9.6 billion tobacco buyout as 
part of their package. Now we are getting ready to say that two wrongs 
make a right. Since they do it, we will do it, too, except where they 
spent $9.6 billion, we will spend $12 billion. At least, to their 
credit, they got out of the tobacco program when they spend $9.6 
billion. They are going to pay the tobacco farmers and get out of the 
Federal price support program for tobacco. But we don't do that on this 
proposal. We are going to spend $12 billion on supposedly buying out 
quota. Guess what. At the end of the day, you still have a tobacco 
program, a price support program. That is ludicrous. What a waste of 
money. We are going to spend $12 billion and not end the program? I 
cannot imagine doing that. I cannot imagine that we would pay people 
for a quota, most of whom are not farmers, and then we are going to 
continue a price support program at the end of the day. That is in this 
bill. It is all tied together. You don't have a chance to break it 
apart, don't have a chance to amend it. This is very offensive to the 
legislative process. It is very offensive to the taxpayers.
  The regulatory authority I have heard many people bragging on is very 
broad. For example, I don't know if people are aware of it, but maybe 
we want to give the Secretary of HHS a blank check to regulate and/or 
outlaw tobacco. In reading on page 45, it says:

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

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

[[Page 15683]]

will provide the estimated 57,000 tobacco farms in the United States 
the necessary resources to continue their livelihood or transition into 
more diversified operations. The amendment is also a move in the right 
direction in eliminating the archaic tobacco quota system. It is my 
hope that this important provision will enable tobacco producers the 
ability to better compete in a free market system.
  As chairman of the Committee on Agriculture, Nutrition, and Forestry, 
I look forward to working with my colleagues in both the Senate and 
House of Representatives to ensure that farmers in the United States 
who choose to continue to grow tobacco will have that opportunity. I 
urge my colleagues to support this amendment and the underlying bill.
  Mr. ROBERTS. Mr. President, I discuss the amendment we are about to 
vote on. Let me state at the beginning: I am supportive of a tobacco 
buyout for our tobacco producers and quota holders, and I will work to 
help them achieve this goal. However, it should be a buyout without 
strings attached and that will truly end the program.
  Unfortunately, this legislation does not achieve this goal. While the 
bill does provide a buyout, it then implements annual restrictions on 
acreage and production. I have previously stated on this floor my 
opposition to acreage and production controls for all crops and 
commodity programs. This program should be no different.
  I am also concerned that these acreage controls may not be legal 
under our World Trade Organization commitments. If these controls would 
indeed be declared illegal under our commitments, we could be subject 
to a ruling that would put us far above our WTO agriculture spending 
caps. This would not only have significant impacts for tobacco and this 
program, it could have a significant impact on all our commodities and 
farm programs. I cannot support voting for this proposal and putting 
all our other commodities at risk.
  If these provisions were removed, I believe there would be no 
question that this proposed program would be WTO legal, and I would 
have no trouble supporting the buyout. I will let my colleagues that 
serve on the conference of this bill make their own decision regarding 
FDA regulation and the funding mechanism for the buyout. But, I urge 
them to support the House language implementing a buyout with no future 
acreage and production restrictions being put in place.
  Mr. FEINGOLD. Mr. President, I will support the amendment offered by 
the Senator from Ohio, Mr. DeWine, and the Senator from Massachusetts, 
Mr. Kennedy, but in doing so I also want to note my concern about the 
potential for unconstitutional infringement on commercial speech that 
the amendment may engender in the regulations it directs to be 
promulgated to regulate tobacco advertising. There is little doubt that 
the health of our citizens, and in particular the health of our 
children, are a substantial governmental interest. And given that 
substantial interest, some regulation of tobacco advertising may be 
appropriate.
  Further, the amendment appropriately sets forth some safeguards that 
strive to prevent unconstitutional infringement on commercial speech, 
and I commend the authors for including that sensible protection. 
Moreover, in the wake of the Lorillard case in 2001, we now have a 
somewhat clearer legal standard in this area that can guide these 
proposed regulations.
  But the rights spelled out in the first amendment of our Constitution 
are so fundamental to our liberties that we must be especially 
sensitive to the potential for Government overreaching. For that 
reason, while I will support the amendment, I will also be monitoring 
this aspect of the amendment closely as regulations of tobacco 
advertising are developed and implemented.
  Mr. HATCH. Mr. President, I address the DeWine-Kennedy amendment to 
H.R. 4520, the American Jobs Creation Act of 2004.
  Let me say at the outset that I will vote for this proposal tonight, 
because I am fully supportive of measures to end tobacco use in the 
United States. I can think of few public health dangers worse than 
tobacco, and this is especially true for young people. Certainly, in my 
home state of Utah, I hear time and time again from concerned parents 
and health advocates who point out the devastating health consequences 
of tobacco use.
  So, I think it is critical that we go to conference on this issue. 
However, my support for the amendment is not without some serious 
reservations, and I hope they can be addressed and corrected in 
conference.
  My first concern is that the committee of jurisdiction, the HELP 
Committee, should have had the opportunity to consider fully the text 
of S. 2461, the Family Smoking Prevention and Tobacco Control Act, 
which is included in the DeWine-Kennedy amendment, before it is brought 
to the floor for this vote.
  Having been the chairman of that committee for several years, I know 
full well the complexities of the Federal Food, Drug and Cosmetic Act. 
Three hours of debate are not enough time to consider legislation that 
makes such dramatic changes to current law.
  I have only had a short time to review this legislative language but 
I believe there are several troubling components. For example, the 
tobacco company marketing provisions alone in this amendment raise 
serious 1st Amendment issues, as do the provisions granting authority 
to state and local governments to impose specific bans or restrictions 
on the time, place and manner of tobacco advertising. I would have 
preferred we have a more lengthy debate on about the implications of 
these provisions before we vote.
  I also think we need to give serious study to the drafting of the 
language providing the FDA with the authority to regulate tobacco 
products. This area of the law is extremely complex. In addition, I 
must point out that the FDA already has been charged with numerous 
responsibilities and has been criticized time and time again for its 
inability to meet statutory requirements due to funding constraints. In 
fact, just yesterday, I held a hearing in the Senate Judiciary 
Committee on the safety of imported drugs where FDA officials told 
members of my Committee how difficult it would be for them to ensure 
the safety of imported drugs because the agency is already strapped for 
resources. How can we expect the FDA to take on new responsibilities 
without supplying the agency sufficient funding for performing its 
current duties?
  In closing, let me address the tobacco buyout provisions.
  Mr. President, I am all for measures to reduce our Nation's 
dependence on tobacco, and measures to encourage less tobacco 
production are an important part of that equation.
  I am encouraged that the amendment we are considering tonight does 
not use taxpayer funds to accomplish the buyout. That is an important 
point. I also recognize that the program will help get the Government 
out of the farming business while making temporary assistance available 
to farmers as they adjust to the free market. That being said, 
questions worthy of serious consideration have been raised about where 
this assistance will go, and I think we need to study that more.
  Mrs. FEINSTEIN. Mr. President, I rise today to support the amendment 
offered by my colleagues Senators DeWine and Kennedy. The amendment 
they have offered today is the product of many years of hard work and 
leadership.
  The amendment combines legislation to empower the Food and Drug 
Administration, FDA, to regulate tobacco products with Senator 
McConnell's tobacco buyout bill.
  I believe this is the right approach. Last week, seven of my 
colleagues and I wrote to Senators Frist and Daschle to express our 
view that no tobacco buyout plan should move ahead if it does not 
include meaningful and effective FDA oversight of tobacco.
  The 5-year, $9.6 billion tobacco buyout provision in the House FSC/
ETI bill is not only worse for tobacco growers than the McConnell bill, 
but it does nothing to protect public health and to reduce tobacco's 
tremendous toll in health, lives and money.

[[Page 15684]]

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

[[Page 15685]]

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

[[Page 15686]]

  In the United States, over four million high school students are 
current or past smokers--29 percent. Thirty-three percent of South 
Dakota high school students smoke. In South Dakota alone, 5,100 kids 
try cigarettes for the first time each year. Of those, 2,300 South 
Dakotans under the age of 18 become regular, daily smokers each year. 
These numbers are alarming because it is truly a matter of life and 
death.
  Four-hundred thousand people die each year from their own cigarette 
smoking. Forty thousand die because other people smoke. In South 
Dakota, 900 children have lost at least one parent to a smoking-caused 
death. And, in addition to the human cost, there are significant 
financial costs. The total public and private health care expenditures 
caused by smoking in this country total over $75 billion each year. 
Medicare alone has over $20 billion each year in smoking-related 
expenditures.
  Today, we are considering legislation to address this critical public 
health need. I thank Senators DeWine and Kennedy for their hard work on 
this issue. The bipartisan bill we have before us would give the FDA 
the authority to restrict tobacco advertising, particularly advertising 
that targets children. Under this bill, the FDA could prevent tobacco 
sales to children and limit cigarette sales to face-to-face 
transactions in which age can be verified. The bill calls for stronger 
warnings on packaging and allows the FDA to prevent cigarette 
manufacturers from misrepresenting the facts. It would also allow the 
FDA to reduce or remove hazardous ingredients from cigarettes, when 
feasible, in order to help those who are addicted.
  The FDA authorities provided by this amendment are critical to 
reducing smoking, particularly among our children. And the provision to 
assist tobacco farmers are critical to remedy a growing problem. This 
bipartisan amendment represents a true compromise and I urge my 
colleagues to support it.
  Mr. HARKIN. Mr. President, we have a chance today to address one of 
the most significant public health threats of our lifetimes--tobacco 
use. For my entire tenure in Congress I have been working to protect 
our children from big tobacco and the horrendous health risks 
associated with the deadly habit. It was in 1977 that I first 
introduced legislation calling for repeal of the tax deductibility of 
tobacco advertising and marketing so taxpayers would not have to 
subsidize billions to promote smoking. Back in 1998, I introduced the 
KIDS Deserve Freedom Act to give FDA authority to regulate tobacco and 
more specifically set up a plan to cut the number of kids who start 
smoking in half. More recently, I introduced the HeLP America bill to 
reform our health care system to focus more on prevention and wellness. 
It would require tobacco companies to reduce teen smoking rates or 
instead face a stiff financial penalty.
  Unfortunately, victories in the tobacco wars have come few and far 
between. But I am more hopeful now than ever that we can pass a 
comprehensive plan that would once and for all change how this Nation 
deals with tobacco and dramatically cut the number of our kids addicted 
to this deadly product. More that 400,000 Americans die of tobacco 
related illness at a cost of over $100 billion. And the tobacco 
industry has been engaged in a systematic campaign of distortion and 
deceit to hook kids and hide the facts from the American people.
  Our goal is to be on the Senate floor 3 years from now announcing 
that, indeed, child smoking has been cut in half.
  The time is ripe for regulation. Every day, 4,000 children under age 
18 start smoking, of which 1,000 will ultimately die of smoking-related 
diseases. Almost 90 percent of adult smokers started using tobacco at 
or before age 18; the average youth smoker begins at age 13 and becomes 
a daily smoker by age 14\1/2\.
  We cannot wait another day to end these senseless and preventable 
statistics. The Dewine-Kennedy-McConnell amendment will once and for 
all give the FDA the authority they need to regulate this industry 
while at the same time give tobacco farmers the ability to get out. I 
want to be clear, though, there has already been a tremendous amount of 
compromise to get to this deal and this FDA authority/buyout 
combination must be kept together for any FSC conference to occur. But 
the time has come for desperately needed regulation.
  Five years after the multi-billion-dollar settlement with big 
tobacco, I think we can all agree that we still have a great deal of 
work to do to protect our Nation's children from tobacco. While the 
tobacco settlement prohibits television and billboard marketing of 
tobacco and direct advertising to children, the end result has been 
less than perfect.
  The tobacco companies have perceived kids as young as 13 years of age 
as a key market. As an RJR Tobacco document put it, ``Many 
manufacturers have `studied' the 14-20 market in hopes of uncovering 
the `secret' of the instant popularity some brands enjoy to the almost 
exclusion of others. . . . Creating a `fad' in this market can be a 
great bonanza.''
  The tobacco industry spent an estimated $10 billion on advertising 
and promotion in 2001. That is $30 million every day. This number is 
more alarming in light of the fact that this $11 billion is a 67 
percent increase in spending from 1998 when the settlement took effect.
  I suppose the tobacco industry can respond by saying that none of 
this spending was directed specifically at young people. But we do know 
that in 2000, $60 million was spent on advertising in youth-oriented 
magazines. We know that, while promotional items such as t-shirts, 
backpacks, and CD players are ostensibly for smokers over 21 the end 
result is that 30 percent of kids 12 to 17 years old own at least one 
of these promotional items. This is frightening because students who 
own a promotional item are 4 times more likely to be smokers than kids 
who don't own these items. Even though we don't see tobacco packaging 
as blatant as Joe Camel, the industry has become more sophisticated in 
their approach. Let's take a look at some of these products. You tell 
me a hip-hop picture on Kool cigarettes is not directed at kids.
  A package of Liquid Zoo cigarettes looks more like a candy package 
than anything.
  And there is more. Big tobacco is using promotions and more creative 
marketing strategies but they are also using slicker tactics than that. 
Take for example a study that found 50 percent of tobacco retailers had 
tobacco ads at young kids' eye level. That is tobacco marketing at 
three feet or lower. Twenty-three percent of these tobacco retailers 
had cigarette product displays within 6 inches of candy. How can we say 
that this is not marketing directed at our kids? These are the kinds of 
tactics that are unconscionable and must be stopped. The FDA must be 
given the necessary authority to regulate tobacco.
  And what about disclosing ingredients? Tobacco can make claims that 
their cigarette is safer, and we have no way of proving that.
  Today, the Senate will consider an amendment that is critical to the 
health of both the kids and the adults in our country. This amendment 
would give the Food and Drug Administration the authority to protect 
ourselves from the dangers of starting smoking. This amendment would 
give the FDA the authority to regulate the sale, distribution, and 
advertising of cigarettes and smokeless tobacco in order to stop 
tobacco company marketing practices that target children and mislead 
the public. It would also give the FDA the authority to crack down on 
vendors who continue to sell cigarettes to kids.
  HHS Secretary Tommy Thompson testified just this morning that over 
$150 billion was spent on tobacco-related illness last year. That is 
only the monetary cost of this lethal product. Forty-seven million 
Americans smoke, and 400,000 people a year die because of it. Smokers 
have a one in three chance of dying from smoking-related conditions. 
This is not the future that we want to doom our children to. I hope my 
Senate colleagues will join me in

[[Page 15687]]

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

[[Page 15688]]

  It would give the Secretary authority to require disclosure of any 
cigarette or other tobacco product constituent including any smoke 
constituent that he deems to benefit public health. This could very 
easily be an impossible burden levied at the Secretary's whim.
  When it comes to record keeping, this bill simply says that the 
Secretary of the FDA will take into account the size of businesses when 
putting the regulations into place. This new authority is too vague, 
and it could be interpreted as giving the FDA the ability to 
discriminate based on arbitrary ideas of what size a business should 
be. This amendment would give the FDA wholesale authority to regulate 
every aspect of construction, ingredients, components or properties, 
including the sale, distribution, access, marketing and labeling, 
through the application of ``product standards.''
  I am also troubled by the fact that we do not have the option to make 
amendments to such an expansive bill since it is being rushed through 
the Senate attached to the FSC/ETI bill instead of following 
traditional committee procedures such as hearings and markup and floor 
amendment.
  This amendment cites underage tobacco use as a reason for increased 
regulation. Underage use is troubling, but the fact is that there are 
already decisive laws in place to prevent minors from purchasing 
tobacco. There is a need for better enforcement, not more FDA 
regulation. The authority given to the FDA in this amendment no longer 
focuses on reducing youth usage, but rather, on adult consumption by 
stating that the new restrictions focus on protecting the public 
health.
  Another problem is that this amendment holds retailers accountable 
for labeling when it is the manufacturer's responsibility. ``This 
paragraph shall not relieve a retailer of liability if the retailer 
sells or distributes tobacco products that are not labeled in 
accordance with this subsection.''
  These FDA regulations would reduce competition by increasing 
regulatory costs and restricting the ability to communicate with adult 
smokers.
  These proposals place so many barriers to the introduction of new 
conventional products, those making no health claims and potentially 
reduced risk, that it discourages their development.
  It increases black market attrac-
tiveness. The numerous restrictions and regulations provide ample 
incentives to illegal operators.
  I ask unanimous consent that the text of several statements made by 
the National Association of Convenience Stores, the American 
Conservative Union, the Association of National Advertisers, the 
American Association of Advertising Agencies, the American Advertising 
Federation, the American Wholesale Marketers Association, and many on 
the HELP Committee, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              National Association


                                        of Convenience Stores,

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

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



                                  American Conservative Union,

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

                                                     June 1, 2004.
     Hon. Judd Gregg,
     Chairman, Committee on Health, Education, Labor and Pensions, 
         U.S. Senate, Russell Senate Office Building, Washington, 
         DC.
       Dear Mr. Chairman: On behalf of the Association of National 
     Advertisers (ANA), the American Association of Advertising 
     Agencies (AAAA) and the American Advertising Federation 
     (AAF), we are writing to express our opposition to several of 
     the marketing provisions of S. 2461, the ``Family Smoking 
     Prevention and Tobacco Control Act.''
       We oppose section 102 of the bill, which would direct the 
     Secretary of Health and Human Services to publish an interim 
     final rule that is ``identical in its provisions'' to the 
     proposed rule promulgated by the FDA in 1996. Legal experts 
     from across the political spectrum agree that the sweeping 
     and unprecedented restrictions in that proposal, which would 
     result in a de facto ban on tobacco advertising, would 
     violate the First

[[Page 15689]]

     Amendment. In fact, the U.S. Supreme Court held in the 
     Lorillard case in 2001 that a Massachusetts tobacco 
     regulation that was virtually identical to one part of the 
     FDA proposal was unconstitutional.
       Section 201 of the bill would add new disclosure 
     requirements for all tobacco advertising on top of those 
     contained in the FDA's 1996 proposed rule. In addition, the 
     bill would require the FDA to conduct a rulemaking to 
     determine whether it should mandate the inclusion of tar and 
     nicotine yields in all labels and advertising. All of the 
     various disclosure requirements of S. 2461 place the 
     government in the role of copywriter. By ``seizing'' a 
     substantial portion of every tobacco ad for government-
     mandated disclosures, the bill raises First Amendment 
     concerns about ``compelled speech'' and could result in an 
     unconstitutional ``taking'' of a company's commercial 
     property in violation of the Fifth Amendment.
       We also oppose section 203 of S. 2461, which would grant 
     new authority to state and local governments to impose 
     ``specific bans or restrictions on the time, place and 
     manner'' of tobacco advertisements. Much of the advertising 
     for tobacco products occurs in interstate commerce. Allowing 
     individual states and local governments to impose their own 
     bans or restrictions would result in a crazy-quilt of 
     inconsistent laws, making tobacco advertising virtually 
     impossible.
       We take no position on the provisions of the bill that 
     would generally grant the Food and Drug Administration (FDA) 
     the authority to regulate tobacco products.
     Enacting the FDA's 1996 Tobacco Advertising Restrictions 
         Would Violate the First Amendment
       We believe that the sweeping tobacco advertising 
     restrictions promulgated by the FDA in 1996 violate the First 
     Amendment rights of tobacco companies to communicate with 
     adults. The FDA's proposal would impose the following 
     restrictions on tobacco advertising:
       Ban all outdoor advertising for tobacco products within 
     1,000 feet of any elementary or secondary school or 
     playground;
       Require all permitted tobacco advertising, including direct 
     mail, to be black text on a white background, except in 
     magazines, newspapers or other periodicals with adult 
     readership of 85% or more, or fewer than 2 million readers 
     under the age of 18;
       Require all advertisements and labels to identify the 
     tobacco product as a ``nicotine delivery device'';
       Require all advertisements to contain a government-dictated 
     ``brief statement'' (in addition to the current Surgeon 
     General's warning) to serve as a warning about possible 
     dangers associated with the use of tobacco products;
       Ban the use of promotional items such as hats or T-shirts 
     containing the name or logo of a tobacco product, and 
     prohibit other promotional techniques such as product give-
     aways, rebates or refunds;
       Require sponsorship of athletic, musical, social or other 
     cultural events in corporate name only;
       Require all advertisers of tobacco products to fund and 
     participate in a national public education campaign designed 
     to discourage the use of tobacco products by minors. The FDA 
     would require the annual fund established for this campaign 
     to total $150 million;
       Require compliance with more stringent requirements as 
     enacted by state and local governments; and
       Authorize the enactment of additional restrictions seven 
     years after implementation of a final rule if the number of 
     minors who use tobacco products has not decreased by 50% from 
     1994 levels.
       The net effect of the FDA proposal would be a de facto ban 
     on advertising tobacco products. This regulatory package 
     violates the First Amendment protections for commercial 
     speech.
       The U.S. Supreme Court has made it clear that truthful, 
     nondeceptive commercial speech cannot be banned or restricted 
     unless the restriction ``directly and materially advances'' a 
     ``substantial governmental interest'' and is ``narrowly 
     tailored'' to ``reasonably fit'' that interest. See Central 
     Hudson Gas and Electric Corporation v. Public Service 
     Commission of New York, 447 U.S. 557 (1980).
       In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 
     (1996), a unanimous Supreme Court reaffirmed that all 
     truthful, nondeceptive advertising about a legal product is 
     entitled to the same level of First Amendment protection, 
     regardless of the product.
       In the Lorillard case, the Supreme Court struck down a 
     regulation promulgated by the Attorney General of 
     Massachusetts that was similar in many respects to the FDA's 
     proposed rule. The Massachusetts regulation banned outdoor 
     ads within 1,000-feet of schools, parks and playgrounds and 
     also restricted point-of-sale advertising for tobacco 
     products. See Lorillard Tobacco Company v. Thomas Reilly, 
     Attorney General of Massachusetts, 533 U.S. 525 (2001).
       In finding that the Massachusetts regulation was not 
     narrowly tailored, Justice O' Connor actually noted a similar 
     problem with the FDA regulation: ``First, the Attorney 
     General did not seem to consider the impact of the 1,000-foot 
     restriction on commercial speech in major metropolitan areas. 
     The Attorney General apparently selected the 1,000-foot 
     distance based on the FDA's decision to impose an identical 
     1,000- foot restriction when it attempted to regulate 
     cigarette and smokeless tobacco advertising. (Citations 
     omitted) But the FDA's 1,000-foot regulation was not an 
     adequate basis for the Attorney General to tailor the 
     Massachusetts regulations. The degree to which speech is 
     suppressed--or alternative avenues for speech remain 
     available--under a particular regulatory scheme tends to be 
     case specific. (Citations omitted) And a case specific 
     analysis makes sense, for although a State or locality may 
     have common interests and concerns about underage smoking and 
     the effects of tobacco advertisements, the impact of a 
     restriction on speech will undoubtedly vary from place to 
     place. The FDA's regulations would have had widely disparate 
     effects nationwide. Even in Massachusetts, the effect of the 
     Attorney General's speech regulations will vary based on 
     whether a locale is rural, suburban, or urban. The uniformly 
     broad sweep of the geographical limitation demonstrates a 
     lack of tailoring.'' (Emphasis added)
       Thus, the Supreme Court has already examined one provision 
     of the FDA proposal--the 1,000-foot ban on outdoor ads--and 
     suggested that it violates the First Amendment because it is 
     not narrowly tailored.
       The Supreme Court rejected the efforts of the Massachusetts 
     Attorney General to ``childproof' the flow of information in 
     our society. Children deserve to be protected from 
     inappropriate or harmful material, but the government may not 
     use the guise of protecting children to impose sweeping 
     restrictions on information intended for adults. In Bolger v. 
     Youngs Drug Products Corporation, 463 U.S. 60 (1980), the 
     Court stated that efforts to restrict advertising cannot 
     lower discourse in society ``to the level of the sandbox'' 
     and citing Butler v. Michigan, 353 U.S. 383 (1957), that 
     ``Government may not reduce the adult population . . . to 
     reading only that which is fit for children.'' 463 U.S. at 
     73.
       One of the most vocal critics of the tobacco industry, 
     Harvard Law School Professor Laurence Tribe, argued that the 
     tobacco advertising bans included in the master settlement 
     agreement between the tobacco companies and the states, if 
     legislated, would raise serious First Amendment concerns. So 
     have a broad range of public policy groups, from the 
     Washington Legal Foundation to the American Civil Liberties 
     Union (ACLU). In testimony to the Senate Judiciary Committee 
     on February 20, 1998, the ACLU stated: ``The ACLU believes 
     that . . . both legislation and proposed regulation by the 
     Food and Drug Administration (FDA) . . . on tobacco 
     advertisements . . . is wholly unprecedented and, if enacted, 
     will most likely fail to withstand constitutional challenge. 
     Moreover, we believe that the enactment of the proposed 
     tobacco advertising restrictions would impose a drastic 
     curtailment of commercial speech and could have a chilling 
     effect on the right of the public and businesses to engage in 
     free speech about controversial subjects.''
       A number of legal scholars, including Judge Robert Bork; 
     Burt Neuborne, Professor of Law at New York University School 
     of Law; Rodney Smolla, Professor of Law at the College of 
     William & Mary; and First Amendment expert Floyd Abrams have 
     all publicly testified regarding the constitutional problems 
     with legislating this type of speech restriction. In a 
     Washington Legal Foundation publication in 1996, Judge Bork 
     stated: ``[T]he recent proposal of the Food and Drug 
     Administration (FDA) to restrict severely the First Amendment 
     rights of American companies and individuals who, in one way 
     or another, have any connection with tobacco products [is] 
     patently unconstitutional under the Supreme Court's current 
     doctrine concerning commercial speech as well as under the 
     original understanding of the First Amendment.''
       While the government has a legitimate interest in fighting 
     the use of tobacco products by minors, the FDA's proposed 
     regulations sweep far too broadly and result in massive 
     censorship of truthful speech aimed at adults.
     New Disclosure Requirements Would Overload Advertisements
       As noted above, the FDA's proposed rule from 1996 would 
     require that all ads identify the tobacco product as a 
     ``nicotine delivery device'' and contain a government-
     dictated ``brief statement,'' in addition to the current 
     Surgeon General's warnings. Section 201 of S. 2461 would add 
     another layer of disclosures to all ads. It would require the 
     ``label statement'' to comprise at least 20% of the area of 
     the ad, to be placed at the top of each ad with specific 
     type-sizes. Further, section 206 of the bill requires an FDA 
     rulemaking to determine whether the agency should also 
     mandate the inclusion of tar and nicotine yields in all 
     labels and advertising.
       These various disclosure requirements would result in 
     information overload for all tobacco product ads. By 
     mandating these disclosures and requiring specific type 
     sizes, the bill would place the government in the role of 
     copywriter. It raises serious First Amendment concerns about 
     ``compelled speech.'' It could ultimately result in an 
     unconstitutional ``taking'' of the company's commercial 
     message in violation of the Fifth

[[Page 15690]]

     Amendment. Advertising is not free. When a tobacco company 
     purchases advertising space, it acquires an important 
     property interest. The multiple disclosure requirements of S. 
     2461 would literally ``seize'' a substantial portion of the 
     company's space and conscript it for government-mandated 
     messages. This would be an interference with both free speech 
     and property rights.
     New State/Local Ad Restrictions Would Make Tobacco 
         Advertising Impossible
       We are strongly opposed to section 203 of S. 2461. That 
     provision would authorize states and thousands of local 
     governments to impose ``specific bans or restrictions on the 
     time, place and manner, but not content,'' of tobacco 
     advertising. This could result in a crazy quilt of 
     inconsistent advertising restrictions, both intra-state and 
     inter-state. For example, tobacco advertising is often placed 
     in publications with regional or national distribution. How 
     could a tobacco company place an ad in a popular magazine 
     that complies with hundreds or potentially thousands of 
     inconsistent restrictions on the ``time, place and manner'' 
     of tobacco ads?
       This provision would make tobacco advertising impossible on 
     a regional or national basis and result in a defacto ban on 
     this category. It would authorize state and local governments 
     to engage in censorship of one form of speech based solely on 
     its content.
     Conclusion
       Some claim that tobacco products are unique, so that it is 
     permissible to ignore the First Amendment just for those 
     products. The Supreme Court has rejected this theory in a 
     series of cases, including Lorillard and the 44 Liquormart 
     case. What you do to tobacco advertising today, you will be 
     urged to do to advertising for many other ``controversial'' 
     products tomorrow. Justice Thomas recognized this in his 
     concurring opinion in the Lorillard case: ``Nevertheless, it 
     seems appropriate to point out that to uphold the 
     Massachusetts tobacco regulations would be to accept a line 
     of reasoning that would permit restrictions on advertising 
     for a host of other products.''
       Don't start down this road to content-based censorship of 
     advertising. We urge you to remove these marketing provisions 
     from S. 2461. The government can take strong, effective steps 
     to restrict tobacco sales and access to minors without 
     trampling on the First Amendment.
       Thank you for your consideration of our views.
           Sincerely,
       Daniel L. Jaffe, Executive Vice President, Association of 
     National Advertisers, Washington, DC.
       Richard F. O'Brien, Executive Vice President, American 
     Association of Advertising Agencies, Washington, DC 20036.
       Jeffry L. Perlman, Executive Vice President, American 
     Advertising Federation, Washington, DC 20005.

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

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

                                              Scott Ramminger,

                                                        President,
     American Wholesale Marketers Association.
                                  ____


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

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

  Mr. INHOFE. These groups are all concerned about the bill. I echo 
their concern. This proposal will greatly increase Federal mandates and 
regulations on tobacco that lead to more Government control. I find it 
troubling that Congress is willing to grant so much authority to an 
executive agency while not allowing us adequate time to evaluate and 
possibly amend this legislation.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. I ask unanimous consent to proceed for 5 minutes.
  Mr. REID. Mr. President, I ask unanimous consent that whoever is in 
opposition have an equal amount of time.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, as we close debate, I thank Jeff Teitz, 
Senator Kennedy's very able assistant, who has worked on this 
legislation, and I also want to thank my assistants, Abby Kral, Paul 
Palagyi, Mike Dawson, and Karla Carpenter, who could not be here 
because she had a baby. We miss Karla, and we welcome into the world 
Davis Matthew, her son who was just born. We are very glad about that.
  Let me respond very briefly to my friend from Oklahoma and his 
comments about the FDA bill not having seen the light of day. The 
amendment that is in front of us is the DeWine-Kennedy bill, which is 
now an amendment. The DeWine-Kennedy bill was actually introduced in 
May of this year. It is the only FDA regulation of tobacco bill that 
was introduced, so it has been out here for people to look at for a 
long time. It was the product of lengthy negotiations between health 
groups and others. We went back and forth for a long time. It is not 
really dissimilar to other bills that have been talked about before in 
other negotiations. It has evolved over a long period of time. It is 
the work product of Senator Kennedy and myself, but it is the second 
generation or third generation of what others have done.
  So the concepts in this bill are not fundamentally new. There is 
nothing in this bill that should come as a surprise to anyone.
  As I said, this has been on the floor for a long time. People have 
had an opportunity to look at it. Interested parties have had a chance 
to examine it.
  Mr. President, I ask for the yeas and nays. I think we are getting 
close to closing this down.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. DeWINE. Mr. President, Senator Kennedy would like to close at 
this point. I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.

[[Page 15691]]


  Mr. KENNEDY. Mr. President, I will take a moment to once again thank 
Senator DeWine for his strong leadership in our Health, Education, 
Labor, and Pensions Committee on this issue. I thank our leaders for 
bringing us to where we are. I thank Senator McConnell for the 
opportunity to work with him on this issue. And I thank our colleagues 
for the strong support we have seen during the course of this 
discussion.
  This health issue is the most important health issue we are facing on 
which we can make serious progress, progress that is almost the 
equivalent of conquering cancer--it is that important--because we have 
an epidemic of smoking that is affecting the children of this Nation. 
It is enormously adverse to their health conditions, and it is a source 
of premature death to them as they grow and develop in the future, 
causing all kinds of health ailments.
  This is a children's issue, a health issue, a family issue because 
with this legislation, there are going to be more children who are 
going to be able to see their parents when they grow older and there 
are more children who will see their grandparents when they grow older. 
We have an opportunity to make a major downpayment and major progress 
in the quality of health for these children.
  I thank those who have spoken in favor of the legislation. Hopefully, 
we will get strong support for it when the votes are cast.
  Mr. President, I ask unanimous consent that a list of supporters be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             List of Supporters of DeWine-Kennedy FDA Bill

       American Academy of Family Physicians, American Academy of 
     Nurse Practitioners, American Academy of Pediatrics, American 
     Cancer Society, American College of Cardiology, American 
     College of Chest Physicians, American College of Physicians, 
     American College of Preventive Medicine, American Dental 
     Association, American Heart Association, American Lung 
     Association, American Medical Association, American Public 
     Health Association, American Psychological Association, 
     American School Health Association, American Society of 
     Addiction Medicine, American Society of Clinical Oncology, 
     American Thoracic Society, Association of Maternal and Child 
     Health Programs, Association of Schools of Public Health.
       Campaign for Tobacco-Free Kids, Center for Parish Nursing & 
     Health Ministries, Center for Tobacco Cessation, Children's 
     Defense Fund, Church of the Brethen Witness/Washington 
     Office, Church Women United, Evangelical Lutheran Church in 
     America, General Board of Church and Society of the United 
     Methodist Church, General Board of Global Ministries The 
     United Methodist Church, Special Program on Substance Abuse 
     and Related Violence (SPSARV), Health Ministries Association, 
     Interreligious Coalition on Smoking or Health, Islamic 
     Society of North America, National Latino Council on Alcohol 
     and Tobacco Prevention, National Association of County and 
     City Health Officials (NACCHO), National Association of Local 
     Boards of Health, National Center for Policy Research for 
     Women & Families, National Education Association, National 
     Woman's Christian Temperance Union, National Women's Law 
     Center, Oncology Nursing Society.
       Office of Family and Children's Ministries of Disciples 
     Home Missions of the Disciples, Praxis Project, Presbyterian 
     Church (USA), Washington Office, Seventh-day Adventist 
     Church, Society for Public Health Education, Tobacco Program, 
     Interfaith Center on Corporate Responsibility, United Church 
     of Christ.

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

[[Page 15692]]

quotaholders in the District of Columbia get millions of dollars. They 
are going to be reading about this and be upset, and they are going to 
say: Congress, how could you do this? Then they are going to go back 
and say: Congress didn't debate this much.
  I compliment my colleague from Ohio. Most of the debate has been on 
the FDA regulations, not the buyout.
  I hope my colleagues reject the amendment.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, this has been a very good debate. In 
closing the debate, I thank all those who have participated. I ask my 
colleagues to vote yes. Ultimately, this is a question about common 
sense, having the FDA regulate this product, and it is a question of 
saving lives. That is what we will do.
  I thank the Chair, and I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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