[Congressional Record (Bound Edition), Volume 155 (2009), Part 10]
[Senate]
[Pages 13649-13673]
[From the U.S. Government Publishing Office, www.gpo.gov]




  FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to H.R. 1256, which the 
clerk will report.
  The legislative clerk read as follows:

       A motion to proceed to the bill (H.R. 1256) to protect the 
     public health by providing the Food and Drug Administration 
     with certain authority to regulate tobacco products, to amend 
     title 5, United States Code, to make certain modifications in 
     the Thrift Savings Plan, the Civil Service Retirement System, 
     and the Federal Employees' Retirement System, and for other 
     purposes.

  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I rise to speak in support of the 
Family Smoking Prevention and Tobacco Control Act, a bill that will 
finally give the Food and Drug Administration the authority to regulate 
tobacco products.
  This was the first bill for which I had the honor of voting in my new 
role as a member of the Health, Education, Labor, and Pensions 
Committee--the newest member--but it is the result of years of tireless 
effort by members of this committee and by their staffs. I especially 
commend its primary sponsor, our chairman, Ted Kennedy, who has long 
been committed to protecting our Nation's children from the dangers of 
tobacco and nicotine addiction, and Senator Dodd, who is so ably 
leading that fight in his stead today. I thank them and our colleagues 
in the House for the efforts that have brought us this bill before the 
Senate today.
  This legislation is long overdue and very much needed. Just last 
month, a three-judge panel of the U.S. Court of Appeals for the DC 
Circuit unanimously upheld the decision of the district court that the 
tobacco companies had engaged in racketeering. The court found that for 
at least 50 years, the companies have knowingly kept information from 
the American public about the health and safety risks of their products 
and that they continue to do so today. These companies have worked 
together to deceive the American public and cannot be trusted to 
regulate themselves.
  As generations of customers died from illnesses related to smoking, 
the tobacco companies have kept their profits up by marketing their 
products to children through cartoon advertisements, candy flavorings, 
and sports sponsorships. Public health advocates, lawmakers, 
prosecutors, and family members who have lost loved ones to the ravages 
of smoking have attempted to take on the tobacco companies, but they 
confronted a coordinated effort backed by billions of dollars to 
protect this deadly business.
  In the next year, 400,000 Americans will die from smoking-related 
illness and more than 450,000 children will become daily smokers. Every 
day, 3,500 kids pick up a cigarette for the first time.
  Even those who do not smoke still pay a price--$96 billion each year 
in public and private health expenditures to treat illness caused by 
smoking. The companies will, of course, point to concessions and 
payouts over the years, but it is clearly not enough. As we work to 
reform our broken health care system, we cannot ignore this public 
health menace.
  That is why it is vital that we finally pass this legislation. The 
FDA is the agency most prepared to take on the regulatory, scientific, 
and public health challenges created by tobacco products. This 
carefully crafted compromise bill gives FDA the tools necessary to take 
on the tobacco companies in three major areas: advertising and sales to 
young people, the composition of cigarettes, and representations of 
health effects of tobacco products.
  We have wasted too much time fighting the same battles over the same 
issues for years. This legislation finally enacts tough but 
constitutionally sound regulations on advertising targeted toward young 
people. It puts a warning label on every pack of cigarettes that covers 
50 percent of each side of the package. The companies will finally have 
to disclose the content of tobacco products, and FDA will have the 
authority to regulate hazardous ingredients. Tobacco product 
manufacturers will no longer be able to make unsubstantiated claims 
about their products--FDA will have to verify any health claim based on 
its impact on the population as a whole in order to protect tobacco 
users and potential tobacco users. This will be paid for by the tobacco 
product manufacturers and importers themselves, taking no resources 
away from the FDA's other vital missions.
  So many of us have been touched by the ravages of smoking and lost 
family and friends. Yet we still see too many young people become 
addicted to cigarettes or pick up the newest smokeless tobacco product 
without knowing the real risks to their health. We cannot leave this to 
court settlements or to the industry itself. We have been waiting for 
50 years, and the evidence shows we are still being deceived. 
Regulation is long past due. This bipartisan bill, with the support of 
over 1,000 public health, faith, education, and children's 
organizations, is the best opportunity to help protect our children 
from the menace of tobacco. We have delayed long enough.
  I again thank Chairman Kennedy, Senator Dodd, and my colleagues on 
the HELP Committee for their hard work bringing this bill to the floor 
and getting us closer than any other point in the long history of this 
legislation to finally seeing the effective regulation of tobacco 
products.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ROBERTS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


          CRAIG THOMAS RURAL HOSPITAL AND PROVIDER EQUITY ACT

  Mr. ROBERTS. Mr. President, I rise today to again pay tribute to one 
of the Senate's finest: our colleague, the late Craig Thomas from 
Wyoming. Two years ago this week, the Senate lost a steady hand and a 
man who did much for his State of Wyoming. Craig was dependable in the 
finest sense of the word. He defined the word ``dependable.'' He was 
the epitome of a workhorse, not a show horse.

[[Page 13650]]

  On a personal note, for many Senators, why, Craig was not only a 
colleague but a dear friend. I will cherish that always. Craig was also 
a fellow marine. In this case, Semper Fidelis--always faithful--is most 
appropriate. If anyone faced trouble in their life, the one person you 
would want by your side would be Craig Thomas.
  This is why I am proud and honored again to join with my colleagues 
Kent Conrad and Tom Harkin, and with the new Senator from Wyoming, John 
Barrasso, and the distinguished Senator from Utah, Orrin Hatch, to 
introduce the Senate Rural Health Caucus bill in honor of Senator 
Thomas. The bill we are introducing is the Craig Thomas Rural Hospital 
and Provider Equity Act, with emphasis on the ``equity.''
  The people of Wyoming and all of Craig's colleagues knew he fought 
for rural America and always put the needs of his State above all else. 
On the health care front, why, Craig was truly a champion for 
strengthening our rural health care delivery system and providing 
relief to our hospitals and other providers in our rural areas.
  He served for 10 years as the cochair of the Senate Rural Health 
Caucus. He actually took over the reins as cochair after my fellow 
Kansan, Bob Dole, retired from the Senate. And as I know personally, it 
is hard to follow in the footsteps of Senator Dole--for that matter, 
Senator Thomas.
  However, Craig did this with great ease and great pride. His steady 
leadership put the caucus on the map, and he made great strides in 
showing all of our colleagues the true needs of rural health care. We 
will truly miss him during the current health care debate. I and the 
members of the caucus miss him and his leadership greatly.
  One of the biggest accomplishments for Craig in the Rural Health 
Caucus was passage of the Medicare Modernization Act in 2003, which 
provided a big boost to our rural hospitals and providers. There was 
recognition and support from our colleagues from all of our 
geographical areas, large and small, for including these badly needed 
rural health provisions.
  These provisions included in the Medicare bill provided much needed 
relief to rural health providers, enhanced beneficiary access to 
quality health care services, and improved provider payments in our 
rural areas. So many times those payments simply do not even come close 
to the costs of the provider and the service they provide to our rural 
citizens.
  However, you would never know that it was Craig Thomas behind the 
scenes working to get these rural health provisions included in the 
Medicare bill. Craig was more concerned with getting the work done 
rather than taking the credit. So instead of taking individual credit 
for his hard work and his dedication on the Medicare bill, he applauded 
the entire Rural Health Caucus and patted everybody else on the back. 
It is this kind of leadership that set Craig Thomas apart from his 
colleagues.
  However, Craig knew that while passage of the Medicare bill was a 
giant step for rural health, we still had much work to do to ensure our 
rural system can continue to survive. Sometimes when they ask me about 
health care reform--``they'' meaning most of the people interested in 
health care reform: the media, others, the health care providers--I 
simply say one of the things we want to do is to make sure we preserve 
what we have. This is why we were proud and honored to carry on his 
legacy by introducing the Craig Thomas Rural Hospital and Provider 
Equity Act in the 110th Congress, and again in this Congress. We can 
enhance Craig's legacy certainly in this way.
  I wish to especially recognize a member of Craig's former staff who 
has always worked extremely hard to advance rural health care causes 
and who has remained a champion for Wyoming as a member of Senator John 
Barrasso's staff: Erin Dempsey. I know my staff has worked very closely 
with Erin over the years, and I have a great amount of respect for her 
hard work. We always have an expression: We are only as good as our 
staff here--or at least some of us do actually admit to that. Erin, 
thank you for being such a hero alongside Craig, and now Senator 
Barrasso. We are proud of you for everything you have done on behalf of 
rural health care.
  This Congress, with health care reform at the front and center, 
Senators Barrasso, Conrad, Harkin, Hatch, and I will do our very best 
to lead in Craig's absence and to ensure that rural health does not get 
left behind. I have made a personal commitment to make sure we get this 
bill done and ultimately provide the much needed relief to our rural 
communities.
  The Craig Thomas Rural Hospital and Provider Equity Act recognizes 
that rural health care providers have very different needs than their 
urban counterparts and that health care is not one size fits all.
  The Craig Thomas Rural Hospital and Provider Equity Act--and the 
acronym of that, by the way--everything has to be an acronym in 
Washington--is R-HoPE--so the R-HoPE Act of 2009 makes changes to 
Medicare regulations for rural hospitals and providers. It recognizes 
the difficulty in achieving the same economies of scale as large urban 
facilities. This legislation equalizes Medicare's disproportionate 
share of hospital payments to bring the rural hospitals in line with 
our urban hospitals. This bill also provides additional assistance for 
small rural hospitals that have a very low volume of patients. Often 
these hospitals have trouble making ends meet under the Medicare 
payment system.
  The Craig Thomas Rural Hospital and Provider Equity Act, R-HoPE Act, 
also provides a Capital Infrastructure Loan Program to make loans 
available to help rural facilities improve crumbling buildings and 
infrastructure. In addition, rural providers can apply to receive 
planning grants to help assess capital and infrastructure needs.
  The bill extends to January 1, 2011, two incentive programs aimed at 
improving the quality of care by attracting health care providers to 
health professional shortage areas. The first is the Medicare Incentive 
Payment Program, which provides a 10-percent bonus payment to 
physicians who will practice in shortage areas. The second is the 
Physician Fee Schedule Work Geographic Adjustment--that is a mouthful--
but it simply means it will bring rural doctors' Medicare fee schedules 
for wages more in line with urban doctors.
  The bill also recognizes that other providers do play a great role in 
the rural health care delivery system. Our bill increases the payment 
cap for rural health clinics to keep them in line with community health 
centers. It provides a 5-percent add-on payment for rural home health 
services. And it provides a 5-percent add-on payment for ground 
ambulance services in our rural areas.
  One of the provisions in the bill--and this is the one that Craig 
Thomas certainly championed--is a provision to allow marriage and 
family therapists and licensed professional counselors to bill Medicare 
for their services and be paid the rate of social workers.
  Currently, the Medicare program only permits psychiatrists, 
psychologists, social workers, and clinical nurse specialists to bill 
Medicare for mental health services that are provided to our seniors. 
However, most rural counties--most rural counties--simply do not have a 
psychiatrist or a psychologist. Marriage and family therapists, 
however, and licensed professional counselors are much more likely to 
practice in a rural setting and are often the only mental health 
professionals available.
  Finally, this bill uses technology to improve home health services 
and quality of care by creating a pilot program providing incentives 
for home health agencies to purchase and utilize home monitoring and 
also communication technologies and facilitates telehealth services 
across State lines.
  Today I am proud and honored to introduce this bill on behalf of our 
former Senator and colleague, Craig Thomas. We miss him greatly as a 
personal friend, a confidante and colleague. Our thoughts and prayers 
are with his wife Susan, his sons Peter, Patrick, and Greg, and his 
daughter Lexie.
  Mr. President, it is time to pass this bill.
  Mr. President, I yield the floor.

[[Page 13651]]

  The PRESIDING OFFICER. The Senator from New Hampshire.


                             National Debt

  Mr. GREGG. Mr. President, I rise today to return to a topic I have 
discussed on the floor a number of times but which I think needs to be 
discussed again because of the severity of its implications for our 
Nation; that is, the massive amount of debt which we are running up in 
our country.
  This massive expansion of our debt, at levels which we have never 
seen in our history, as proposed by the President's budget and the 
budget which passed this Congress, threatens the value of the dollar. 
It threatens to create instability through massive inflation. And it 
clearly threatens the future of our children.
  I am not the only one who thinks this way. As you look around the 
world, there are a lot of folks taking a look at where we as a nation 
are going and asking the question: Can we afford this debt as a 
country?
  Interestingly, just a week and a half ago or so, Standard & Poor's, 
the rating agency, looked at the English situation and put out a 
statement that the triple A bond rating of England was in jeopardy. 
They essentially took the adjective ``stable'' out from their 
designation of that bond rating and said they had a negative bias on 
the triple A rating. They did not reduce it, but they did put out a 
major warning sign.
  What does that mean? Well, if your bond rating as a nation drops, 
that means the world community does not have a lot of confidence in 
your ability to repay your debt and it is going to charge you a lot 
more to lend you money. The effect of a bond rating change for a nation 
such as the United Kingdom--which is one of the most stable and 
industrialized countries in the world--is catastrophic. What brought 
about this decision by Standard & Poor's to put, at least on a watch 
list, so to say, the bonds of the United Kingdom? It is the fact that 
England has so expanded its debt that its debt now represents 
approximately 52 percent of its gross national product.
  Well, where do we stand as a nation in our debt relative to our gross 
national product? This chart reflects the fact that historically, in 
the last 30 or 40 years, our debt has averaged between 30 percent and 
40 percent of GDP, but in this economic downturn, we are seeing a 
dramatic increase in our debt as a nation. In the short run, I have 
said many times, we can tolerate this for the purpose of trying to 
float the economy, for the purpose of the government being the lender 
of last resort, for the purpose of stabilizing the financial systems. A 
short-term, huge spike in our debt is not desired, but it can be 
managed. We have done this in the past. During World War II, for 
example, our debt went up dramatically. But the key is, it has to come 
back down. It just can't keep going up.
  Well, today, our debt is about 57 percent of our gross national 
product, our public debt. It is up around here on the chart. As we see 
from this line, under the budget proposed by President Obama, it 
continues to go up, almost in a perpendicular manner, to the point 
where, by the end of the budget as proposed by the President and as 
passed by this Congress, the public debt will be approximately 82 
percent of gross national product. That is not a sustainable situation. 
Over the next 10 years, under the budget as proposed by the President, 
we will be running deficits which represent $1 trillion a year, on 
average--$1 trillion a year, on average. As a percentage of our gross 
national product, those deficits will be between 4 percent and 5 
percent.
  As I have said before on this floor, you can't get into the European 
Union if your deficit exceeds 3 percent of your gross national product 
and your debt exceeds 60 percent of your gross national product.
  These are all big numbers and nobody can catch up with those numbers, 
but the basic implication is very simple. Under the present path we are 
on, the debt is going to double in 5 years, triple in 10 years, and the 
implications to our children are that they are going to inherit a 
country where the payments required on that debt are going to be the 
single largest item of the Federal Government--$800 billion a year 
which will have to be paid in just interest. For every American, they 
will receive $130,000 of debt--every American household will have 
$130,000 of debt on that household to pay off the Federal 
responsibility--and $65,000 in interest payments annually for every 
American household. That is more than many American households' 
mortgages and more than their interest payments on their mortgages, but 
that is what every American household is going to owe as a result of 
this dramatic expansion in debt.
  What is driving this debt? Well, in the short term, obviously, it is 
the economic downturn. But we are not going to be in this economic 
downturn forever. Everybody is presuming we are starting to move out of 
it, and we will because we are a resilient nation. In the outyears, 
what is driving this debt is spending--it is that simple--new, 
additional spending put on the books or planned to be put on the books 
under this budget.
  This blue line here, which flattens out where the debt stabilizes 
over the next 5 years, is if we had current law. In other words, if the 
law that was in place before the President's budget was passed were to 
take effect and stay in place, that is the blue line. That is what the 
debt would do; it would stabilize. But because the President has 
proposed so much new spending in addition to the spending that is going 
to come as a result of the retirement of the baby boom generation and 
the expansion of entitlements, this debt just continues up in an 
astronomical way.
  This is a real concern for us. I recognize it is hard for a Congress 
to deal with anything but the next election--and what we are talking 
about here is really what we are doing to the next generation--but we 
should be very concerned--more than concerned, we should be really 
focused on this as our primary issue of domestic policy as we go 
forward as being a threat to our prosperity as a nation.
  What are other governments saying? Well, China, which is our biggest 
creditor--we financed this debt by lending from China. They give us 
money to spend on our operations as a government. They have always 
looked on the U.S. debt as something that was a good investment, a safe 
investment, but the Chinese are having second thoughts. In an 
extraordinarily embarrassing incident, the Secretary of the Treasury, 
speaking before an audience of sophisticated college students in 
Beijing, was asked about the status of our debt that is held by the 
Chinese. He told them that Chinese assets are very safe, and the 
audience laughed. The audience actually laughed at the Secretary of the 
Treasury saying that Chinese assets are very safe. That is an anecdotal 
incident, but it would never have happened 6 months ago, 2 years ago, 
because these types of increases in debt as a percentage of our economy 
were nowhere in sight then--nowhere in sight.
  Then Mr. Yu, who is the former adviser to the Central Bank, made the 
following statement just a couple of days ago. He said:

       The United States Government should not be complacent and 
     it should understand that there are alternatives to China 
     buying U.S. bonds and bills. Investments in Euros are an 
     alternative, and there are lots of raw materials we can buy 
     too. China should not close those options.

  Well, if the Chinese Government starts to reduce its purchase of our 
bonds and our need to sell bonds is going up, what happens? That means 
the interest on the bonds is going to have to go up because we are 
going to have to find somebody who wants to buy these bonds and we are 
going to have to make them attractive around the world. As the interest 
on the bonds goes up, taxpayers end up having to bear that burden and 
the next generation ends up having to bear that burden.
  So what is the solution? How do we get around the fact that we are 
now on an unsustainable course which will lead to a fiscal calamity for 
our Nation and potentially put us in the position where we will have to 
devalue the dollar or have massive inflation?
  Interestingly enough, the Economic Information Daily, another Chinese 
publication, hit the nail right on the

[[Page 13652]]

head. Maybe because they are looking from the outside in and because of 
all they have invested they can see these things, because they said the 
question that should be asked of Secretary Geithner is, How do you 
propose implementing fiscal discipline? How will you maintain the 
stability of the dollar after the crisis--and I emphasize ``after.'' 
What they are saying is, after we get past this recession and the need 
to stabilize the financial structure of our country and the need to 
float the economy, how do we bend this curve back to something 
reasonable and sustainable? That is the question we should be asking 
around here as a Congress. We need to start asking it pretty soon.
  The President has said--he said it again yesterday--that one way you 
do this is by addressing the cost of health care, and he is absolutely 
right. Health care is the primary driver--one of the primary drivers--
of this massive increase in expenditures at the Federal level. But the 
President has put nothing on the table so far that bends the curve on 
the question of the cost of health care--in fact, just the opposite. 
His budget proposed that health care spending would go up $1.2 trillion 
over the next 10 years and, more importantly than that, it sets up a 
series of entitlements which will cost hundreds of billions--as I said, 
$1.6 trillion in new spending. He is suggesting that instead of keeping 
health care spending at about 17 percent of gross national product, 
which is a huge amount of money, by the way, more than any other 
industrialized country spends by almost 50 percent--the next closest 
country spends about 11 percent on health care--he is suggesting that 
instead of maintaining health care costs at 17 percent of gross 
national product, it be allowed to rise to 18, 19, and 20 percent of 
gross national product. Well, we can't afford that. We can't afford 
that.
  What we need in the area of health care is to address the issue that 
the President said, which is to control the costs of health care, not 
by expanding the size of the costs of health care but by using the 
dollars in the health system more effectively and by getting better 
quality at lower costs, which can be done, by the way. There are a lot 
of proposals for doing exactly that. But one of them isn't to create a 
single-payer plan or a public plan which essentially puts the 
government in charge of health care and, as a result, drives up the 
cost of health care significantly and drives the spending up and the 
borrowing up that goes with it. So, yes, we have to address it, but we 
have to address it in a way that actually controls spending, controls 
the rate of growth in spending and health care, and that doesn't 
aggravate this additional debt.
  It is hard to understate the significance of the threat this debt 
represents. It is hard to understate it. I know I have spoken on this 
floor about it a number of times, but that is because it is so critical 
to our future as a nation. We literally are bankrupting the futures of 
our children by putting this much debt on their backs, by doubling the 
national debt in 5 years and tripling it in 10 years. I am beginning to 
feel a little bit like Cato the Elder, who used to speak in the Roman 
Senate and begin and end every speech with ``Carthago delenda est.'' 
Finally, somebody listened to him, and they actually did destroy 
Carthage.
  Well, I am saying let's get the debt under control. Let's control the 
spending of this government. Let's do something about this outyear 
spending before we get to a position where the world loses confidence 
in our dollar, loses confidence in our debt, before we get into the 
position where we have to inflate the economy or we have to place taxes 
on our children that are so high that they have no chance to have as 
prosperous and as competitive a life as we have had. It is not fair, as 
I have said before, for one generation to create this type of debt and 
pass it on to the next generation to pay. It is not fair. It is not 
right. It is something we have never done as a nation. Whenever we have 
run up debt significantly like this, we have always paid it down on an 
equally quick basis. After World War II, when our debt got to over 100 
percent of GDP, we brought it down very quickly. We need to bring it 
down today. We need to have discipline around here that leads to 
getting the debt of this Nation back to a responsible level, which 
means something under 50 percent, hopefully closer to the historic norm 
of 40 percent; where we get the deficits back to a responsible level, 
which means under 3 percent, hopefully even headed toward balance; and 
where we can tell our children that we are passing on to them a 
stronger nation, not a weaker nation, a more prosperous nation, not a 
nation confronting massive inflation, leading to the devalue of the 
dollar or massive tax increases.
  Mr. President, I yield the floor and make the point of order that a 
quorum is not present.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BURR. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Gillibrand). Without objection, it is so 
ordered.
  Mr. BURR. Madam President, I needed to come to the floor and 
apologize for a misstatement I made yesterday on the current bill, the 
Kennedy tobacco bill. In yesterday's debate, I stated that the CBO, the 
Congressional Budget Office, report on the bill revealed that if 
enacted, smoking rates would decline 2 percent annually. In fact, I was 
wrong.
  I prepared a chart yesterday that showed, based upon what CBO said, 
that we would reduce by 2016 the smoking rate in the country to 17.8 
percent, and also the CDC's projection, which if we did nothing, we 
would reduce it to 15.9 percent, clearly showing the CBO estimate under 
the current bill we are considering would not bring the smoking rate 
down as much as doing nothing.
  The mistake I made yesterday was I assumed the way I read it that the 
CBO estimate is it would reduce smoking 2 percent per year. In fact, 
what the CBO report actually said was it would reduce by 2 percent over 
10 years. So, in fact, I have been way too generous to the current bill 
that it would reduce smoking to a point of 17.8 percent, which was 
figured based on a 2-percent-per-year reduction. In fact, the gap 
between doing nothing and passing this bill clearly is much bigger than 
I had anticipated; that by doing nothing, we get much more value, if 
the objective through passage of this legislation is to reduce the 
smoking rate in the United States.
  The bill that is being considered does not change existing products. 
Let me restate that. We grandfather in all the tobacco products that 
are currently being marketed. What CBO has concluded is that then you 
have to permanently figure that about the same rate of Americans will 
continue to smoke because they do not have new options to turn to.
  Let me make this pledge to my colleagues. If the CBO report that 
smoking will decrease by a scant 2 percent under the bill is because of 
new warning labels and graphic warning labels that are mandated in the 
bill, then let me say the substitute Senator Hagan and I will offer 
provides for the same warning labels and the same graphic warning 
labels. If that is what gets the 2 percent reduction over 10 years, 
which clearly it has to be, then I am willing to cosponsor that bill 
right now and substitute it for the entire Kennedy bill, so we get the 
full 2 percent we get in the Kennedy bill over 10 years of reductions.
  A simple warning label would be a tremendous improvement over this 
legislation--$787 million, a new mandate to the men and women in our 
military to pay for it, and it has been portrayed as an effort to 
reduce the usage of tobacco products with our youth.
  I covered for all our colleagues yesterday the fact that when you go 
down and look at the CDC proposals to States on part of the $280 
billion of MSA payments that the industry made to States, that the 
States had spent a pittance of what CDC projected on cessation programs 
to get people to stop smoking. But more alarming than the

[[Page 13653]]

fact that States use the tobacco money to fill their budget gaps and 
build sidewalks rather than to fund programs to get people to stop 
smoking is the fact that in practically every case of 50 States, the 
marijuana prevalence use among youth was higher than the tobacco 
prevalence.
  Let me say that again. Marijuana usage by our youth is projected by 
CDC to be higher in practically every State than what they have 
projected youth prevalence of tobacco use. It is actually smoking. That 
does not necessarily include smokeless.
  For my colleagues, including myself, I have spoken on the fact that 
we must keep tobacco out of the hands of our children. It has an age 
limit. I would agree it has some problems on enforcement. But marijuana 
is illegal. It is supposed to be enforced in every community. It is 
supposed to be enforced in every State. Yet more kids use it than they 
do tobacco products.
  In 1975, Congress commissioned the University of Michigan to track 
youth smoking rates. At that time, youth smoking was at an alltime 
high. However, those rates have started to come down and leveled off 
around 30 percent, all the way up to 1993.
  For some unknown reason at the time, youth smoking rates started to 
increase around 1993, peaking at close to a new alltime high in 1997.
  In 1998, 12th graders who said they tried cigarettes in the last 30 
days was approximately 36 percent, according to the University of 
Michigan.
  Congress did not have a good sense of why this was happening. 
Opponents of the tobacco industry started blaming all this on the 
alleged manipulation of young people by tobacco manufacturers through 
sophisticated marketing and advertising campaigns.
  I heard a Member on the floor last night of the Senate basically 
blaming everything on these very creative marketing techniques. Trust 
me, if they were that effective, every company would be figuring out 
how to adopt those techniques.
  The tobacco industry has a checkered past, at best, when it comes to 
marketing and advertising. But what I am suggesting is, it may not have 
been all due to tobacco. There was another trend occurring in the 1993 
to 1998 period that virtually mirrored that of youth smoking, and it 
was the increased use of illicit drugs by teenagers. Something much 
broader was happening among youths in our society during that time 
period. The Senate's answer to smoking rate increases was to pass a 
massive FDA tobacco regulation bill, the exact bill we are debating 
today. Congress said nothing else would work to save our kids and bring 
down youth smoking rates.
  Senator Kennedy made the following remarks during the 1998 Senate 
floor debate to emphasize the need to protect our children. I quote:

       FDA Commissioner David Kessler has called smoking a 
     ``pediatric disease with its onset in adolescence.'' In fact, 
     studies show that over 90 percent of the current adult 
     smokers began to smoke before they reached the age of 18. It 
     makes sense for Congress to do what we can to discourage 
     young Americans from starting to smoke during these critical 
     years. . . . Youth smoking in America has reached epidemic 
     proportions. According to a report issued last month by the 
     Centers for Disease Control and Prevention, smoking rates 
     among high school students soared by nearly a third between 
     1991 and 1997. Among African-Americans, the rates have soared 
     by 80 percent. More than 36 percent of high school students 
     smoke, a 1991 year high. . . . With youth smoking at crisis 
     levels and still increasing we cannot rely on halfway 
     measures. Congress must use the strongest legislative tools 
     available to reduce smoking as rapidly as possible.

  Senator Kennedy, on the Senate floor, May 19, 1998.
  Of course, the Senate told the American public that passage of the 
massive FDA tobacco regulation bill back in 1998 contained the 
``strongest legislative tools available'' to address youth smoking 
issue.
  Congress did not pass the FDA bill we are debating today. What 
happened with youth smoking rates? They decreased since 1998 to current 
alltime lows. I am talking about record lows over a 34-year period. In 
1998, we were told by some in the Senate that youth smoking rates would 
not come down absent a major bureaucratic expansion over tobacco at 
FDA. Those Senators were wrong, dead wrong.
  Today, we continue the same debate over basically the same bill, and 
we are debating this as if nothing else has happened or changed. 
Obviously, something we are doing across this country is working, and 
it has nothing to do with what Congress is talking about doing. It has 
to do with the passage of the Master Settlement Agreement, advertising 
restrictions, awareness campaigns, and education.
  None of these things are enhanced in H.R. 1256, the Kennedy bill. It 
is about design, not about keeping kids from smoking. CBO recently 
stated that if it was enacted, youth smoking would reduce, over the 10-
year period, 2 percent--excuse me, 11 percent for youth, 2 percent 
overall. But according to the University of Michigan, youth smoking 
rates have declined by 5 percent over the last 5 years and 16 percent 
over the last 10 years.
  If this is an indication of how youth smoking rates will go over the 
next 10 years, we will actually slow the decline by passing this bill.
  Let me say that again. My colleagues do not understand. We slow the 
decline of youth usage by actually passing this bill. It is the 
University of Michigan, it is the Congressional Budget Office, all very 
reputable agencies.
  I know I have a colleague on the floor who wants to speak. I am going 
to yield the floor to him. But let me remind my colleagues, we are 
talking about a massive expansion of regulation for the FDA, not a 
massive expansion of regulation over tobacco. There are a host of 
agencies currently that regulate tobacco. It is the most regulated 
product in the United States of America. Now we want to centralize that 
regulation into the FDA.
  Let me read the FDA's mission statement:

       The FDA is responsible for protecting the public health by 
     assuring the safety, efficacy, and security of human and 
     veterinary drugs, biological products, medical devices, our 
     Nation's food supply, cosmetics and products that emit 
     radiation.

  Just in the first phrase, ``protecting the public health,'' you are 
not protecting public health when you allow cigarettes to be sold. So 
the fact that we have constructed a bill that grandfathers every 
existing product but makes it practically impossible to bring to market 
reduced-risk products that allow Americans to give up the cigarettes 
and to move to something else, the CBO was right, it will slow the 
reduction in smoking rates. We do nothing for disease and death. We do 
more for disease and death by not passing legislation than we do by 
passing legislation. If the authors of this bill are, in fact, honest 
and the effort is to reduce youth access and youth usage, then the 
Members of the Senate should do nothing.
  Hopefully, tonight Senator Hagan and I will offer a substitute that 
brings as much regulatory authority to an entity outside the Food and 
Drug Administration but one under the Secretary of Health and Human 
Services. Why? Because I spent 15 years in Washington trying to protect 
the integrity and the gold standard of the FDA, so that when every 
American goes to bed at night and they take that prescription they got 
from a pharmacist prescribed by a doctor, they don't have any question 
as to whether, one, it is safe, or, two, it is going to work; that when 
they go to the hospital and all of a sudden a doctor shows them a 
procedure they are going to have and a medical device is involved, they 
are not sitting wondering: Is this going to work? Is it going to hurt 
me? Because the FDA has already said it is safe and effective; as we 
bring on this new line of biological products that are going to cure 
terminal illnesses that are very expensive, we are not going to do it 
in a way that hurts our health because the FDA's gold standard is in 
place; that when we go to the store and we buy food, we are going to be 
assured it is safe, something we haven't been able to do for the last 
few years--spinach contamination, salmonella in peanut butter. The list 
goes on and on.
  Why, with an agency that is struggling to meet their core mission, 
would we ask them to take on a product that in legislation we say we 
know you cannot prove it is protecting public health

[[Page 13654]]

or it meets safety and efficacy, but on that we want you to turn your 
head, we want you to ignore the core mission for this new jurisdiction 
we are going to give you, but for everything else, we want you to apply 
that gold standard, we want to ensure drug safety, device safety, food 
safety but not with tobacco.
  To my colleagues, it is very simple. Read the bill. You won't vote 
for this bill. You want to reduce youth consumption of tobacco? It is 
real simple. We reduce it faster by doing nothing.
  Again, I think there will be a substitute that all Members can vote 
for tonight. It accomplishes further reductions of youth usage, because 
we don't constrict less harmful products in the future from coming to 
the market. We don't lock an adult population in to only being smokers 
because they are addicted to nicotine. We give them options, such as 
Sweden gave their citizens, where they have reduced adult tobacco 
smoking at incredible rates because of innovative new products that 
deliver nicotine in a way that reduces the risk of disease and reduces 
the rate of death.
  If the objective here is to reduce disease, to reduce death, to 
reduce youth usage, then I would encourage my colleagues tonight, when 
Senator Hagan and I introduce the substitute, to listen very carefully 
and support the substitute. But at the end of the day, if your 
objective is to reduce youth consumption of cigarettes, in the absence 
of passing that substitute, it is very clear--the CBO and the 
University of Michigan says: Pass nothing.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Madam President, I ask unanimous consent to refer to 
these tobacco orb products during my speech.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MERKLEY. Madam President, I want to start by thanking Senator 
Dodd for his tireless advocacy on this issue. The need to regulate 
tobacco products has been evident for many years, and for year after 
year it has been impossible to accomplish this goal. It is frankly 
unbelievable that while we heavily regulate the production and sale of 
aspirin, a product that is not addicting and not destructive, tobacco, 
which is addictive and is destructive, goes without regulation.
  This bill will go a long way in helping to keep these addictive 
tobacco products out of the hands of our children. This bill gives the 
FDA the legal authority it needs to reduce youth smoking by preventing 
tobacco advertising targeting children. It provides the FDA with the 
authority to prevent the sale of tobacco products to minors as well as 
the authority to prevent the tobacco industry from misleading the 
public about the dangers of smoking.
  Additionally, this bill takes important steps in the regulation of 
smokeless tobacco. We are all familiar with the dangers posed by 
cigarettes--the health effects have long been documented--both on users 
and bystanders. We are also familiar with the steps being taken in many 
cities and many States to rid our public areas of secondhand smoke. 
These actions, thankfully, have been quite successful, but they lead to 
a major dilemma for tobacco companies: if smoking becomes socially 
unacceptable, how can the industry replace the hundreds of thousands of 
tobacco addicts who die every year? The industry's response has been to 
bet heavily on smokeless tobacco products and to bet on addicting 
youngsters to those products.
  Chewing tobacco has been around for a while, but it has its own 
limitations. There aren't many places--outside of this very Chamber--in 
the United States where you can find a spittoon. So the tobacco 
companies are looking for hip new smokeless tobacco products that don't 
require spitting and that can appeal to a new generation of children.
  This picture was taken just a few blocks from this Capitol. It is of 
a new product called ``Snus'' that R.J. Reynolds is selling nationwide. 
It is a flavored, pouched tobacco product advertised as not requiring 
spitting. And as you can see here, it is advertised next to displays of 
candy and Peppermint Patties. I should note that this container was not 
the original designed for the Snus container. The original container 
was round. As reported by the Portland Oregonian last December, it came 
in containers similar to chewing tobacco, but teachers in schools 
noticed these containers in their students' pockets.
  So now R.J. Reynolds has redesigned them so that teachers can't 
recognize that these are smokeless tobacco products in their students' 
pockets.
  Clearly, the marketing is aimed at young people. But it gets even 
worse. Now R.J. Reynolds has come out with another product that they 
are test marketing in three cities across the country, one of which is 
in my home State of Oregon. Portland, OR, is a site for the test market 
of tobacco candy.
  Tobacco candy, as you see here, also comes in what was designed to 
look like a cell phone in your pocket rather than a traditional can of 
smokeless tobacco. They have done two other things to make this product 
appealing, and I have a sample right here. First, they come in candy 
flavors. This one is euphemistically called ``fresh.'' It is a mint 
candy. This one is euphemistically called ``mellow.'' It is a caramel-
flavored candy. So they have thrown in the candy flavoring and a really 
cool dispenser. And not only does the dispenser look like a cell 
phone--so teachers can't tell what it is--but it has a feature taken 
from the world of the Pez candy dispenser. You pop it open, and out 
pops a single tobacco tablet. You close it and shake it around, open it 
up again, and out pops another one. So we have three features here 
designed specifically to market to children: the cell phone shape, the 
candy flavoring, and the Pez-style dispenser.
  Now, why is it tobacco companies need to market to children? It is 
because when adult testers try out a tobacco product, they rarely 
continue using it. Therefore, they rarely become a customer of a 
tobacco company. A teenager who tries one of these products--whose 
brain is still being wired and, therefore, is much more susceptible to 
the influence of nicotine--is much more likely to become addicted and 
become a lifelong customer or reliable customer. That is why the 
tobacco companies are marketing tobacco candy to our children.
  There is no question that this tobacco candy is dangerous. The 
Indiana Poison Control has estimated that each tablet delivers 60 to 
300 percent of the nicotine in a single cigarette. The product is 
addictive. The product causes cancer. And unless we pass this bill and 
give the FDA the authority to regulate, soon you will see this tobacco 
candy in a convenience store near you, and we will see more displays 
such as the one shown here in Portland--tobacco candy advertised right 
next to ice cream.
  Once the companies master the technique of turning tobacco into kid-
friendly candy, there is no end to the variety of products that can be 
turned out. Already RJR has announced they are planning to launch two 
new forms of tobacco candy; sticks, which look like toothpicks you suck 
on, and strips, which are nearly identical to breath mint strips that 
dissolve on your tongue.
  Everywhere I go and talk about these products, people are outraged. 
Meanwhile, the tobacco industry and its champions are trying to justify 
these products as safe alternatives to smoking. That just isn't so. And 
that rhetoric poses a real danger to consumers who might think 
smokeless tobacco is harmless. In fact, this very rhetoric shows why we 
need to have the FDA regulating this product. In fact, the Surgeon 
General has determined the use of smokeless tobacco can lead to oral 
cancer, gum disease, heart attacks, heart disease, cancer of the 
esophagus, cancer of the stomach.
  This is not a safe product. This is not safe tobacco. It is a product 
like cigarettes that causes cancer and kills. Further, it is not a 
method of helping smokers to quit smoking. The purpose of smokeless 
tobacco candy is not to help people quit tobacco products, it is 
designed to addict them to tobacco products. The idea that the tobacco 
companies would be out marketing a

[[Page 13655]]

product designed to get people to quit using tobacco products is, quite 
frankly, obviously ridiculous. Unlike Nicorette or the nicotine patch, 
which are designed to help people quit smoking, tobaccoless candy does 
not help you quit and the doses do not get any lower over time.
  The U.S. Public Health Service Clinical Practice Guideline notes:

       The use of smokeless tobacco products is not a safe 
     alternative to smoking, nor is there evidence suggesting it 
     is effective in helping smokers quit.

  It is no secret these products are dangerous. Six years ago to this 
very day, Surgeon General Richard Carmona talked about what he called 
the ``public health myth'' that smokeless tobacco is a good alternative 
to smoking. He emphatically said that was simply not true, and I think 
it is worth quoting him at some length:

       I cannot conclude that the use of any tobacco product is a 
     safer alternative to smoking. This message is especially 
     important to communicate to young people, who may perceive 
     smokeless tobacco as a safe form of tobacco use. Smokeless 
     tobacco is not a safe alternative to cigarettes. Smokeless 
     tobacco does cause cancer.

  That statement is from a 2003 House hearing on tobacco harm 
reduction, and I ask unanimous consent, Madam President, to have 
printed in the Record the entire prepared testimony delivered that day.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Testimony Before the Subcommittee on Commerce, Trade, and Consumer 
 Protection, Committee on Energy and Commerce, United States House of 
                            Representatives


      Can Tobacco Cure Smoking? A Review of Tobacco Harm Reduction

   Statement of Richard H. Carmona, M.D., M.P.H., F.A.C.S., Surgeon 
  General, U.S. Public Health Service, Acting Assistant Secretary for 
            Health, Department of Health and Human Services

       Mr. Chairman, distinguished members of the Subcommittee, 
     thank you for the opportunity to participate in this 
     important hearing. My name is Richard Carmona and I am the 
     Surgeon General of the United States of America.
       Let me start with a few statements that were once accepted 
     throughout society that have now been relegated to the status 
     of myth.
       Men do not suffer from depression.
       Domestic violence is a `family' or `private' matter.
       The HIV-AIDS epidemic is of no concern to most Americans.
       All of us here know that these three statements are very 
     dangerous public health myths.
       My remarks today will focus on a fourth public health myth 
     which could have severe consequences in our nation, 
     especially among our youth: smokeless tobacco is a good 
     alternative to smoking. It is a myth. It is not true.
       As the nation's Surgeon General, my top responsibility is 
     to ensure that Americans are getting the best science-based 
     information to make decisions about their health. So I very 
     much appreciate the opportunity to come before this 
     Subcommittee today and help refute this dangerous idea.
       First, let me emphasize this:
       No matter what you may hear today or read in press reports 
     later, I cannot conclude that the use of any tobacco product 
     is a safer alternative to smoking. This message is especially 
     important to communicate to young people, who may perceive 
     smokeless tobacco as a safe form of tobacco use.
       Smokeless tobacco is not a safe alternative to cigarettes.
       Smokeless tobacco does cause cancer.
       Our nation's experience with low-tar cigarettes yields 
     valuable lessons for the debate over smokeless tobacco.
       Tobacco use is the leading preventable cause of death in 
     the United States.
       Each year, 440,000 people die of diseases caused by smoking 
     or other form of tobacco use--that is about 20 percent of all 
     deaths in our nation.
       The office I lead as Surgeon General has long played a key 
     role in exposing the risks of tobacco use. In 1986, the 
     Surgeon General's Report The Health Consequences of Using 
     Smokeless Tobacco reached four major conclusions about the 
     oral use of smokeless tobacco:
       1. Smokeless tobacco represents a significant health risk;
       2. Smokeless tobacco can cause cancer and a number of non-
     cancerous oral conditions;
       3. Smokeless tobacco can lead to nicotine addiction and 
     dependence; and
       4. Smokeless tobacco is not a safer substitute for 
     cigarette smoking.
       Recognizing these serious health consequences, Congress 
     passed the Comprehensive Smokeless Tobacco Health Education 
     Act in 1986. This law required the placement of Surgeon 
     General's warnings on all smokeless tobacco products.
       Mr. Chairman and Members of the Subcommittee, I 
     respectfully submit that smokeless tobacco remains a known 
     threat to public health just as it was when Congress acted in 
     1986.
       Conversely, time has only brought more disease, death and 
     destroyed lives.
       The National Toxicology Program of the National Institutes 
     of Health continues to classify smokeless tobacco as a known 
     human carcinogen--proven to cause cancer in people.
       As Surgeon General I cannot recommend use of a product that 
     causes disease and death as a `lesser evil' to smoking. My 
     commitment, and that of my office, to safeguard the health of 
     the American people demands that I provide information on 
     safe alternatives to smoking where they exist.
       I cannot recommend the use of smokeless tobacco products 
     because there is no scientific evidence that smokeless 
     tobacco products are both safe and effective aids to quitting 
     smoking.
       Smokers who have taken the courageous step of trying to 
     quit should not trade one carcinogenic product for another, 
     but instead could use Food and Drug Administration-approved 
     methods such as nicotine gum, nicotine patches, or 
     counseling.
       While it may be technically feasible to someday create a 
     reduced-harm tobacco product, the Institute of Medicine 
     recently concluded that no such product exists today. When 
     and if such a product is ever constructed, we would then have 
     to take a look at the hard scientific data of that particular 
     product.
       Our nation's experience with low-tar, low-nicotine 
     cigarettes is instructive to the issue at hand. Low-tar, low-
     nicotine cigarettes were introduced in the late 1960's and 
     widely endorsed as a potentially safer substitute for the 
     typical cigarette on the market at that time. Within a 
     decade, the low-tar brands dominated the cigarette market. 
     Many smokers switched to them for their perceived health 
     benefits.
       Unfortunately, the true health effects of these products 
     did not become apparent for another 10 to 20 years. We now 
     know that low-tar cigarettes not only did not provide a 
     public health benefit, but they also may have contributed to 
     an actual increase in death and disease among smokers.
       First, many smokers switched to these products instead of 
     quitting, which continued their exposure to the hundreds of 
     carcinogens and other dangerous chemicals in cigarettes. 
     Second, to satisfy their bodies' craving for nicotine, many 
     smokers unwittingly changed the way they smoked these low-tar 
     cigarettes: they began inhaling more deeply, taking more 
     frequent puffs, or smoking more cigarettes per day.
       In fact, we now believe that low-tar cigarettes may be 
     responsible for an increase in a different form of lung 
     cancer, adenocarcinoma, which was once relatively rare. This 
     cancer is found farther down in the lungs of smokers, 
     indicating deeper inhalations, and appears linked to a 
     specific carcinogen particularly present in low-tar brands.
       We must learn the lessons of the low-tar cigarette 
     experience. Not only did they fall to reduce an individual's 
     risk of disease, but they also appear to have increased 
     population risk by delaying quitting and potentially 
     contributing to initiation among young people. This has 
     taught us that we must move cautiously in recommending any 
     supposedly safer alternative for people trying to quit 
     smoking--because now, with more knowledge and the benefit of 
     hindsight, the science does not support early recommendations 
     on low-tar cigarettes.
       Mr. Chairman, in the interest of time I will shortly ask 
     that the remainder of my statement and the scientific 
     information contained in it be considered as read and made 
     part of the record. But before I do that, I would like to ask 
     for this Subcommittee and the Congress' help in getting the 
     message out about the dangers of the myth of smokeless 
     tobacco.
       All of us in this room are very concerned about our 
     nation's youth. Kids growing up today have a tough time of 
     it. In addition to the normal struggles of puberty, many kids 
     are facing a host of other challenges. Many, especially 
     minority kids, must struggle to find their way in unsafe 
     neighborhoods.
       So the temptation to engage in behavior that is not 
     healthy, and the opportunity to do so, is very hard for our 
     young people to resist.
       According to a 2000 survey by the Substance and Mental 
     Health Services Administration (SAMHSA) (The National 
     Household Survey on Drug Abuse), about 1 million kids from 
     age 12-17 smoke every day. Another 2 million kids smoke 
     occasionally.
       And we know that smoking is often not a ``stand-alone'' 
     risk behavior; it travels with others. The SAMHSA survey 
     found that youth who were daily cigarette smokers or heavy 
     drinkers were more likely to use illicit drugs than either 
     daily smokers or heavy drinkers from older age groups. More 
     than half of 12-17 year olds who were daily smokers had also 
     used illicit drugs within the past month.
       Every day, more than 2,000 kids in the U.S. will start to 
     smoke, and more than 1,000

[[Page 13656]]

     adults will die because of smoking. We have to get youth to 
     stop starting. But the answer is not smokeless tobacco.
       We have evidence to suggest that instead of smokeless 
     tobacco being a less dangerous alternative to smoking, just 
     as smoking is a gateway to other drugs, smokeless tobacco is 
     a gateway to smoking.
       So we must redouble our efforts to get our youth to avoid 
     tobacco in all forms.
       We have some real work to do on the ``culture'' of 
     smokeless tobacco, which is glamorized by some sports stars. 
     Chicago Cub Sammy Sosa, who has made a public commitment to 
     avoiding smokeless tobacco, is a great example for kids. Past 
     baseball great Joe Garagiola is now Chairman of the National 
     Spit Tobacco Education program, and regularly lectures young 
     players against the dangers of smokeless tobacco.
       As Members of Congress, you can lead by example too, not 
     just in legislation, but in your own lives. I encourage you 
     to avoid tobacco in all its forms. Do not fall for the myth--
     a very dangerous public health myth--that smokeless tobacco 
     is preferable to smoking. Do not let America's youth fall for 
     it, either.
       From the perspective of individual risk, the cumulative 
     effect on smokers of switching to smokeless tobacco is simply 
     not known. But we clearly know that use of smokeless tobacco 
     has serious health consequences. Overall, smokeless tobacco 
     products have been classified as a known human carcinogen. 
     And limited scientific data indicate that former smokers who 
     switch to smokeless tobacco may not have as great a decrease 
     in lung cancer risks as quitters who do not use smokeless 
     tobacco.
       From the perspective of population risk, there are even 
     more unanswered questions. Even if there was some decreased 
     risk for smokers who switch to smokeless tobacco, that 
     benefit may be more than offset by increased exposure of the 
     overall population to this known carcinogen.
       The marketing of smokeless tobacco as a potentially safer 
     substitute for cigarettes could lead to:
       More smokers switching to smokeless tobacco instead of 
     quitting tobacco use completely;
       A rise in the number of lifetime smokeless tobacco users if 
     more youth begin using smokeless tobacco;
       A rise in the number of cigarette smokers as a result of 
     more youth starting to use smokeless tobacco and then 
     switching to cigarette use; and
       Some former smokers returning to using tobacco if they 
     believe that smokeless tobacco is a less hazardous way to 
     consume tobacco.
       Concerns about youth initiation are especially troubling. 
     The scientific evidence is clear that use of smokeless 
     tobacco is a gateway to cigarette use. Young people may be 
     especially attracted to smokeless tobacco if they perceive it 
     to be safer than cigarettes. Studies show that more than one 
     in five teenage males have used smokeless tobacco, with age 
     12 being the median age of first use. Surveys also show that 
     more than two in five teenagers who use smokeless tobacco 
     daily also smoke cigarettes at least weekly. Finally, 
     independent research and tobacco company documents show that 
     youth are encouraged to experiment with low-nicotine starter 
     products and subsequently graduate to higher-level nicotine 
     brands or switch to cigarettes as their tolerance for 
     nicotine increases.
       Finally, we simply do not have enough scientific evidence 
     to conclude that any tobacco product, Including smokeless 
     tobacco, is a means of reducing the risks of cigarette 
     smoking. At this time, any public health recommendation that 
     positions smokeless tobacco as a safer substitute for 
     cigarettes or as a quitting aid would be premature and 
     dangerous. With the memory of our experience with low-tar 
     cigarettes fresh in our minds, we must move extremely 
     cautiously before making any statement or endorsement about 
     the potential reduced risk of any tobacco product.
       Finally, my strong recommendation as Surgeon General is a 
     call for sound evidence about tobacco products and their 
     individual and population based health effects. We need more 
     research. We need to know more about the risks to individuals 
     of switching from smoking to smokeless; and we need to know 
     more about the risks to the entire population of a promotion 
     campaign that would position smokeless tobacco as a safer 
     substitute for smoking.
       Until we have this science base, we must convey a 
     consistent and uncompromised message: there is no safe form 
     of tobacco use.
       Thank you. I would be happy to answer any questions.

  Mr. MERKLEY. Madam President, it is a travesty that R.J. Reynolds can 
launch an addictive carcinogenic candy targeted at children with no 
review by the Food and Drug Administration. Nicorette--designed to help 
you quit smoking--went to the FDA for approval, but caramel tobacco 
candy or mint tobacco candy--designed to hook kids on tobacco--is on 
the shelves in Portland, OR, right now with zero oversight.
  This bill will finally bring some transparency and common sense to 
the regulation of tobacco. Finally, the FDA will be able to address the 
single greatest public health menace in our Nation. I am pleased that 
this bill does include an amendment that Senator Brown and I authored 
to require the Tobacco Advisory Committee to expedite the review of 
tobacco candy. I look forward to passing this bill and to keeping 
tobacco candy from store shelves before the industry succeeds in 
hooking a whole new generation of our children.
  Madam President, I yield the floor, and 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. REED. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. Madam President, I rise today in support of the Family 
Smoking Prevention and Tobacco Control Act, but first, I would like to 
take a moment to recognize the outstanding leadership of Chairman 
Kennedy on this important public health issue. This is not the first 
time he has ushered a bill on this topic from committee to the Senate 
floor. I am confident that my colleagues, in recognition of the 
tremendous, hazardous effects that tobacco has on children, 
adolescents, adults, and seniors, will join me in fulfilling one of 
chairman Kennedy's wishes, and mine, of finally seeing this bill signed 
into law.
  I would also like to thank Senator Dodd for his dedication in 
carrying out the aggressive schedule of the HELP Committee set forth by 
the chairman so we can bring this legislation to the floor.
  As a cosponsor of this legislation, I firmly believe that we cannot 
afford to wait another day for it to be enacted. This is not the first 
time that I have risen to speak on the importance of regulating the 
sale of tobacco products, but I am hopeful that with this legislation 
we will take a giant leap toward eradicating the use of nicotine, by 
discouraging our youth from ever lighting-up, and chip away at 
skyrocketing smoking-related healthcare costs.
  Every year that passes, and this legislation is not enacted, another 
4,700 children in Rhode Island try a cigarette for the first time--that 
amounts to 1,400 children in my State alone becoming regular, daily 
smokers each year. These new smokers become part of the 8.6 million 
individuals nationwide suffering from smoking-caused illnesses; they 
become part of the 400,000 deaths every year attributed to tobacco use. 
We can and must do more to curb the use of this very serious and deadly 
poison. This is a public health emergency that demands action.
  Over the years, the tobacco industry has been confronted with 
opportunities to do the right thing--to be honest about the health 
effects of tobacco or even the intended targets of various marketing 
campaigns. In every instance they passed up that opportunity and 
actively fought to continue alluring generation after generation to use 
tobacco products.
  I would like to use the time that I have today to walk through some 
of those occasions in an attempt to demonstrate how important the 
Family Smoking Prevention and Tobacco Control Act is to the American 
people, not only to our health, but to our economic prosperity.
  In 1994, while I was in the House of Representatives, seven 
executives from the tobacco industry took an oath before a House 
committee that they would tell the truth about tobacco. In their 
statements and responses to questions from members on the committee, 
all seven individuals stated that they believed nicotine was not 
addictive, and that new marketing practices were not designed to reach 
younger and younger age groups, below the legal smoking age of 18.
  In order to support these claims, the executives cited research 
councils and institutes. But these statements were contrary to what 
many public health

[[Page 13657]]

officials were saying, and what I believed. This further obscured the 
notion that smoking was a direct cause of disease.
  A total of 46 States--including my own--States in which the majority 
of my colleagues represent--then proceeded to call their bluff, one 
lawsuit at a time.
  Through these cases, the American people learned that the lies and 
deceit of the tobacco industry extended far beyond that of a 
Congressional hearing room. The suits unearthed that the tobacco 
industry had established and funded the councils and institutes 
claiming tobacco was not a health hazard; and had internal documents 
stating that No. 1, nicotine is addictive; No. 2, smoking is a habit of 
addiction; and No. 3, that in order to continue to prosper, cigarettes 
must be marketed to younger and younger age groups--below the legal 
smoking age of 18.
  The tobacco industry settled these lawsuits. The agreement, totaling 
nearly $206 billion, was ordered to be distributed to the States in an 
effort to recoup Medicaid dollars spent on smoking-related health care 
costs. While $206 billion seems like a lot to you and me, this amount 
of money only accounts for approximately 7 years of the Medicaid 
budgets of the 46 States.
  The fact that the industry did settle should have been a clear sign 
that tobacco production and marketing needs to be regulated. 
Unfortunately, around the same time that the settlement occurred, the 
Supreme Court narrowly ruled--on a 5-to-4 margin--that the FDA did not 
have such authority to regulate their products. The tobacco industry 
continued to aggressively market tobacco products.
  Nearly 10 years later, this past December, the Supreme Court upheld 
that tobacco firms could, in fact, be charged at the State level with 
deceptive advertising practices of cigarettes. We have on the one hand, 
no regulation; on the other hand, the possibility of State enforcement.
  These two Supreme Court decisions further complicate the message 
received by Americans regarding the use, marketing and distribution of 
tobacco. In essence, the industry could be held liable for certain 
advertising practices, but direct, regulatory oversight of those 
practices does not exist. Appropriate guidelines do not exist. With 
this bill, we have the opportunity to ensure that guidelines are 
established.
  To add yet another layer to this debate, only 2 weeks ago, the U.S. 
District Court of Appeals for the District of Columbia ruled that the 
tobacco industry falsely advertised ``light'' and ``low-tar'' 
cigarettes under the guise that they were less dangerous than other 
products. This ruling comes after 10 years from the date the suit was 
originally filed--10 years too late to prevent 10,000 Rhode Island 
children beginning to regularly use tobacco. Had we enacted the Family 
Smoking Prevention and Tobacco Control Act, or a similar version of 
this legislation, years ago, we could have prevented some of those in 
my State and across the country from ever smoking. Instead, the debate 
has dragged on for 10 years.
  Unfortunately, this debate will continue to drag on. The tobacco 
industry has already publicly stated that it will continue to argue the 
decision that was recently rendered. Rather than taking the tortuous, 
time-consuming and very expensive path of taking the case through 
litigation, I think we have to give the FDA the authority to regulate 
tobacco products.
  We have the opportunity before us to put an end to the courtroom 
drama. With the Family Smoking Prevention and Tobacco Control Act, we 
can give the FDA the authority to regulate tobacco, restrict illegal 
advertising practices targeting children, prevent the unlawful sale of 
tobacco to our Nation's youth, and strengthen warning labels.
  With this legislation, everyone wins. The tobacco industry would have 
clear guidance on advertising practices which could help them avoid 
lengthy litigation; young people will not be targeted by aggressive 
tobacco media campaigns; and the public health crisis caused by tobacco 
use--which costs the American people in health care dollars, in lost 
productivity, and in loss of loved ones--tremendous prices--would 
hopefully begin to fade.
  In preparation for our discussion, I looked back at some of the past 
statements that I have made in support of regulating tobacco--and one 
sticks out in my mind: the tobacco industry has worked hard to earn the 
trust of the American people.
  We must try to win that trust back. We must empower the FDA to 
regulate tobacco in order to rein in the use of tobacco by children, 
control the access that our children have to tobacco, and warn the 
American public about its dangers.
  The Senate is finally once again on the path to having a meaningful 
debate about our Nation's health care system. It is my hope that this 
debate will result in appropriate, high quality health care coverage 
and access for every American. Of course, we hope to do all of this at 
the lowest possible cost.
  If we are serious about reforming our health care system, why wait? 
Smoking-related health care costs are skyrocketing. Today the average 
cost of a pack of cigarettes in the country is about $5 but the social 
cost is much more.
  Every year, the public and private health care expenditures caused by 
smoking total approximately $100 billion, and $100 billion in lost 
productivity. These are staggering totals.
  I will repeat: we literally cannot afford to wait another day for 
this legislation to be enacted.
  We have the opportunity to begin charting a new course today. With 
this bill, we will begin to chip away at health care costs, steer our 
youth away from smoking, and pave the way for a healthier future for 
our Nation.
  I look forward to working with my colleagues to enact this important 
piece of legislation and set forth on this new path for a healthier and 
more prosperous America.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Hagan). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SANDERS. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANDERS. Madam President, I am very pleased that we are finally 
taking up this very important legislation. Regulating tobacco through 
the FDA is an essential part of addressing public health issues related 
to tobacco use, and I fully support this long overdue legislation. The 
cost of smoking is estimated at $96 billion a year in health care 
costs. The human toll is even more appalling: 440,000 smoking-related 
deaths per year. Tobacco is responsible for one-third of all cancer 
deaths in the United States each year, and tobacco use is the most 
preventable cause of death in the country.
  There are many important provisions in this bill, but this issue is 
primarily about our children. It is appalling that in Vermont, one in 
every six high school students smokes cigarettes, and nationally 20 
percent--one in every five high school students--smoke. Every day, 
about 3,600 children between 12 and 17 years of age smoke their first 
cigarette; 1,100 of them will become regular smokers, and 300 of those 
will ultimately die from this habit. That is condemning over 100,000 
kids every year to a certain early death caused by tobacco. No wonder 
that 70 percent of voters strongly support FDA having the authority to 
regulate tobacco.
  Make no mistake, tobacco marketing and marketing to kids is big 
business. The tobacco industry spends about $36 million every day 
marketing and advertising its addictive products in the United States. 
That is over $13 billion a year. The multinational corporations that 
market tobacco are not spending that kind of money if they don't expect 
a big return. Some of these ads are not just trying to get older 
addicted smokers to switch brands, they are marketing to girls and 
young women to get them to start smoking and they are marketing to 
teenage boys to get them to start smoking. They are adding candy 
flavors to get young people to start smoking.

[[Page 13658]]

  That our Nation's most vulnerable are subjected to these kinds of 
marketing campaigns of multimillion-dollar profit companies is a 
disgrace and an outrage. Can one imagine a company trying to addict our 
young people to a habit which will prematurely kill them? I am not 
quite sure what kind of morality exists on the part of people who do 
this. We are talking about an industry where the largest company, 
Philip Morris, brought in $18.5 billion in revenue in 2007 from their 
U.S. business alone and over $64 billion in total revenues 
internationally. The tobacco industry spent nearly $28 million lobbying 
Congress in 2008, and from 1998 to 2006, they spent over $248 million 
to prevent Congress from acting to protect the children and the 
citizens of our country from this addictive practice. Given these 
figures and the fact that profit margins are estimated at 46 cents per 
pack for Philip Morris, I cannot understand any argument against 
legislation to regulate the marketing, advertising, and product 
standards of cigarettes and other tobacco products.
  Tobacco has been considered more addictive than heroin. Let me 
repeat: Tobacco has been considered more addictive than heroin. In 
fact, there are a number of anecdotal stories of former heroin addicts 
who were able to kick their heroin habit but not their tobacco habit. 
It was just too hard to quit tobacco compared to heroin. Imagine that.
  Tobacco companies are adding nicotine and other chemicals to their 
products to make these products even more addictive. And they are not 
regulated. Nobody regulates them. They can add whatever they want 
whenever they want. So we have multinational corporate executives in 
three-piece suits making huge amounts in compensation packages based on 
selling a killing and addictive product to the American people and to 
our children. We should be very clear when we take a look at these CEOs 
and understand that they are nothing more than high-priced and high-
paid drug pushers. This Congress has spoken out repeatedly against 
those horrendous people, the lowest of the low, who are trying to get 
our kids into heroin and other drugs. We should look at these CEOs in 
the same way and say to them: How dare you try to sell addictive 
products to our kids, get them hooked into smoking cigarettes, and 
force them to end their lives prematurely and, in many cases, very 
painfully.
  While one major part of this issue is stopping tobacco use before it 
starts, Congress will also need to take up the issue of cessation. 
About 70 percent of all smokers say they want to quit smoking, but 
tobacco is so addictive that even the most motivated may try to quit 
eight or nine times before they are able to do so. I look forward to 
working with my colleagues in the Senate to address what I see as an 
addiction that leaves hard-working people struggling to make ends meet 
with limited choices in terms of cessation programs. What we have to do 
as a nation--and I know it is outside the scope of this particular 
bill--is to make it as easy as possible for anyone in America who wants 
help in order to stop smoking and kicking the habit to be able to do 
so. We are not there right now. Sometimes it is complicated. Sometimes 
it is expensive. Sometimes people do not know how to access cessation 
programs. But I think that is a goal we must strive for.
  Studies have shown smoking has become even more concentrated among 
populations with lower incomes and with less education. Why do low-
income people smoke? Medical research shows that being poor is, 
needless to say, extremely stressful. And as anyone who has ever been 
addicted to tobacco knows, being anxious, being stressful makes you 
reach for a cigarette.
  We have a lot of work in front of us. I think this bill is a very 
good step forward. The bottom line is, this Congress has to, through 
the FDA, regulate tobacco. Our goal has to be for these companies to 
stop pushing their dangerous and addictive product onto our people, 
especially our kids. Our goal has to be to come up with programs to 
make it as easy as possible for people to get off their addiction.
  So we have a lot of work in front of us. I think this bill is a very 
good step forward.
  Having said that, Madam President, I yield the floor and suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Feingold pertaining to the introduction of S. 
1173 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mr. FEINGOLD. Madam President, I yield the floor, and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. UDALL of New Mexico. Madam President, I ask unanimous consent 
that the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. UDALL of New Mexico. Madam President, I rise to support the 
Family Smoking Prevention and Tobacco Control Act, and I wish to start 
by thanking Senator Kennedy and all those who have fought for this 
legislation over the years.
  Watching this debate, I can't help but think of the movie ``Groundhog 
Day.'' In that movie, Bill Murray has to live the same day over and 
over. Like him, I have been here before. We have all been here before.
  The FDA first attempted to regulate tobacco products in August 1996, 
almost 13 years ago. In 2000, a narrow majority on the Supreme Court 
ruled that the Congress had not given the FDA authority to regulate 
tobacco. But even as the Court struck down the FDA rules, it noted that 
tobacco poses ``one of the most troubling public health problems facing 
our Nation today.''
  Immediately after that decision, this body considered legislation to 
provide the needed authority. That legislation was introduced by the 
Senator from Rhode Island and our senior Senator from New Mexico. They 
argued that the FDA regulation of tobacco was ``long overdue.'' They 
pointed out that every day we delayed, more kids would start smoking 
and more citizens would face disease and death. That was almost a 
decade ago.
  Since the FDA first tried to regulate tobacco, more than 20.6 million 
American kids smoked their first cigarette, and more than 2.6 million 
of those kids will die because they did. Almost $1 trillion has been 
spent on health care costs associated with smoking, and 4.6 million 
Americans have lost their lives to cigarettes.
  We do not know how many young people would not be addicted today if 
these companies had been prevented from advertising their products to 
our children. We do not know how many cases of lung cancer and heart 
disease could have been prevented if tobacco companies had not boosted 
nicotine levels and marketed light cigarettes as if these cigarettes 
weren't killers. We don't know how many lives were lost while Congress 
failed to act. But we do know that number is too high--much too high.
  I first became involved with this issue when I was New Mexico's 
attorney general. In May of 1997, we joined a lawsuit that would 
eventually involve 46 States and 6 territories. In some ways, this 
lawsuit was like any other. My client, the State of New Mexico, had 
lost thousands of lives and billions of dollars because of the 
defendant. Our suit simply demanded restitution and damages.
  But on a broader level, the tobacco cases were unprecedented. We were 
responding to a threat that impacts every American. The suit began in 
Mississippi and it spread to almost every State, regardless of politics 
or geography. We were addressing a national problem because the 
Congress had failed to act.

[[Page 13659]]

  In 1998, we negotiated a Master Settlement Agreement that was an 
important step forward. But we knew there was more to be done. Some 
have claimed the settlement makes FDA regulation of the tobacco 
industry unnecessary. As somebody who helped negotiate that agreement, 
let me tell you that nothing could be further from the truth.
  The settlement was not intended as a substitute for adequate Federal 
regulation. In fact, the agreement originally called for FDA regulation 
as an integral part of efforts to protect the public. The National 
Association of Attorneys General recently filed an amicus brief saying 
the settlement has not stopped tobacco companies from marketing to 
kids.
  In fact, tobacco company memos demonstrate that their business 
depends on recruiting what they call ``replacement smokers.'' Companies 
used to strategize about how to attract customers as young as 13, and 
evidence suggests this strategy has not changed. Even after the 1998 
settlement agreement, one tobacco company noted, ``market renewal is 
almost entirely from 18-year-old smokers.'' They do not say they are 
targeting minors. That would be illegal. But somebody is going to have 
to explain to me how you can focus your business model on 18-year-olds 
without marketing to 17-year-olds.
  When I came to Congress after my service as an AG, I strongly 
supported FDA regulation of tobacco. I knew then the settlement did not 
provide the kind of flexibility needed to effectively control tobacco 
industry actions. Since the settlement was signed, the tobacco 
companies have shown us they will evade it at every opportunity. On May 
22, the DC Circuit Court of Appeals affirmed the 2006 ruling that found 
tobacco companies guilty of racketeering and fraud. The original ruling 
contained 1,300 pages describing tobacco company efforts to endanger 
the public health and to cover up their activities. Many of these 
actions were taken after the settlement agreement.
  The court found the tobacco companies ``began to evade and at times 
even violate the settlement agreement's prohibitions almost immediately 
after signing the agreement.'' After disbanding a research program, 
according to the terms of the agreement, the companies initiated a new 
research program with the same office, the same board, and even the 
same phone numbers.
  Given the obvious dangers of tobacco products and the behavior of the 
tobacco company executives over the years, why isn't this product 
already regulated by the FDA? This question was answered implicitly by 
the Supreme Court in 2000, and the answer is instructive. The Court 
found that tobacco, unlike other FDA-regulated drugs, has no health 
benefits. In other words, tobacco is too unhealthy to be regulated.
  Whatever you think of that ruling, it poses a serious question. 
Should an agency that regulates Tylenol be unable to regulate a 
substance that kills 440,000 Americans every year--more than--and think 
about this for a minute--more than alcohol, AIDs, car crashes, illegal 
drugs, murders, and suicides combined? Tobacco kills more than all 
those combined. Is it possible that one of the world's most deadly 
addictive substances should be immune from the rules that govern almost 
every other addictive substance that can be legally sold in this 
country?
  Some of those who have spoken on this bill have pointed out the FDA 
cannot solve the most significant problem with tobacco--that when used 
as directed, it kills the user. But the FDA can stop tobacco companies 
from adding ingredients that make their products more addictive and 
more deadly. It can stop them from lying to consumers about the health 
impact of their products, and it can stop them from marketing to our 
children. In fact, the FDA is particularly qualified to do these 
things.
  As I was preparing to come to the floor today, I got an e-mail from 
one of my constituents in Hobbs, NM, and she reminded me why this bill 
is so important. She had received an e-mail from a tobacco company. The 
company thought she was one of their customers, and they asked her to 
send me a form e-mail opposing this legislation. She forwarded their e-
mail, and at the beginning of the e-mail she wrote:

       They strongly urged me to copy the following message to you 
     and to vote against it. What they don't know is I don't 
     smoke. But my 12 and 7-year-olds do because they have to go 
     visit their dad, who smokes around them. Not only do they get 
     a lot of secondhand smoke, but my oldest one idolizes her dad 
     and will probably end up smoking because of him. So by all 
     means, pass the bill.

  Congress has waited too long to protect this woman and her children. 
It is time to get this done.
  In ``Groundhog Day,'' Bill Murray wakes up to a different day when he 
finally does the right thing. I am hoping we will all wake up after 
this vote to a new day--a day when our citizens have the health 
protections they should expect from their government. I would ask you 
to join me in supporting this commonsense legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Madam President, I yield 45 minutes postcloture time to 
Senator Burr.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Madam President, let me say to my colleague, who had his 
constituent send him a letter and who served in an incredibly effective 
fashion as State attorney general and who was involved in the MSA, the 
MSA was very clear. States extorted--that is what I call it--money from 
the tobacco companies to pay for health care costs. That money that was 
part of the Master Settlement Agreement was laid out on behalf of the 
tobacco industry to address the health care costs in those States but 
also to provide the resources so those States could, in fact, do 
cessation programs for adults to stop smoking.
  What is our experience in the country relative to the recommendations 
given by the Centers for Disease Control to those States in terms of 
what they ought to spend on programs to get individuals to stop 
smoking? Well, in the State of New Mexico, they have done very well. 
They have actually spent 44 percent of what the CDC suggested they 
spend.
  But I think you would also find it shocking to know that the 
prevalence of marijuana usage in that State is 1 percent higher than 
the prevalence of smoking by youth. The prevalence of youth marijuana 
usage is 1 percent higher than the prevalence of smoking cigarettes by 
youth. In addition to that, I might add that the prevalence of alcohol 
among the youth there is almost double what the usage is of smoking or 
the prevalence of marijuana usage.
  There are two objectives to regulating differently an industry that 
is currently the most regulated industry in America, and the sponsors 
of this bill have stated it numerous times: No. 1, to reduce youth 
usage; No. 2, to reduce disease and death. That is the public health 
component, and I agree totally with it. But I think what we have to 
look at is the experience of what is happening today and what the 
assessments are of the bill that is being considered that would grant 
FDA jurisdiction of this product.
  Today, the Centers for Disease Control says smoking is being reduced 
annually by 2 to 4 percent. The Congressional Budget Office has looked 
at the Kennedy bill and assessed that over the next 10 years the bill 
would reduce consumption by smokers at 2 percent. Let me say that 
again. Currently, doing nothing--not spending billions of dollars, not 
giving new authorities to the FDA--we reduce smoking by 2 to 4 percent 
per year. But if we put this bill into effect--at $787 million 
annually--and we give the FDA authority and jeopardize the gold 
standard of the agency which approves drugs and biologics, medical 
devices and food safety, we are actually not going to reduce smoking 
usage as much as if we did nothing.
  Why is that? This is very important because you will hear me talk 
over the next several days about reduced-risk products. Reduced-risk 
products are

[[Page 13660]]

products that deliver the nicotine needed for the addiction but reduce 
the risk of disease and death because it may be moved from smoking 
products to smokeless products. The truth is, under the Kennedy bill, 
we basically eliminate any product that wasn't marketed in February of 
2007--over 2 years. We have put a marker in the bill that says if there 
is a product in the marketplace that was not sold in February of 2007, 
it can't be sold any more. But if it is a product that was sold before 
February 2007, the FDA can't change it one bit. It is grandfathered in.
  So what is the CBO's assessment? What the Kennedy bill does is it 
grandfathers every cigarette that was on the market 2\1/2\ years ago 
and it doesn't allow the FDA to change it in any way. The only thing it 
does is to increase the warning label. I stated on the floor earlier 
today that if putting a warning label on it reduces the usage of 
cigarettes, I am willing to do it today. I will cosponsor it with 
anybody. The truth is, what this bill does is it locks in these 
products; therefore, it eliminates the choices adults have to try to 
get off of cigarettes and move to a reduced-risk product.
  My colleague pointed to the Supreme Court ruling on the tobacco 
industry, and he was partially correct. He just didn't tell the whole 
story. The whole story was the Court said, in 1998, when the FDA 
Modernization Act was written and passed and signed into law, Congress 
opened the entirety of the FDA Act and had the opportunity to give the 
FDA tobacco jurisdiction and chose at the time not to do it. That was 
11 years ago; 11 years ago, the FDA Modernization Act was passed. I was 
the lead sponsor of that bill, writing that bill in the House of 
Representatives. It took 2\1/2\ years to construct it. Every Member 
believed that the gold standard of the FDA was so important that we 
never lost focus on the fact that we had to maintain the integrity of 
the mission statement of the FDA. But no Member of Congress ever 
attempted to extend jurisdiction over tobacco to the FDA because they 
were concerned at the time that to do that would lessen that gold 
standard at the FDA.
  How can you tell an agency that has a regulatory responsibility to 
protect the safety and effectiveness of those products they regulate 
that we want you to do it on drugs and biologics and medical devices, 
but we don't want you to do it on this new product of tobacco? The risk 
and concerns and fears at the time were that this might diminish the 
effectiveness of the FDA.
  What has happened in 11 years? For 11 years, we have had a steady 
decrease in smokers. Now we are going to adopt a bill that potentially 
locks us into just the products in 2007. Why have we had a reduction? 
Because new reduced-risk products have come to the marketplace. We 
ought to continue to bring new reduced-risk products to the 
marketplace. Unfortunately, this bill does not do that. As a matter of 
fact, in section 910 of this bill, a so-called new tobacco product 
would not be marketed unless these three things were met: No. 1, it can 
show the marketing is appropriate for the protection of public health; 
No. 2, the increased likelihood that existing users of tobacco products 
will stop using such products; and No. 3, the likelihood that those not 
using such products will not start.
  Let's take the first requirement and put it into English. Before a 
company could market a new tobacco product, it would have to show that 
its use is appropriate for the protection of public health. Who in the 
world can show that the use of a tobacco product is appropriate for 
public health? It is impossible. In other words, this new tobacco 
product--be it a cigarette, raw tobacco, perhaps an alternative tobacco 
product--the companies would have to show that this new product is 
appropriate for the protection of public health. Somebody is going to 
have to explain to me how a cigarette can be appropriate for the 
protection of public health. It cannot be done. Therein lies why I 
grandfathered products before 2007.
  Even if by some miracle the inventer could show a product was 
appropriate for the protection of public health, this would only meet a 
third of the qualifications for a new product to come to market. It 
would also have to show that the product will make smokers or those 
using chewing tobacco less likely to smoke or chew and will prevent new 
people from starting. Again, somebody will have to show me how you can 
provide an example of a tobacco product currently for sale that would 
satisfy these standards: it discourages people from smoking, and it 
deters young people from starting. The bill's manager, the author of 
the bill, could not share with us exactly how you accomplish that.
  How does one go about assembling the data that is needed for new 
products when, in fact, you cannot actually ask consumers about a 
product that has yet to have an application approved. It is a catch-22. 
It sounds good.
  Let me highlight another problem with the bill as it relates to harm 
reduction. You heard me discuss harm-reduction products or products 
that are less harmful. These are not found in H.R. 1256.
  I am sure my colleagues are aware that the legislation would ban 
several products not sold in 2007. One of the products is a product 
called snus. We have seen the can. It is a Swedish smokeless tobacco, 
it is pasteurized, and it doesn't require one to spit. It is a tool 
that in Sweden has been used to get people off of cigarettes. Yes, it 
is still the use of tobacco products, but it meets the threshold of 
diminishing the risk of death and disease. Some suggest because there 
is a wintergreen and there is a spice, that this is attractive to kids. 
That is not the case. If that were the case, we would see wintergreen 
marijuana, because the usage or preference among youth is higher. The 
truth is, that has nothing to do with it. As I understand it, the 
product does not require the burning of tobacco. It does not require 
the actual smoking of tobacco. It generates no secondhand smoke. It 
will not affect the children near a user. According to the research 
done by a host of reputable scientists and public health organizations, 
use of this product instead of cigarettes can actually reduce death and 
disease associated with smoking. Why would you ban this product if the 
pretext of passing this bill is to reduce the risk of death and 
disease? You would not. But we eliminate the ability for this product 
to come to market in the future, and that which is at market today we 
ban from the market. In other words, it is clear that snus is far less 
dangerous than cigarettes, and it would be appropriate for the 
protection of public health because it eliminates secondhand smoke, it 
moves people away from smoking cigarettes. It would meet much of the 
standard of the bill, but the legislation still mandates that the 
manufacturer of snus demonstrate that snus will not encourage nonusers 
to start.
  Again, I am not sure how you communicate with the general public--
which is strictly prohibited in the bill until you have an approved 
application. If you need to communicate with the public in order to 
understand whether the product would cause nonusers to start for a 
reduced product approval application but you cannot communicate with 
consumers until you have an approved application, how would you ever 
get approval under section 911? The devil is in the details. In fact, 
you cannot communicate, but you have to communicate to be able to pass 
the third threshold of allowing the product to come to the marketplace.
  So it is disingenuous to suggest that this bill is for the purposes 
of reducing death and disease when, in fact, those things that are 
proven to reduce death and disease have strictly been forbidden. And in 
the case of those that are at market today, they would be pulled from 
the marketplace.
  It would be fair to say that what we are doing is freezing the 
marketplace for cigarettes and chewing tobacco. In 2007, I raised the 
issue with the HELP Committee because this same bill was brought up. 
The answer I was told then was that it may be difficult to bring a 
reduced-risk product to market. Bringing a reduced-exposure product to 
market is much simpler. So I said: Let's take a look at it. Maybe a 
cigarette

[[Page 13661]]

with less benzene or nitrosamines can work, so I read the reduced-
exposure portion of section 911.
  The first part of the reduced-exposure language reads that in the 
absence of conducting a 20- to 25-year study on tobacco products, if 
you can show a reduction in a harmful constituent in the product, you 
can classify it as reduced exposure. That seems reasonable.
  Then, in addition, those little pesky words pop up: ``additional 
findings.'' The reduced-exposure language states that you must show how 
the product would actually be used by consumers. Once again, catch-22--
you can't talk to consumers until you have an approved application. You 
can't show how the product is going to be used by consumers unless you 
can talk to consumers. Therefore, there is no such thing as reduced 
exposure.
  The bottom line? The bill that is being considered to give FDA 
jurisdiction brings no new harm reduction to tobacco users in America. 
It does to smokers exactly what the bill states, it locks in place all 
the cigarettes that were sold prior to February 1, 2007. Any of the 
reduced-risk product that has been introduced in over 2\1/2\ years 
automatically goes off the market, and the pathway through FDA for any 
new technology that might not burn tobacco or that might use tobacco in 
a different way that enables somebody to quit smoking and reduces death 
and disease--there is no pathway for it to happen because there is no 
way to communicate with the public until you have an application, and a 
part of the application process means you have to communicate with the 
public to meet the test that has been designed.
  You know what this is typical of what the American people think about 
Congress, that we say one thing and we do something else. That is 
exactly what we are doing here.
  I will offer a substitute with Senator Hagan tonight, I believe. That 
substitute will bring full regulatory authority to an entity to 
regulate this industry. I am not up here saying we cannot regulate it 
better than we do today. It is the most regulated product in America. 
It is regulated by more agencies than any product that is sold today. 
Can we do it more extensively? Sure. Can we have better warning labels? 
Absolutely. Can we be graphic in our description of what these products 
cost? Certainly. But the question is, Where is it more appropriate to 
do the regulation?
  I suggest that creating a new entity under the Secretary of Health 
and Human Services, where they have full authority to regulate this 
product, to limit its advertising, to eliminate its advertising, is a 
more appropriate place than to give it to the FDA, where their mission 
statement is to prove the safety and efficacy of all products they 
regulate, but they can never do it on tobacco products; to put it under 
the same guidance of the Secretary of Health and Human Services, who 
also oversees the FDA.
  What is so magical about putting this at the FDA? I will tell you, 
because they have attempted to do it for 10 years. It is because when 
you put it there, over time you will be able to outlaw this product--or 
you think.
  I go back to this chart from the CDC, the Centers for Disease 
Control, where in 48 out of 50 States the prevalence of youth marijuana 
usage is higher than the prevalence of youth smoking. Don't think just 
because you outlaw it you are going to reduce this country's youth 
usage. As a matter of fact, you may find out you have increased youth 
access.
  The way to do it is to take the money the manufacturers gave to the 
States and use the money to provide the education, to provide the 
cessation programs, to provide the reduced-use products that will allow 
individuals to get off cigarettes and go to something that really does 
reduce death and disease. But if you pass the Kennedy bill, that is not 
what we are doing. What we are doing is we are locking in forever the 
21 or 22 percent of the American people who are going to smoke. In 
fact, the Centers for Disease Control said that if we do nothing, by 
2016 we will reduce, from 21 or 22 percent, the smoking rate in America 
to 15.9 percent. We will actually reduce it over 6 percentage points by 
doing nothing.
  Yet we are getting ready, if we don't support the substitute, to lock 
in a measure that assures us indefinitely into the future that 21 or 22 
percent of the country will choose cigarettes as their means of tobacco 
usage. It means we will continue the rate of death and disease. We may 
look back and say: But we picked the strongest regulatory agency that 
we could to be in charge of the regulation of this product. Tell that 
to a patient waiting for a lifesaving drug and the reviewer who was 
reviewing the application was moved over to the tobacco section, 
because this new responsibility they had made them take senior 
reviewers and get them over because they had to regulate this product 
from day one. Tell the individual in America who is harmed because of a 
medical device that should have never been approved but got through the 
system because the gold standard of safety and efficacy was not adhered 
to at FDA because they were asked to turn to tobacco and not prove that 
public health was important on this product and, therefore, new 
reviewers looked at it and said: We don't have to be 100 percent 
accurate on devices. Or the biologic companies, when they see a delay 
in the approval of an application, that actually invest billions of 
dollars to bring a lifesaving biologic to the marketplace that ends a 
terminal or chronic illness, what if this product doesn't come because 
of what we do?
  These are questions we should be asking ourselves. The American 
people deserve us to fully vet this. But in 2 days of markup on this 
bill, when questions were asked, the answers were ignored. They were 
more interested in the speed with which we pass this than the accuracy 
of the policies that we put in place. I have tried to keep the debate 
since yesterday on facts. I have tried, when I made a claim, to produce 
the numbers. The CDC is typically a credible source. The Congressional 
Budget Office is usually a credible source. The University of Michigan, 
many have come on the floor and used it as a credible source. This is 
not industry hype. These are institutions that we come to the floor and 
use to make our claims every day. What all of them say is: Don't pass 
this bill. But they don't say not to do something.
  Tonight Members will have an opportunity to vote for a substitute, a 
substitute that gives the same level of authority, that does away with 
advertising in total, that puts the same descriptive labels on so that 
people cannot only read it in plain English but see it in detail. It 
just doesn't put it at the FDA. Why? Because I spent 2\1/2\ years of my 
life trying to modernize the Food and Drug Administration through a 
piece of legislation we passed in 1998. Why did it take so long? 
Because the FDA regulates 25 cents of every dollar of our economy. When 
the American people go to bed at night, they know if they take a drug 
that was prescribed by a doctor and filled by a pharmacist, it will not 
hurt them. More importantly, it is probably going to help them. It will 
make them better. Or when they go to the hospital or the doctor's 
office and they use a device, they know it has been reviewed and it is 
safe. They know that when they go to the grocery store, there is an 
agency called the Food and Drug Administration that is responsible for 
food safety. What they buy and what they eat is actually not going to 
kill them.
  Yet we have seen instances over the last 3 years where spinach is 
sneaked through and peanut butter is sneaked through. And as we become 
a more global economy, our concerns about where it is made and what 
they put on it mean that our review of food safety has to be as 
stringent as everything else. The FDA is struggling today. The biggest 
mistake we could make is to give them another product and say, regulate 
this, and don't regulate it based upon the same standards you do 
everything else. But that is what we are doing.
  If you want to reduce youth access, youth usage, if you want to 
reduce death and disease, vote for the substitute tonight. Reject the 
base bill. If we do that, we will have successfully done our job. If, 
in fact, we fall prey to

[[Page 13662]]

jeopardizing the gold standard of the FDA, mark my words, this body 
will be back at some point fixing a mistake they made.
  My only hope today is that there won't be an American who loses their 
life by the actions we have taken. I am willing to concede that if the 
FDA gets the jurisdiction, the authority to regulate this industry, we 
will miss the opportunity to take a lot of Americans off of cigarettes 
and move them to other products, other products that are better for 
their health and not as likely to kill them. The statistics say that 
that will happen. Ask yourself, knowing that, is it worth risking that 
you might change the gold standard at the FDA, that you might lower the 
bar for drug or device approval, that we might actually slip on food 
safety. I am not sure the risk is worth it.
  This is about our kids. Vote for the substitute. This is about the 
status quo. This is about letting an outside group have a win that has 
fought this for 10 years because they are in some battle with an 
industry.
  Is it worth it for us to give them a win versus the American people? 
I don't think so. I encourage my colleagues to support the substitute 
tonight. Reject the base bill.
  I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, pending before the Senate now is 
consideration of a bill that would dramatically change the way we 
regulate tobacco and tobacco products in America. This is an issue 
which has meant a lot to me during the course of my time in the House 
and in the Senate.
  Many years ago--over 20 years ago--I offered an amendment which was 
the first successful attempt to regulate tobacco. I should say, earlier 
efforts at warning labels go back many years. But this was the first 
successful attempt to regulate the use of tobacco product.
  What we did 20 years ago was suggest that the old days and the old 
ways of allowing people to smoke on airplanes had to change. Some of us 
are old enough to remember those days when you would make a reservation 
to fly on an airplane and you would tell them whether you wanted to sit 
in the smoking on nonsmoking section--as if there was any difference. 
For the most part, if you happen to be seated, at least, in the last 
seat of the nonsmoking section, you might as well be smack dab in the 
middle of the smoking section.
  So we decided to eliminate smoking on airplanes. That was an 
amendment I offered in the House of Representatives over 20 years ago. 
It had the opposition of the tobacco lobby and the opposition of all 
the political leadership in the House of Representatives--Democrats and 
Republicans. They all opposed it for a variety of different reasons. 
But we called it anyway, and the amendment was successful. What it 
taught me was that Members of Congress are members of the largest 
frequent flyer club in America. We spend more time on airplanes than 
most. If there is something we want to change, it affects us 
personally. And this did.
  So Democrats and Republicans came forward, and we started a trend 
which I think has been very beneficial for this country because once I 
passed that amendment, Senator Frank Lautenberg of New Jersey took it 
up here in the Senate. He successfully passed it. We worked together to 
eventually eliminate smoking on airplanes, and the American people 
noticed. They liked it. They reached an obvious and rational 
conclusion: If secondhand smoke is dangerous in an airplane, then it is 
also dangerous in a train, in a bus, in an office, in a school, in a 
hospital, in a restaurant. Of course, the dominoes just kept falling. 
As they fell, there were more and more restrictions on smoking in 
public-type places.
  So there were many things still to be done, and we started thinking 
about the obvious need for change. We knew we were up against one of 
the most powerful lobbies on Capitol Hill with the tobacco lobby. Not 
only were they very wealthy, with a lot of revenue from the sale of 
their product, but they also had ingratiated themselves to many Members 
of Congress of both parties. They did it in obvious ways: in 
contributing to campaigns. They were a major factor in some districts 
where they either manufactured their product or tobacco was grown. But 
they also befriended many Members of Congress, providing charitable 
contributions to hometown charities for Members of the House and 
Senate. It went a long way to build up good will and to convince 
Members of Congress to oppose any other changes when it came to tobacco 
regulation.
  Well, there were things we knew needed to be done. You see, each day 
in America, 3,000 to 4,000 children start smoking for the first time--
3,000 to 4,000 a day. During the course of that decisionmaking, about a 
third or a fourth of them will decide to stick with it. They will stick 
with it long enough that the nicotine chemical in the cigarette creates 
a craving and satisfies an addiction which is tough to break.
  Oh, I have seen people walk away from a lifetime of smoking in a few 
days. But I have also seen people struggling for their entire lives 
trying to break that smoking habit--patches notwithstanding and 
hypnosis and all those things. For a lot of people, it is a very hard 
thing to do.
  The tobacco companies know if they are going to have 400,000 of their 
customers die each year, they have to replace them with children. If 
people wait until they are 18 years old or 21 years old, they are 
likely to be smart enough not to start smoking, but if you are 12 or 
13, it is an adventure. It is something that is forbidden, and it shows 
that you are just like a grownup, and kids try it.
  The tobacco companies know that. Although they deny it, they market 
to kids. They sell their products in a way that appeals to children, 
hoping that teenagers and even younger will start taking up this 
tobacco habit because it is not only cool, it tastes good. The 
advertising is appealing. Tobacco companies spend over $13 billion a 
year promoting their products and many of those marketing efforts are 
directed right at our kids.
  Mr. BROWN. Mr. President, would the assistant majority leader yield 
for a moment?
  Mr. DURBIN. I would be happy to.
  Mr. BROWN. Mr. President, I wanted to reemphasize the words of the 
assistant majority leader for a moment because I was walking through 
and heard his comments about tobacco companies' efforts to get children 
addicted.
  As the assistant majority leader said, more than 1,000 Americans a 
day--400,000 a year--die from tobacco-related illnesses. I remember 15 
years ago sitting in the House Energy and Commerce Health Subcommittee 
listening to tobacco executives talk to us about a whole host of things 
that they weren't exactly truthful about. But from the point Senator 
Durbin makes that 400,000 Americans die a year from tobacco-related 
illnesses, it is clear that what the tobacco companies know they have 
to do is they have to replenish their customers. They have to find more 
than 1,000 new customers a day. They don't go to our age group. They do 
not go to 50-year-olds and 60-year-olds or 40-year-olds or even 30-
year-olds; they go to the people the age of the pages sitting in front 
of us. They go to teenagers. Those are the people whom they know they 
must addict to replenish their customer base, if you will. That is why 
this legislation is so important and why the efforts of the assistant 
majority leader over the last 20 years, as a Member of the House and 
Senate, are so important, the victories he has had such as stopping 
smoking on airplanes and all of those other places. This legislation is 
extraordinarily important.
  I yield back to the assistant majority leader.
  Mr. DURBIN. Mr. President, I thank my colleague from Ohio for joining 
in. He certainly recalls those infamous

[[Page 13663]]

hearings in the House of Representatives when the tobacco company 
executives stood up and ceremoniously testified under oath that 
nicotine was not addictive. That, I think, was the beginning of the end 
of the tobacco lobby in Washington, DC. Everyone knew that they were, 
at best, misleading and, at worst, just plain lying to the American 
people. When it came to their advertising, they denied for years that 
kids were their targets. They said it hadn't been the case.
  Then one can take a look at some of the tobacco companies' internal 
documents that came out during the course of lawsuits, and let me tell 
my colleagues some of the things they found.
  The Lorillard Tobacco Company was quoted as saying: ``The base of our 
business is the high school student.''
  Philip Morris, in their internal documents, said: ``Today's teenager 
is tomorrow's potential regular customer.''
  U.S. Tobacco: ``Cherry Skoal is for somebody who likes the taste of 
candy, if you know what I'm saying.'' I think I know what they are 
saying.
  R.J. Reynolds, in an internal document, said:

       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.

  So make no mistake about it. We know. We all know. Tobacco companies 
have directed their ad campaigns and their recruitment at our children. 
I have said it before; it bears repeating. I have never met a parent 
who has said to me, I got the greatest news last night. My daughter 
came home and announced she had started smoking.
  I have never heard that. I don't think I ever will. Most parents know 
that is a bad decision and one that can be fatal.
  Cigarette companies claim they have finally stopped intentionally 
marketing to kids and targeting youth in their research and in their 
promotions, but they continue to advertise cigarettes in ways that 
reach these populations. They continue to make products that appeal to 
kids.
  For example, take a look at this one on this chart. This is a product 
called Liquid Zoo. The packaging is powerful, and the cigarettes come 
in fun flavors: Coconut cigarettes. How about that one? Vanilla 
cigarettes. Strawberry cigarettes. Liquid Zoo offers these. It is 
almost as if you are going into an ice cream store, which most kids 
like to do, because you are offering the flavors they will find in the 
ice cream.
  Look at the Sweet Dreams and Chocolate Dreams cigarettes over here; 
again, a variety of kid-friendly flavors. This time, the cigarettes 
themselves, if you will notice down here, are pastel colors to make 
them even more appealing to children. Not only are these cigarettes 
designed to appeal to kids, but the tobacco companies buy the ads in 
magazines that teenagers read and try to draw them to their brands 
through advertising.
  Here is a familiar one: Camel. Look at this ad for Camel cigarettes 
that ran in Rolling Stone Magazine, Cosmopolitan, and Vogue in 2004 and 
2005. You can see from this ad it is appealing. These packages are 
designed in ways to appeal to young people, and the advertising as 
well. It took 39 State attorneys general to get on the tobacco 
companies' case before they finally agreed to stop marketing these 
cigarettes.
  So what is next? Well, until we pass this legislation, it is 
inevitable that these tobacco companies will dream up another way to 
market their product to the kids.
  This bill before us will make a difference. For the first time we are 
going to get serious about this. Tobacco products are one of the few, 
and maybe the only, products in America that go unregulated. You can't 
sell food or medicine in America without the Food and Drug 
Administration, or even the U.S. Department of Agriculture, taking a 
look at it. I will concede they don't inspect every package of food you 
will find in the store, but they have an overall responsibility to make 
sure that that product is safe for Americans to consume. But tobacco is 
an exception. Tobacco is not regulated. Tobacco is not inspected. They 
somehow manage to wiggle their way somewhere between food and drugs, 
saying, Oh, we are not a food product, and we are definitely not a drug 
product you would find in a pharmacy. But we know better. Even though 
it is an odd way to deliver a chemical--a drug--tobacco delivers 
nicotine and a lot of other chemicals as well. So even though they were 
successful in Congress for decades exempting themselves from coverage 
and inspection by the Food and Drug Administration, this bill is going 
to change that.
  Senator Ted Kennedy is recovering from cancer, a brain tumor he has 
been fighting for many months now, and we all wish him the very best. 
He was the one who pushed this bill. He is the one who believed that 
the Food and Drug Administration should regulate tobacco products. I am 
sorry he can't be on the floor, because I would like to give him a big 
shout-out for the years he put into this effort. But we are here, and 
we have a chance to pass this legislation.
  Here is what the bill does. It prohibits the colorful and alluring 
images in advertising that these tobacco companies shamelessly use to 
appeal to children. This bill also limits ads to only black-and-white 
text in newspapers and magazines with significant young readership, and 
in stores that are accessible to children. It makes it harder for them 
to reach out to these kids and to dazzle them with their artwork and 
all of their images. It bans outdoor advertising near schools and 
playgrounds so kids won't be standing, waiting to go into school, 
looking up at a billboard suggesting that after school, you better get 
a pack of cigarettes. It ends incentives to buy cigarettes by 
prohibiting free giveaways with the purchase of tobacco products, and 
it finally puts a stop to tobacco sponsorship of sports and 
entertainment events.
  I wish to tell my colleagues that most of us know the warnings that 
have been on cigarette packages for more than 40 years have outlived 
their usefulness. Does anybody notice them anymore? They put them on 
the sides of packages. They are really routine. Folks don't pay 
attention.
  Well, we are going to change that. We are going to have much more 
effective warning labels on these products. This bill requires large, 
clearly visible warning labels at least covering half of the front and 
half of the back of the package of cigarettes. These labels will have 
large text and graphics displaying the dangers of smoking. Some people 
say, Why waste your time warning people? They know it already. Maybe 
they do. Maybe they need to be reminded. But we have an obligation as a 
government, as a people, to do everything we can to discourage this 
deadly addiction.
  We are also going to require much larger warning labels in print ads 
for products. Some of these pictures I have shown my colleagues, you 
almost need a magnifying glass to find the Surgeon General's warning, 
which sadly has gone ignored too often. We are going to improve that by 
requiring that warning messages take up at least 20 percent of any 
advertisement they have in a magazine or on a billboard.
  Study after study shows that advertising can influence young buyers. 
We certainly want to influence them to make a healthy decision when it 
comes to tobacco. This bill makes critical changes to limit kids' 
exposure to tobacco ads, and we know that is going to prevent kids from 
trying cigarettes and getting addicted.
  One of the things we do in this bill as well is finally tell those 
who buy tobacco products what they are buying. If you believe a 
cigarette is just tobacco leaves ground up and put into a paper 
cylinder, you have missed the point. Those cigarettes are loaded with 
chemicals, not just the obvious naturally occurring nicotine but added 
nicotine to increase the addiction of smokers, as well as other 
chemicals which they think will make the taste of tobacco more 
appealing and will in some ways help the new smoker get through that 
first two or three cigarettes where they might be coughing. They are 
trying to make it a smooth

[[Page 13664]]

transition from ordinary breathing to breathing with tobacco smoke, so 
they load up the cigarettes with these chemicals.
  If you go in and buy a box of macaroni at the store and take a look 
at the side of the package, you will see the contents. What is that 
macaroni made of? It will have 6 or 8 or 10 different things and a 
nutrition labeling box. If you pick up one of these packs of cigarettes 
and look for the ingredients, what is included in that cigarette, you 
won't find it. Why the exception? Because the tobacco lobby made sure 
there was an exception. They don't want you to know what is in that 
little paper cylinder of tobacco. Now that is going to change. This 
bill before us is going to give the Food and Drug Administration the 
authority to require disclosure of ingredients so that consumers know 
what they are getting into, and, of course, in the process, give us 
information we need to find out what kind of dangerous, toxic chemicals 
are being added to cigarettes. Those listening may say, Well, this 
Senator is getting carried away calling them toxic chemicals. In fact, 
they are. They are toxic, and they are carcinogenic, they are 
dangerous, and they make that smoking experience even more hazardous 
for the people who are involved in it. Don't we owe that warning to 
consumers across America? Don't we owe it to our kids? Shouldn't we try 
to protect the American people from the dangers that are associated 
with the No. 1 preventable cause of death in America today, tobacco-
related illness?
  This bill has been a long time coming. Some of us have been battling 
this tobacco industry for two decades, and more. Now we have a chance 
to do something. We had a press conference earlier with Senator Chris 
Dodd of Connecticut, and he has kind of picked up this standard and is 
carrying it for Senator Kennedy, who is the inspiration for most of us 
when it comes to this issue. Senator Dodd just completed the Credit 
Card Reform Act a couple of weeks ago, a measure we have been trying to 
bring to the Senate floor for 25 years. He successfully guided it 
through. Here he is back 2 weeks later with an issue that has been 
waiting in the wings for at least 10 or 20 years. I salute Senator Dodd 
for his extraordinary leadership on these two historic issues.
  Senator Lautenberg, my colleague when it came to banning smoking on 
airplanes, was at the press conference. Senator Jack Reed of Rhode 
Island, who has always been stalwart when it comes to this issue, was 
there. I said at the press conference: I wonder if 20 years from now, a 
child or grandchild of one of these Senators will come up and say 
Granddad, explain to me. You mean you actually sold these cigarettes 
with warning labels people couldn't read and they didn't have to 
disclose their ingredients, and they could sell them to kids and they 
could advertise to kids? You mean that actually happened? Well, it is 
happening right now, and unless we pass this bill, it will continue to 
happen. Unless we pass this bill, 1,000 of our children today and every 
single day will start smoking and start an addiction which will lead to 
the deaths of at least one out of three. That is the reality. We can 
face our responsibility here, pass this bill on a bipartisan basis and 
say to America, it took a long time, but this Congress of the United 
States of America has finally put the public health of the people we 
represent ahead of the tobacco lobby.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOND. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.
  Mr. BOND. Mr. President, I ask unanimous consent that I may be 
permitted to proceed as in morning business for up to 12 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              North Korea

  Mr. BOND. Mr. President, East Asia is a very interesting and 
challenging area. There are tremendous opportunities. We have great 
friends there. The potential for trade and better relations continues 
to grow in many ways, and there are many good things that are happening 
that we need to pursue in that part of the world, but they are also 
coupled with some immense challenges. There are some real problems 
there. Unfortunately, we were reminded of one of those key challenges 
most recently; that is, North Korea.
  One of the world's most secretive societies, North Korea has 
increased its isolation from the rest of the world by continuing to 
pursue its nuclear ambitions, along with its missile capability 
potentially to deliver those weapons.
  As one of the countries still under Communist rule, Supreme Leader 
Kim Jong-il heads a rigid, state-controlled system where no dissent is 
tolerated. Its destroyed economy has suffered from natural disasters, 
poor planning, and a failure to keep up with its burgeoning neighbors--
China and South Korea.
  North Korea, officially named the ``Democratic People's Republic of 
Korea''--and that in itself is an oxymoron--maintains one of the 
world's largest armies, but the standards of training, the discipline, 
and the equipment are reported to be very poor.
  The Korean war ended with the armistice of 1953. But when one visits 
the demilitarized zone, as I did in March of 2006, the tension of the 
zone feels as if the war has done anything but end. The north has 
recently fueled the tension by launching six short-range missiles, 
renouncing the 1953 armistice, and threatening continued attacks on 
South Korea.
  After 15 years of negotiations, bilateral and multilateral talks, and 
a state of affairs worse than when we started, it is time for tougher 
action, barring all-out war. We hear people say: We want to talk with 
them, we want to negotiate with them, we need to pass a resolution. The 
bottom line, as we say in the old country music song: We need a little 
less talk and a lot more action. Talk has not gotten the job done. We 
need action.
  A key to the successful resolution of this difficult situation is our 
good friend China. China provides as much as 90 percent of the north's 
energy, 40 percent of its food. Like Russia, it has used its Security 
Council veto, regrettably, against attempts to isolate Pyongyang. 
Without its support, its poor neighbor would struggle to survive. And 
it appears that the North Koreans may be exhausting Beijing's patience. 
Recent nuclear tests, last month's rocket launch, increasing threats, 
and the suspected restarting of the Yongbyon nuclear plant have 
reignited debate about how best to deal with this very troublesome 
neighbor. Beijing was swift to slap down the recent nuclear test. I 
hope that was the final straw for China.
  We need China to play a constructive leadership role and support the 
Security Council resolution in toughening existing sanctions and 
implementing them. When you look at the sanctions that have been 
applied to Iran, sanctions should be applied to North Korea that are at 
least as tough if not tougher than those on Iran. After all, it is 
North Korea that has actually tested and detonated a nuclear weapon and 
fired missiles over Japan and throughout the region. And the North 
Koreans' continued sabre-rattling could lead to proliferation in the 
region and alter balances of power. Our friends there may not be 
willing to see a nuclear North Korea unchecked and unbridled, posing 
threats to them. We do not need to put our allies and friends in a 
position where they believe they must have a nuclear counterweight.
  After 15 years of happy-talk and discouraging attempts during the 
last months of the Bush administration to turn the six-party talks into 
two-party talks, the time for tougher action is way overdue. My 
personal opinion was the two-party negotiations last fall were a tragic 
mistake. Obviously, they did not stop what has happened since.
  North Korea poses security and humanitarian challenges to the world 
and

[[Page 13665]]

particularly to China's core interests. China's ability to contain 
North Korea is critical in demonstrating it will provide leadership on 
the world stage, but it is certainly not fair to ask China to handle it 
all. This is the world's problem, and I believe we can work together 
with China and our critical allies in Japan and South Korea to defuse 
this situation.
  South Korea's President Lee Myung-bak, unlike his predecessor, has 
embraced the United States instead of North Korea. He has embraced 
working constructively within the six-party framework and with the 
United States, and we certainly ought not to be getting into bilateral 
negotiations. The six-party talks at the minimum are absolutely 
essential.
  South Korea is one of our most important security partners in the 
region. I was proud last year to support the United States-Korea 
Defense Cooperation Enhancement Act to strengthen this important 
alliance. We must take the next step and approve the United States-
Korea Free Trade Agreement to further strengthen our economic and 
strategic partnership. It is in our interest, their interest, and the 
interest of peace and prosperity in the region.
  Japan is steadily increasing the role it is playing in international 
security affairs. We must continue to support these initiatives. Japan 
and the United States work very closely together on the AEGIS missile 
defense system, and robust support for ballistic missile defense is now 
more important than ever.
  We have seen that these countries have the ability to shoot off 
missiles. We used to think we have mutually assured destruction. We 
feared the only place that would be sending missiles at us might be the 
former Soviet Union. That ain't so. North Korea has shown its ability, 
and others are working on it.
  But we have made progress. According to the head of the Missile 
Defense Agency, LTG Patrick O'Reilly, the United States has fine-tuned 
its ability to shoot down long-range missiles launched by North Korea, 
based on a trio of tests mimicking such an attack. At a recent 
conference at the National Defense University, he went on to say:

       We have made adjustments to give ourselves even higher 
     confidence, even though we intercepted three out of three 
     times in that scenario.

  General O'Reilly, in response to a question, said the U.S. ability to 
hit a specific spot on a target missile had improved ``dramatically'' 
during the tests. ``So, do I think it is likely that you're going to 
intercept if somebody launches out there?'' He said, ``Yes, I do. And 
the basis is those three tests and what we know about the threat. . . 
.''
  I can tell you that President Obama was fully engaged, working with 
our National Security Council, to be able to use the resources we have 
at our disposal should a North Korean missile launch have threatened 
the United States or other of our close allies or our interests. I 
congratulate him on that. I applaud him for having that in place and 
being willing to use what was necessary. But unfortunately--and I don't 
understand why, with the threats we have--President Obama's defense 
budget reduced funding for more ground-based interceptors in Alaska and 
California. It scaled back funding for the airborne laser interceptor 
and canceled further research and development for multiple kill 
vehicles--all of this at a time when North Korea is increasing its 
sabre-rattling and Iran is showing no signs of reducing its program and 
continues to issue threats to Israel and its neighbors in the Middle 
East.
  When I visited Israel in December, I went over to talk about 
intelligence. They only wanted to talk about one thing. They needed 
missile defense--short-range, medium-range, long-range--because they 
are looking at weapons coming in, missiles coming into them: short 
range, potentially ultimately long range. To protect our allies and 
Israel, we are working with them on the Arrow and certain other 
programs that I am proud to support that give them that defense, but 
they are in a position where they are subject to attack, not only from 
long-range and medium-range missiles but very short-range missiles, and 
we have to provide them that kind of capability.
  I hope my colleagues will reconsider the proposed cuts to ballistic 
missile defense. It is a threat that is here, it is now, it is 
threatening our allies and, yes, possibly, even the United States.
  As far as North Korea goes, in addition, I have recently agreed to 
cosponsor Senator Brownback's North Korea Sanctions Act. The 
legislation would require the Secretary of State to relist North Korea 
as a state sponsor of terrorism. This requirement could be waived by 
Presidential certification as provided for in the bill. But we were 
able to hurt North Korea significantly when we imposed sanctions on the 
bank, the Bank of Asia, which was handling their transfer of funds. But 
in a very unfortunate, misguided effort to try to win the friendship of 
North Korea, we took off those sanctions last year. That was a mistake.
  This is a challenging area. It is one in which I hope others will pay 
great attention, and I look forward, when the budgets come before us, 
to talking about the need for ballistic missile defense. We are seeing 
that threat. It is being visited on a daily basis on our allies in 
Israel. It is no time to back away from the tremendous technology we 
have that could protect us, our allies, and our interests around the 
world.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burris). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BURR. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURR. Mr. President, while the Senate is in consideration of a 
bill to regulate tobacco, I think it is extremely important that 
Members of the body understand that tobacco is not an unregulated 
industry today. Let me preface this by saying that I am not proposing 
that we do not do something additionally in the Senate. I think we can 
regulate more effectively. But what I have put up--I know it is hard 
for the Presiding Officer to see--is the current regulatory structure 
of the tobacco industry in America. It shows every Federal agency that 
currently has a regulatory jurisdiction over tobacco: Department of 
Transportation, Department of Treasury, Department of Commerce, 
Department of Justice, the Executive Office of the President, 
Department of Health and Human Services, Department of Education, 
Department of Labor, General Services Administration--the GSA--the 
Department of Veterans Affairs, Federal Trade Commission, Department of 
Agriculture, the Environmental Protection Agency, the U.S. Postal 
Service, and the Department of Defense. These are all Federal agencies 
that currently, today, regulate the product of tobacco. For any person 
to come to the floor of the Senate and claim that there is not 
sufficient regulation of this industry right now is ludicrous. As a 
matter of fact, this is the most regulated product sold in the United 
States of America currently.
  The proposal Senator Kennedy has introduced is a proposal that 
concentrates all the regulation of tobacco in the Food and Drug 
Administration, an agency that was created for the sole purpose, by its 
mission statement, of approving the safety and efficacy of drugs, 
biologics, medical devices, cosmetics, products that emit radiation, 
and responsibility for food safety.
  We are going to shift from all these Federal agencies and all the 
flowcharts underneath them of different aspects of regulation currently 
for the tobacco industry, and we will concentrate this in the Food and 
Drug Administration. It probably makes a lot of sense from the 
standpoint of consolidation, but what I want my colleagues to 
understand is that this truly today is the most regulated product sold 
in America, when we look at the expanse of the regulatory framework 
that exists today.
  The authors of the bill have suggested we have to allow the FDA to 
have jurisdiction because there should be two objectives. One is to 
reduce death and disease, and the other is to

[[Page 13666]]

reduce youth usage of tobacco products. These are two goals I embrace 
wholeheartedly.
  Let me share this chart. It starts with a product I consider to be 
the base: 100 percent of these products presents a health risk. What is 
the product? Nonfiltered cigarettes. I know the President of the Senate 
probably remembers when all his friends smoked nonfiltered cigarettes. 
The truth is, we probably still have some friends who do it today. The 
continuum of risk goes down in the next category, filtered cigarettes. 
The industry introduced filtered cigarettes at some point, probably 
before I was born. The risk is only reduced by 10 percent. It meant it 
was 10 percent less likely to have a risk involved in it. But still, 
clearly, 90 percent of users having the risk is pretty unacceptable.
  Then we go to a category that never hit the market, except for 
experimentally through market testing. That was tobacco-heated 
cigarettes, a product that didn't actually burn tobacco, but it had a 
ceramic disk in the front that glowed and got hot. As that hot air was 
pulled through the tobacco, the nicotine was extracted and delivered, 
but the product never burned. It never created secondhand smoke. In 
fact, it never had any smoke that actually was emitted afterward. 
Whatever was emitted was a vapor, and it dissipated.
  Then we have a new category called electronic cigarettes, a 
fascinating product, rather expensive. It actually runs off a battery. 
It extracts the nicotine and delivers it into the system in a totally 
different way than the tobacco-heated cigarette. But, clearly, we see 
that in two new iterations, we have gone from 100 percent risk to 90 
percent risk to 45 percent risk and now, with this new electronic 
cigarette, to a risk of less than 20 percent. One would say, moving 
from here to here from the standpoint of risk is an advantageous 
opportunity for people who use nonfiltered cigarettes. If we could get 
them over here, we have reduced the risk of death, and we have reduced 
the risk of disease.
  Let me move out to the next category, which is smokeless tobacco, 
U.S. smokeless tobacco. I need to draw the distinction because globally 
there are new types of smokeless tobacco. But U.S. smokeless tobacco 
all of a sudden reduces the risk to 10 percent. We have gone from 100 
percent to 10 percent. We have reduced by 90 percent the risk presented 
by the use of tobacco products. Now we move to the next category, which 
is probably hard to see. I would equate this to about 2 or 3 percent 
risk. This is Swedish smokeless snus, a pasteurized product. It is 
actually spitless. It can be swallowed because of the pasteurization. 
But, again, products that deliver the nicotine need to allow somebody 
to go from a nonfiltered product all the way over here to a U.S. 
smokeless or to a Swedish smokeless. We have now gone from 100 percent 
risk to 2 or 3 percent risk.
  Now a new category, not even on the market, a category already 
targeted as a product that should not be: dissolvable tobacco, a 
product that dissolves in the mouth. That delivers what this person 
needs over here from the standpoint of being addicted to nicotine but 
puts the category of risk somewhere down in the 1 percent category. As 
innovation has taken place, we have allowed the opportunity for people 
to come off products that had 100 percent risk down to products that 
reduce the risk by 99 percent. Then we have therapeutics, such as gum 
and patches and lozenges, that have minimal risk and pharmaceutical 
products that allow people to actually either reduce or quit the habit 
of tobacco usage.
  When we look at the goal of a tobacco bill--and the authors have said 
the goal is to reduce disease, death, and youth usage--I ask the 
Presiding Officer, if you reduce from 100 percent the risk to 10 
percent for U.S. smokeless or 2 percent for Swedish smokeless, does 
that embrace the spirit or intent of what the author of the bill is 
trying to do? I say yes. But what I have to share with my colleagues is 
this category that is at 2 percent, under the current bill being 
considered, would be banned. Why? Because of an arbitrary date that 
they have chosen to say if the product wasn't sold in the United States 
before February of 2002, then this product is not allowed to stay on 
the marketplace.
  My point is, if the authors say the objective of the legislation is 
to reduce the risk, as you reduce the risk, you reduce the likelihood 
of disease, the severity of death, isn't this the category we would 
like more smokers to move to? I think the answer is obviously yes. We 
would like to move people away. We would like to reduce the health 
cost. We would like to reduce death. If we can do that by bringing this 
new age of products to the marketplace, this is beneficial to 
everybody. It makes a lot of sense.
  That is not what the legislation does. I have spent this day coming 
to the floor trying to emphasize with my colleagues that what the 
legislation does is grandfathers two categories, nonfiltered cigarettes 
and filtered cigarettes. It says these are the only products that will 
be allowed to stay on the market. It means the 20 percent of Americans 
who currently have chosen to smoke, hopefully adults, are not locked 
into these categories from the standpoint of choice. Yet in Sweden, 
they created this new product, and they have had a massive movement of 
people from these two categories to this category. This is not 
something I have made up. The data is there to show.
  The authors of the bill would suggest we allow this product to be 
created, but there are three thresholds they have to meet. The three 
thresholds they have set are absurd. Let me focus on the third 
threshold. They suggest that the manufacturer would have to prove this 
product wouldn't be used by a nontobacco user. For you to accumulate 
data to know whether a nontobacco user would be interested in using 
this product, you would have to go out and present the product to them 
and explain it before they could comment on whether they would be 
inclined to want to try it. But the bill forbids any communication 
about a product that hasn't been approved. So I ask, how do we get a 
product approved if the threshold is to tell them what the likelihood 
is of people who haven't used tobacco products using it, if you can't 
talk to people who haven't used tobacco products about using the 
product because the product hasn't been approved?
  In Washington we call this a quite crafty way of making a claim but 
reversing in the bill the ability to use it. In essence, the bill that 
is under consideration creates these two categories indefinitely and 
says: It is OK if we have 20 percent of the American people who choose 
to use those products. Hopefully, over time, more adults won't choose 
to use them. We are willing to accept that 20 percent are using them, 
and they are going to die or have severe disease.
  If that is the case, then how can you come out and claim that this is 
a public health bill, that we are going to pass this bill because of 
the responsibilities we have to public health?
  Since 1998, smoking rates in America have dropped from approximately 
23.5 percent to 19.5 percent. The Centers for Disease Control and 
Prevention, the agency that many come to the floor and quote with great 
frequency because of their expertise, says if the Senate does nothing, 
if we don't pass a piece of legislation, by 2016, the rate of smokers 
in America will drop to 15.7 percent. But if we look at the 
Congressional Budget Office that has had an opportunity to see the 
Kennedy bill, they estimate the Kennedy bill will reduce smoking 2 
percent over the next 10 years. Meaning in 2019, the rate will fall 
from 19.5 percent to 17.5 percent. You get where I am going? By giving 
the FDA regulatory authority, we are going to increase by over 2.5 
percent the number of smokers in the country than if we did nothing. 
That doesn't make much sense, does it?
  Let me explain. When we lock in these two categories and we eliminate 
the ability for somebody who is a smoker to find one of these products 
to move to, we have now locked in the category of smokers. When we 
explain it to somebody, it makes tremendous sense. The question is, Why 
would we do this? I expect Sweden to be up here arguing that this is 
the right strategy.

[[Page 13667]]

Yet Sweden is the one that is the most progressive. Why? Because they 
are truly focused on the health of Swedes. The fact that we claim that 
we are doing this because of death and disease isn't true. We are doing 
this because 10 years ago somebody wanted to do something punitive to 
an industry. As a matter of fact, the date that is set in the Kennedy 
bill is February 2007, meaning if the product wasn't sold before 2007, 
it is banned from the marketplace. Why did they use February 2007? 
Because they wouldn't even change the bill they passed out of committee 
in 2007 to reflect 2009, which is the current date. There was so little 
attention paid to this piece of legislation that they didn't even go 
through to purge the date and change it. They printed the same page of 
the bill they had last time.
  I have said several times throughout, the only thing I ask Members to 
do before they vote on this bill is to read it. I don't think that is 
too much to ask. If they read the bill, they will never vote for it. If 
they read the bill, they will understand that, one, this makes a lot of 
sense. But, two, remember, when I went over the current regulatory 
structure, I didn't mention the Food and Drug Administration. I did 
mention the Department of Health and Human Services. As we go down this 
flowchart of things under the HHS, there is no FDA. We are choosing an 
agency of the Federal Government that has never regulated tobacco. How 
can that possibly make sense? Maybe if you claimed you were going to 
put it at the Centers for Disease Control, they actually have some 
responsibility within the framework currently of regulating tobacco. 
But not the FDA. We may have taken the only piece of the Federal 
Government that doesn't currently have any jurisdictional 
responsibilities to regulate tobacco, and we are giving them 100 
percent of the requirement to regulate tobacco.
  The truth is, we don't need the FDA to do it. We can do it by 
creating a new entity under the Secretary of HHS, the same person who 
is over the FDA today, and we would suggest doing that by creating a 
new center. That new center would be responsible to regulate in total 
tobacco products throughout the industry.
  It is a Harm Reduction Center. Think about that: Harm Reduction 
Center. Let me go back to this chart: The continuum of risk. If the 
objective is to reduce death and disease, then you have to drive the 
risk down. To drive the risk down, you have to bring less harmful 
products to the marketplace. So you have two choices. You have a bill 
that will do that through creating a Harm Reduction Center that 
regulates with all the authority the FDA has or you can choose the 
Kennedy bill, which basically isolates these two categories of 100 
percent risk and 90 percent risk; and you put that into statute that 
the FDA cannot touch products that are over here, as shown on the 
chart, but, more importantly, you structure it in a way that the FDA 
could never approve any new products that are less harmful.
  The Harm Reduction Center actually has two responsibilities. One, it 
is to regulate the entire tobacco industry and, two, to facilitate 
smokers moving over to lower risk options because we want to reduce the 
harm that potentially can be caused.
  I am going to speak later tonight, as I offer this substitute, which 
I hope every Member will take the opportunity to read on behalf of 
Senator Hagan and myself. I am sure we will both speak tonight and 
throughout the day tomorrow as we get ready to have a vote. It is my 
hope Members will take the opportunity to review the substitute.
  Let me put Members on notice right now, some will come to the floor 
and claim: Well, this is a substitute that the HELP Committee 
considered and they rejected it 12 to 8, 13 to 8--I cannot remember 
exactly what it was. Let me put Members on notice before they come down 
here and make claims on it, it is not the same bill. It is not the same 
substitute. I am sure staff now is going to scramble to figure out what 
is in this new bill.
  We listened to criticism. Where we thought we could better the bill, 
we did that. The fact is, there are still going to be Members who come 
and make claims tonight, tomorrow--before this is all settled--that are 
not accurate. I put them on notice now: I will come to the floor and 
expose exactly what you say.
  This is not a debate where we are going to use the charts we had 10 
years ago and say they are relevant today. This is not a debate where 
we are going to have information that was produced in 1990 for an issue 
we are discussing and debating in 2009. It is not right to do that to 
the American people.
  In concluding--because I see my colleague is here wanting to speak--I 
pointed out earlier that in 1998 the industry made a massive payment to 
the 50 States of this country. It was called the Master Settlement 
Agreement, MSA. Mr. President, $280 billion that the industry, over a 
fixed period of time, was paying out to States. It was for two 
purposes: No. 1, to subsidize health care costs--the Medicaid costs in 
States--that might have been from the direct cause of tobacco usage; 
and, No. 2, so States would have the resources they needed to create 
cessation programs so people would move from this category, as shown on 
the chart, to this category or quit tobacco use all together.
  I came to the floor yesterday--and I will say for the purposes of the 
Presiding Officer in the Senate, who is from Illinois--CDC made 
recommendations to every State to do this every year: How much of the 
money they got that year should be used for cessation programs.
  Well, in Illinois, Illinois devoted 6.1 percent of what the CDC 
recommended for cessation programs to cessation programs--6.1 percent. 
Mr. President, 19.9 percent of the youth in Illinois have a prevalence 
to smoking--way too high. In Illinois, though, 43.7 percent have a 
prevalence to alcohol use. In Illinois, 20.3 percent have a prevalence 
of marijuana use. I am not picking on the Presiding Officer of the 
Senate, and I am certainly not picking on Illinois. I will have used 
all 50 States before this is over with.
  As I said, one of the shocking things to me, as I explored this 
chart, was that I found that, I believe it was, 48 out of the 50 States 
have higher youth prevalence in marijuana use than of smoking.
  Well, some are going to claim the reason you have to give FDA 
jurisdiction over this is because the age limitation of 18 is not 
working, that youth are getting products. Well, you know what. There is 
no age where it is legal to buy marijuana, especially for youth. Yet in 
48 out of 50 States, the prevalence of marijuana usage is higher than 
the prevalence of smoking.
  Do not believe for a minute you are going to construct a regulatory 
regimen here that is going to take a product that is legal to people 
over 18 and it is going to allow a framework where people under 18 are 
not going to get it, when a higher percentage of them can get a product 
that is illegal for everybody in America.
  I might also say to the Presiding Officer, his State is not the 
lowest from the standpoint of the percentage they chose of the CDC 
recommendation to devote to cessation programs. As a matter of fact, 
one State had a commitment of 3.7 percent.
  Now, $280 billion--paid for by the tobacco industry to cover health 
care costs and cessation programs--I would suggest to you, if the 
States had all spent 100 percent of what the CDC told them they needed 
to spend, we would not be here talking about the regulation of the 
tobacco industry because cessation programs would have worked and the 
rate of 19.6 percent today of smokers would have reduced drastically.
  I would remind you that the CDC says, if we do nothing, by 2016, we 
reduce the rate to 15.7 percent of the American people. But when CBO 
looked at the Kennedy bill, they said, in 10 years, in 2019, the 
Kennedy bill would reduce smoking to 17.5 percent. If we do nothing, we 
get to 15.7 percent. If we pass this bill, we get to 17.5 percent. If 
the objective is to have less smokers, the answer is: Do nothing.
  But tonight, sometime around 6 o'clock, Senator Hagan and I will come

[[Page 13668]]

to the floor not to suggest to our colleagues that we do nothing but to 
suggest to our colleagues we do the right thing, that we find the 
appropriate place to put regulation, that we give it the same teeth the 
FDA has, that we give them the ability not just to have black-and-white 
print advertising--such as the Kennedy bill does--I suggest in my 
substitute we eliminate print advertising, we do away with it in total.
  We do not worry about whether Vogue magazine, which is typically 
bought by an adult woman, might be looked at by a teenage girl. If we 
just eliminate print advertising, we do not have that problem. The 
Kennedy Bill limits it to black and white. We ban it in total.
  If Members will take the opportunity to read both bills--to read the 
substitute, to read the base bill--they will find out we are actually 
more expansive from the standpoint of regulation. We actually 
accomplish the task of reducing disease and death. I believe, by some 
of the things we do, we actually reduce the amount of youth usage, such 
as by eliminating print ads.
  But there is a big difference. I do not turn it over to the FDA. I do 
not do that for a selfish reason--purely selfish. I spent 2\1/2\ years, 
15 years ago, when I got to the U.S. House of Representatives, where I 
was tasked by the chairman of the Energy and Commerce Committee to 
write a bill that modernized the Food and Drug Administration. It took 
2\1/2\ years to do. It was signed into law in 1998.
  We opened the entirety of the Food and Drug Administration and 
revamped all the ways it worked to make sure we could reach new 
efficiencies in the approval of lifesaving drugs, biologics, which were 
new, devices. We spent a meticulous amount of time going through this 
with one goal in mind: Do not lower the gold standard the American 
people have come to expect through the FDA; do not lower the standard 
an applicant has to reach so we can assure the safety and efficacy of 
the products we regulate.
  Well, I thought that was important, and in 1998 it became law. And 
you know what. When we had the entirety of the FDA bill open to every 
Member of the House and the Senate, no Member of Congress offered an 
amendment to give the FDA authority over tobacco because they knew, at 
the time, the integrity of the FDA was more important than who 
controlled it from a regulatory standpoint. They did not want to 
jeopardize the integrity of what the FDA core mission was.
  But here now, 11 years later--I might also say, the Supreme Court 
ruled in a court case that the FDA did not have jurisdiction over 
tobacco. The reason they chose was, in 1998, the Congress opened the 
FDA Act and did not give FDA authority. Therefore, it was not the 
intent of Congress for FDA to have authority.
  So those who claim this is part of the FDA--should have been, always 
would be--it is not the case. Because Members of Congress had the 
opportunity and did not do it. Why? Because of the integrity of the 
Food and Drug Administration. Why in the world would we have changed, 
in 11 years, to where we would risk the gold standard of drug approval, 
of biologic approval, of medical devices approval? Why would we risk at 
a time where, every year for the past 3 years, we have had an issue on 
food safety--we have had salmonella in peanut butter; we have had 
tainted spinach; we have had imported products that have killed 
Americans; and the FDA is the agency responsible for the regulation of 
food safety--why would we dump on an agency today that is struggling to 
meet their core mission of food safety a new product such as tobacco?
  Why would we take an agency, such as the FDA, that regulates 25 cents 
of every $1 of the U.S. economy, and say: You know what. You have never 
regulated tobacco before, but we would like you to do it now. We would 
like you to take senior reviewers who are approving lifesaving 
applications for drugs, and we would like you to move them over to the 
tobacco area.
  What else can they do? You cannot go out in the world and find people 
automatically at the FDA who have ever regulated tobacco. So they are 
going to take their most senior folks. What does that mean? The 
likelihood is, we are going to wait longer for that lifesaving drug. We 
are not going to reduce health care costs because chronic disease is 
not going to have new therapies because the applications will not be 
acted on. Heaven forbid we do this and all of a sudden somebody dies as 
a result of an FDA reviewer who looked at it and said: Well, you know, 
I know our core mission is to prove the safety and efficacy of all the 
products we regulate--with the exception of tobacco because you cannot 
prove it is safe and effective--so if I am going to turn my head on 
tobacco, maybe I will turn my head on this medical device because it 
does not look too bad, and all of a sudden somebody dies from it.
  This is a huge mistake for the Senate to do. I urge my colleagues: 
Read the bill. You will not vote for it. Read the substitute, it will 
supply the sufficient amount of regulation to an industry that can be 
better regulated, should be better regulated--more importantly, a 
substitute that goes much further from the standpoint of reducing youth 
usage of tobacco, which gets at the heart of death and disease.
  In fact, the substitute is the only bill that accomplishes what the 
authors of the current base bill suggest is the reason we are debating 
this issue. This chart I have in the Chamber proves it. It does it in 
the most visual of ways. If we do not allow these products to come, you 
have now locked it into this. That is not what the authors suggest is 
the objective.
  I urge my colleagues, tonight, when given the opportunity, listen 
intently, read the bills. Tomorrow, when you are given an opportunity 
to vote, vote for the substitute. Do not support the base bill.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I wish to express my appreciation to 
Senator Burr for his hard work on this issue. He is one of our most 
able Members. I think the fundamental premise of the study that showed 
his bill will reduce smoking more than the bill on the floor, the 
Kennedy bill, is something that should give us pause. I know they have 
worked very hard on it. He has worked very hard on it, and I hope my 
colleagues will avail themselves of his suggestion to read it--both 
bills--and make a judgment on what they think is best for the country.


                     Unprecedented Budget Deficits

  Mr. President, the unprecedented budget deficits we see today are 
creating fears of a surge in bond interest yields and a fall in the 
U.S. credit rating. I wish to talk about that. I have talked about it 
previously. But I would repeat my fundamental assertion that nothing 
comes from nothing, nothing ever could, as Julie Andrews said. Debts 
must be paid, and they will be paid one way or the other. Either 
somebody is going to lose--either you are going to print money and 
inflate the money or you are going to pay back the debt with interest 
to whomever will loan you the money to fund the debt. We are moving 
into a decade of the most unprecedented deficits in the history of our 
country. Nothing has ever been seen like it before. It is 
irresponsible. We have not discussed it enough. It is breathtaking to 
people who examine it.
  The estimated deficit for fiscal year 2009, the one we are in, ending 
September 30, is expected to be $1.84 trillion. That is a lot of money. 
That number dwarfs even the $500 billion maximum, inflation-adjusted 
deficit--nearly the same dollars to dollars--during World War II. It 
was only $500 billion in World War II. So this year, the deficit is 
projected to be 12.9 percent of the gross domestic product. In 1 year, 
the deficit will be 12.9 percent of the gross domestic product of the 
United States of America. That is a level not seen since World War II.
  David Walker, the former Comptroller General of the United States--
that is what we call the Government Accountability Office--has been 
speaking out for a number of years on deficits. He criticized President 
Bush for deficits. He continues now to speak out

[[Page 13669]]

since he has left government. He has concluded that the United States 
of America is in danger of losing our AAA credit rating. He points out 
that the cost of insuring U.S. Government debt has risen so much that 
it recently cost more to buy protection on U.S. debt than debt issued 
by McDonald's Corporation. That is his statement. In fact, a Wall 
Street Journal editorial in March noted that the insurance rate for 
U.S. Government bonds rose 700 percent to 100 basis points between 
March of 2008 and March of 2009. That means in this past month of 
March, it costs $10,000 to insure $1 million in Treasury bonds. Who 
would think you would have to get insurance to guarantee the payment of 
U.S. Treasury bonds? As of May 28, that insurance cost had fallen to 45 
basis points, but that is still more than three times what it was in 
March of 2008, just a year ago. Not only that, as of May 28, the cost 
of insuring our government's debt is higher than that of France and 
Germany.
  Mr. Walker goes on to note that the United States has had a AAA 
credit rating since 1917. Furthermore, he states that given the current 
national debt and deficit, the United States may not deserve the AAA 
rating we have today. That is a warning. I hope that is not so. I hope 
we don't see a reduction of our AAA rating, which has a real impact in 
how much we have to pay to borrow money, and we are borrowing a lot. 
But I think this man deserves hearing. This is a serious commentator on 
American deficits and debt.
  So the idea he has proposed is not farfetched. In fact, the Standard 
& Poor's--S&P--a few weeks ago lowered its outlook on Great Britain's 
debt. They put it on a negative outlook. While the United Kingdom is 
keeping its AAA rating for now, the Wall Street Journal notes that the 
negative outlook that S&P has found is a precursor to a downgrade. They 
also note that Japan's debt, in fact, has already been downgraded to 
AA2 from AAA. So the question is, are we next?
  Not only is our credit rating in danger, but it is costing more and 
more to borrow. This is very important. While it may appear to be a 
separate problem, I think it is related to us spending more and 
borrowing too much. The yield on the 10-year Treasury bond, which rises 
with the increased government debt and expectations of inflation, has 
surged 54 percent this year, from 2.4 percent to 3.7 percent as of 
yesterday. It was 3.2 percent 2 weeks ago. Yesterday it was 3.7 
percent. That is a significant surge.
  So let me say it this way, and to repeat: We will borrow this year a 
record amount of money. Not only that, over the next 10 years, we will 
continue to borrow at unprecedented rates. We are borrowing because we 
are spending more than we take in--a lot more than we take in--and 
nothing comes from nothing.
  How do we spend more than we take in, in taxes? How do we do it? We 
borrow the money. How do we borrow the money? We sell Treasury bills. 
We ask people to take their money out of their bank account and buy 
U.S. Treasury bills. We have had an unusual situation with interest 
rates being low, because people were so afraid if they bought stock or 
private bonds, that companies may go bankrupt, and they were interested 
in buying government bonds, Treasury bonds, presumably the most secure 
bonds in the world. So we have had a bargain and we have been taking 
advantage of it. But all of a sudden now we are beginning to see a 
surge in these interest rates, because people are thinking: Well, if I 
don't get a 3-percent return when I buy a Treasury bill, and inflation 
next year is 5 percent, and my money is tied up for 10 years, I am 
losing 2 percent a year. I am not gaining money; I am losing money. The 
world looks at it like that. The Chinese and people in Saudi Arabia who 
have excess wealth and bought Treasury bills are looking at this too 
and they are demanding higher interest rates. That is why it is going 
up. That means each year we will pay a larger percentage of the tax 
money we take in to pay interest on the debt than we would have if that 
had not been the case.
  I am told that this rampant rise in Treasury rates is the talk of 
Wall Street. How has it happened? Net debt sales; that is, the net 
sales of Treasury bills and the borrowing the government has done, 
increased from $332 billion last year to $1.555 billion this year. That 
is a lot. That is almost five times. When you put too much of a product 
on the market, things happen, and people start demanding better 
returns. Two weeks ago, Barron's reported as big news that the U.S. 
Department of Treasury bond yields could top 4 percent this year. And 
it seems, since it already hit 3.7 percent yesterday, that we may get 
there sooner than Barron's even anticipated.
  So how does all this stack up with what the President estimated when 
he submitted his budget earlier this year? His budget estimated an 
average yield on Treasury bonds at 2.8 percent for the entire year. We 
already hit 3.7, and Barron's said we are going to hit 4, so we are 
ahead of Barron's schedule already. So the 10-year Treasury bill is 
increasing, and hopefully, it won't surge out of reason. Some are 
worried about that. It does look like it may well reach that 4 percent 
or more this year. That is bad news for American taxpayers.
  So we are like the credit cardholder. When interest rates go up, it 
costs us more. When the interest rates on Treasury bills go up, we have 
to pay more to get people to loan us money so we can spend it. I guess 
it is fair to say we have only ourselves to blame.
  Even if you took the President's assumptions, interest on the debt is 
supposed to be $170 billion this year. So this Nation will pay on the 
debt we already have accumulated $170 billion in interest this year. 
That is a lot of money. We spend $40 billion on the Federal highway 
program. We spend less than $100 billion on Federal aid to education in 
America. We are already spending, and will spend this year, $170 
billion on interest, on debt we have run up before. That equals $1,435 
per household. That is a lot of money, $1,435. By 2019, according to 
the Congressional Budget Office, our own Budget Office's evaluation of 
what the President's budget is going to be, 10 years from now, the 
interest on the debt will not be $170 billion; it will be $800 billion. 
That would be $3,433 per household, more than twice the current debt 
interest payment that each household in America is to incur. Why? 
Because we are spending too much. We are spending money we don't have. 
We spent $800 billion on a stimulus package. We are spending $700 
billion on the TARP Wall Street bailout. Our increase in spending for 
the underlying Federal budget this year, the nondefense, the 
discretionary spending was a 9-percent increase. That is huge, many 
times the rate of inflation, a 9-percent baseline increase. Most of my 
colleagues know that if you increase spending, or have an interest rate 
of 7 percent, your money will double in 10 years. So at 9 percent, in 
less than 10 years, the amount of our spending would double; entire 
government spending in 8 or 9 years would be doubled. That is why we 
are running up debt. But the most troubling thing is, it is going to 
continue.
  We have heard the President say, I am worried about this. We are 
going to have to talk about this in the future. Have you heard that? 
Oh, yes. This is a big problem. We are going to have to do something 
about it in the future. Well, the future is becoming now. The budget 
that he submitted to us didn't do anything about it in the future. Let 
me be frank with my colleagues. The budget this year, the deficit this 
year the President projected would be $1.76 trillion. That has already 
been proven to be low. They are now estimating $1.84 trillion in 1 
year. And they project it dropping down to maybe $500 billion in 3 or 4 
years, assuming the economy is growing well. But over the 10 years, in 
the tenth year of his budget deficit, the annual deficit in the tenth 
year, is over $1 trillion. And over the 10 years, the average deficits 
from the President's own submitted budget would be almost $1 trillion a 
year, and the highest deficit prior to this we have ever had was $455 
billion last year. So this is averaging almost twice, really twice the 
highest deficit we have ever had.
  The President has said, correctly, that these trends are 
unsustainable. He

[[Page 13670]]

recognizes that. He also said, according to Bloomberg at a townhall 
meeting in New Mexico on May 14, that current deficit spending is 
unsustainable. He warned of skyrocketing interest rates for consumers 
if the United States continues to finance government by borrowing from 
other countries. So I agree with him on that, but it is time to start 
doing something.
  China remains the biggest foreign holder of United States debt in 
Treasuries, and Prime Minister Wen Jiabao stated in March that China is 
worried about its investments.
  Not only that, but yields are currently rising despite an extremely 
unusual move by the Federal Reserve to directly purchase Treasury 
bonds. So the U.S. Federal Reserve--our banking gurus--have decided 
they will take money and purchase U.S. Treasury bonds to keep the 
interest rates from going up so fast, because there are not enough 
people out there to buy them all, I suggest. It holds the interest 
rates down somewhat.
  The Fed has not done anything like this since the 1960s. It is very 
unusual. Even then, it was a much smaller operation. They announced a 
$300 billion purchase plan in March and have made $100 billion in 
purchases so far. If those purchases are not carefully managed, they 
could lead to inflation down the road; there is no doubt about it. Not 
only that, but the Fed could get stuck with sizable losses if the yield 
on those Treasury bills continues to rise.
  According to Barron's, if rates rise 1 percentage point, it could 
lead to a $140 billion loss for the Fed in that deal of purchasing 
these bonds. That is $140 billion. The Federal highway spending in 
America is $40 billion. This is a huge sum of money.
  Let's look at the deficit and debt that are driving our interest 
rates higher as part of his detailed budget released in May. The 
President raised his estimate of a deficit from $1.75 trillion to $1.84 
trillion. I ask, do we remember that at that same time when the 
President released his budget, he also released a plan that was going 
to show that he was committed to frugality, and it would supposedly 
save $17 billion? Remember that? Some people had to laugh at it, 
really. It was pretty amazing. There were these numbers out there, and 
he announced this frugality package to save $17 billion. It wasn't 
clearly understood, in my view, how insignificant that was, because at 
the same time they were announcing saving $17 billion, the reaccounting 
of the projected deficit for this very fiscal year jumped $90 billion. 
So it dwarfed the $17 billion in spending cuts that were announced at 
that time. So we had a $17 billion efficiency project, which remains to 
be seen whether it will be successful, and the total deficit 
expectation jumped $90 billion.
  The President's budget proposes to take us to a debt level of 82 
percent of GDP by 2019. In 2019, the amount of debt, in the country at 
that point would amount to 82 percent of our entire gross domestic 
product in America. That is a level not seen since 1946, at the height 
of World War II. The difference between now and then, of course, is 
that that was during a war. It was widely known that those expenditures 
were temporary, and when the war was over, they would end; and, in 
fact, they did.
  However, today, the President is projecting deficits averaging nearly 
$1 trillion as far as the eye can see, with no projections to show them 
drop, or be reduced. It has been popular to complain that, well, 
President Bush had deficits--and he did. I criticized him for that, and 
I think he could have done a better job. His highest deficit was $455 
billion. This year's deficit will be $1.8 trillion, and they will 
average $900 billion over the next 10 years. Not 1 year in the next 10 
years, according to the President's own budget, will his deficit be as 
low as the highest deficit President Bush had, which was $455 billion. 
Even as a percentage of the total gross domestic product, it is 
astounding. President Bush's deficits averaged 3.2 percent of GDP. 
President Obama's budget, over the next 10 years, will average 7.3 
percent of GDP each year--twice what President Bush's averaged.
  I am worried that we are not getting the kind of bang for our buck 
that we hoped to get. We got an $800 billion stimulus package that was 
supposed to go out there and build infrastructure and create jobs now. 
It was money that had to be spent in a hurry. The truth is, though, 
that most of that money is not going to be spent until after 2010. It 
takes time to get that money out. The CBO estimated that $162 billion 
of the $311 billion now appropriated won't be spent until 2011, or 
later--not to mention that there is no evidence of the government ever 
taxing and spending its way out of a recession. That is not, 
historically speaking, proven to work.
  Christina Romer, the Chairman of President Obama's Council of 
Economic Advisers, wrote about this in 1992, in a paper titled ``What 
Ended the Great Depression?'' in the 1930s. She concluded:

       Nearly all of the observed recovery of the U.S. economy 
     prior to 1942 was due to monetary expansion [from gold 
     inflows].

  She gives almost no credit to the increased spending that occurred.
  Another report with Ms. Romer's name on it, one that the President's 
economic team put out this January--and she is the head of the team--
was titled ``The Job Impact of the American Recovery and Reinvestment 
Plan.'' It estimates that the $800 billion stimulus package will lower 
the unemployment rate and create 3.6 million new jobs, and it includes 
a chart. The chart, if you look at it today--and it has been examined 
by others, such as Greg Mankiw, Chairman of the Council of Economic 
Advisers--it shows that their projected unemployment rate, without the 
stimulus package--that rate would hit a certain level. Now that we have 
had the $800 billion stimulus package, what does it show? That we are 
trending, on unemployment, exactly where they projected the 
unemployment rate would be if there were no stimulus package at all.
  Indeed, if you look at the numbers, very little of it has gotten out 
of there, and you can see how little was stimulative, or job creating, 
or how much of it was spent on things it should not have be spent on. 
Indeed, this Senate rejected and failed to adopt my amendment that 
would have said at least the employers who hired people with this money 
ought to run the E-Verify system to make sure the people they hire are 
here legally in America and are entitled to work. That wasn't even part 
of it.
  Unemployment continues to go up. It was 8.9 percent in May, and a lot 
of people think it may hit 10 percent. I hope not, but I think it is 
likely to continue above 9 percent, which is higher than what was 
projected, for sure.
  I say all this to point out that some of the brilliant thinkers in 
our country believe we had to do all this; if we had not, the country 
would sink into the ocean. We could have this problem and that problem. 
But the testimony we had in the Budget Committee from the Congressional 
Budget Office, whose numbers have held up pretty well so far, and they 
are basically hired by the Democratic majority here, but they are 
nonpartisan and do a good job. They projected only a slight difference 
in unemployment, if you had a stimulus package--only slightly better 
than if you didn't have one at all. But, more importantly, they 
concluded that over 10 years, the stimulus package, if we passed it, 
would have a net negative effect on the economy. It should help some in 
the 2 or 3 years from the moneys being pumped out--it has to help some 
out soon.
  But the crowding out of private borrowing, the interest that will 
have to be paid on the debt over the 10-year period, will mean that the 
economy will be less healthy at the end of 10 years than if we hadn't 
had the bailout package or stimulus package at all, which confirms my 
view that nothing comes from nothing. There is no free lunch. Debts 
have to be repaid. You cannot create something out of thin air. If you 
spend something today and you have resources today to spend today, and 
you took them from tomorrow, they are not going to be there tomorrow. 
Somebody is going to have a greater burden to carry--our young people--
than if we hadn't taken their money and spent it today.
  I have to say that I am not happy about this. I am worried about it. 
I do

[[Page 13671]]

believe deficits matter. People who say deficits don't matter--and some 
Republicans used to say that--what planet are they from? Of course, 
deficits matter. You can cover them up, the Fed can help, and smart 
monetary policy and spending policies may make a difference here and 
there, but in the long run, it drives you down, and we have to be 
serious about it. I hope as time goes by, we can work together in a 
bipartisan way to try to establish some control over our spending.
  Just Monday, GM went into bankruptcy. We already have $20 billion in 
Federal Government money going into General Motors prior to bankruptcy, 
and the White House plans to add another $30 billion. That is a 
substantial additional investment. This is what the numbers show. 
First, the White House said we are going to be out of GM and get our 
money back in 5 years. That is their goal, right? You heard that we are 
going to get the money back. But the Wall Street Journal has calculated 
this, and they have said for the Federal Government to get their money 
back out of GM, they would have to sell their stock, and GM's market 
cap, the total value of their stock, would have to reach a value of $80 
billion. So to get our money back in 5 years, the market cap or value 
of GM stock would have to total $80 billion. Let me remind you that at 
its peak, in 2000, the highest GM ever got as a market cap was $56 
billion. Their current market cap is less than $1 billion--$441 million 
dollars. It goes beyond rationality to believe that in 5 years--or 
maybe ever--we are going to get our money back out of GM. I am worried 
about that.
  That is one more example of the kind of spending we are doing, and 
the money is being spent in a way that is not controlled. How does the 
Secretary of the Treasury decide how much money to give? And to what 
corporation? What about suppliers of GM? What about automobile dealers, 
who are losing their shirts and going into bankruptcy? Nobody bailed 
them out.
  Somewhere along the way, it has been decided that we need to do this. 
It should have been done according to the established constitutionally-
approved reorganization policies of bankruptcy. The U.S. Government 
could have put some money into GM in an effective way, I think, and had 
a positive benefit. But just to pour the money in, as we have, in an 
unprincipled way, is not good.
  I will repeat one more time my concern about the unlawful way, the 
unprecedented way, in which this money is allocated.
  The money comes from the TARP, the Wall Street bailout. I opposed it 
because I thought the language was too broad, but even I didn't know it 
was this broad. But we were told if we passed the TARP bill, Secretary 
Paulson and the Treasury Department would buy toxic assets. He was 
specifically asked at a House committee meeting whether he would buy 
stock in banks. He said: No. His goal was to get the money flowing 
again in the financial markets, and we had to do something about the 
financial markets. Senators were eventually convinced, and it was 
rammed through here in the very shortest period of time--in a panic, 
really. A week had not gone by when he had decided to buy stock and not 
buy toxic assets, not to buy toxic mortgages. As time has gone by, that 
same money is used to buy stock in what was once a private corporation.
  I think this is unbelievable. There are no hearings on where the 
money is going. There is no public ability to understand what kind of 
justification these banks, GM, or Chrysler had to put forward to 
receive billions of dollars from the taxpayers. It was all done 
basically in secret, as far as I can understand. They are telling the 
company they have to do this and that and firing the CEO and all of 
those kinds of things that have been occurring. I don't think the 
American people are happy with that. The American people are very 
concerned--I believe they are rightly concerned--because we are doing 
some things that have never been done in the history of our Republic. 
It is not healthy.
  I hope that somehow we can get our footing again, get our balance, 
and return to the tried-and-true principles that made this country 
great.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.


                              Health Care

  Mr. BENNETT. Mr. President, we have just heard from the President of 
the United States with respect to an effort to get a bipartisan health 
care plan. I have been to the White House summit on health care. I have 
heard the President speak directly to this issue. I applaud him in his 
effort to make sure we deal with this problem intelligently, and I 
accept at face value his desire that it be done in a bipartisan manner.
  But as we have this discussion about doing this in a bipartisan 
manner, it all ultimately comes down to one sticking point that seems 
to be firmly established in the President's position and firmly 
established in the position of those who sit on this side of the aisle. 
At the moment, that sticking point seems to be irreconcilable. I want 
to talk about it in direct terms so that we understand what it is we 
are talking about and those who listen will understand why those of us 
who are Republicans are determined to stand firm on this point.
  This is the point: Shall there be a public plan, a government-run 
option in the choices that are available to people with respect to 
health care?
  Along with Senator Wyden of Oregon, I have cosponsored the Healthy 
Americans Act, which is determined to create as many options as 
possible, to create a wide range of choices for Americans to make with 
respect to their health care.
  We recognize we are going to have to change the tax laws in order to 
give people control over their own health care dollars. Right now, 
health care is the only part of the economy where the individual 
receiving the goods or services does not control the money that pays 
for the goods or services. So it is obvious that you will not have 
market forces available in that circumstance. If the individual who is 
receiving the goods or services controls the money that pays for the 
goods or services, he or she will make a different choice than if 
someone else is controlling the money. But in health care, somebody 
else makes the choice, and that is why the core function of the Healthy 
Americans Act, which Senator Wyden and I are cosponsoring, says 
individuals should be in control of their own money and we should have 
as many choices as possible so that individuals can go out in the 
market.
  There will be competing forces. Competition brings prices down. 
Competition creates new opportunities. Competition fills niche markets. 
We believe all of that will happen if we have this degree of choice.
  When we have had this conversation with officials of the 
administration, they don't disagree. As a matter of fact, many 
officials of the administration have said to me: We really like what 
you are doing with Senator Wyden, and we applaud you, Senator Bennett, 
for reaching out in a bipartisan way to try to solve this problem. But 
we just have one additional factor we would like to add to your bill. 
We would like to say that as a backup, as a final option, we want a 
government-run plan to be there as one of the available choices, just 
in case none of the others work. That is, as I say, the sticking point 
here.
  I have said to members of the administration: If we end up with a 
government-run plan as one of the options in my bill, I will vote 
against my own bill.
  The government-run option will change the playing field, will 
ultimately drive out all of the other choices because the government is 
in a position to subsidize it. The government is in a position to make 
it more attractive than anything else and thereby gain the blessing of 
the voters because the voters will say: The government took care of 
those greedy companies that would otherwise make me pay this, that, or 
the other. Here, the government choice is cheaper; isn't it wonderful 
that the government is looking out for me? Ultimately, we would end up 
with a government plan, single payer for the whole country.
  I know there are many of my friends on the other side of the aisle 
who want

[[Page 13672]]

that, and they are very open about it and very direct about it. They 
say a number of things. They say the government plan is cheaper, the 
government plan provides health care for everybody, the government plan 
is fairer, and that is what we ought to have.
  I wish to spend a little time talking about the experience of those 
countries that have adopted that attitude. If I may be personal and 
give my own example before I get into the statistics, I will tell you 
about a situation when I was living in Great Britain and had a medical 
problem. I won't bore you, Mr. President, with the details of the 
problem, simply that I went to a doctor in Scotland to see if anything 
should be done. The doctor first signed me up because under the British 
system a doctor--this shows how long ago it was, but the system has not 
changed--got a shilling a week for every patient he signed up on his 
list. So immediately he wanted to sign me up so he would get that 
shilling for having me there, which would be a decimal of a pound today 
rather than that old designation.
  Once he had me signed up, as I say, he examined me. He said: Yes, you 
do need treatment. And he gave me a piece of paper that would allow me 
to go to the Edinburgh Royal Infirmary, where I was to see a surgeon. 
So I went to the Edinburgh Royal Infirmary and sat there for most of 
the day before a doctor could finally see me.
  The doctor saw me and checked me out and said: Yes, indeed, you 
should be scheduled for surgery.
  I said: Fine. I have a schedule. Can you give me some idea when the 
surgery will be so I can arrange my affairs to be available?
  He said: My guess would be 9 months.
  I said: I am going to be returning to the United States in less than 
9 months, so I guess we can just forget this.
  I communicated that to my father, who was in the United States, and 
he said: I don't think so. Can you get a surgeon who would operate on 
you right away?
  So I inquired and I was told: Yes, you can get a private surgeon, but 
the private surgeon cannot take the health care system dollars or 
pounds. He is outside of it. If he stays in private practice, he cannot 
participate in the national health system at all.
  I said: OK, that is fine.
  My father said: I will pay it. Where can you go?
  I went to the private surgeon and, yes, he had a practice where he 
took only patients who were outside of the health plan. He looked at it 
and said: Yes, you need surgery.
  I said: All right. When?
  He said: Will Wednesday be soon enough?
  This was on a Monday.
  I said: All right.
  We went into a private hospital. It was separated from the national 
health service. He performed the surgery. I paid him cash, got the 
thing taken care of, and finished my time in Great Britain with that 
particular problem solved.
  I would like to think that was only the case back when I was younger, 
but I find it is still the case, not only in Great Britain but in other 
countries that have this kind of problem.
  Let me share a few statistics with you of what happens with respect 
to this single-payer system.
  One of the things we are told by those who support single payers is 
that the outcomes in these other countries are really not any different 
than they are in America, that we are paying far more in America and 
the outcomes are basically the same. The statistic they usually use in 
order to prove that America is not any better is life expectancy and 
infant mortality. They say as a country, our life expectancy is not 
that much better than anybody else's and our infant mortality rate is 
as high or higher than other countries. Shame on us, we are not getting 
good health care that we are paying for.
  Life expectancy is tied in very many cases to either ethnic or 
geographic locations. The life expectancy, for example, in Utah, where 
the behavior is a little different than it is in some other places, is 
substantially higher and has little or nothing to do with the health 
care. It has to do with the culture in Utah that causes people to 
behave in a healthier lifestyle.
  Let's go beyond this broad-brush approach and look at some specifics.
  The largest international study to date has found that the 5-year 
survival rate for all types of cancer among both men and women is 
higher in the United States than in Europe. Isn't that a statistic 
showing that we are getting a better result in America than in Europe? 
A cancer survival rate is not something that is due to the geography of 
where you are born. If you are born in the inner city, that has 
something to do with infant mortality rates, or if you live in a 
healthy environment, that has something to do with life expectancy. 
Cancer survival rate has to do with health care, and the health care in 
the United States is better than it is in Europe and has produced a 
higher survival rate for both men and women.
  In Britain, there are one-fourth as many CT scanners per capita as 
there are in the United States and one-third as many MRIs. If we think 
the CT scanner and the MRI produce a better result in terms of health 
care, we want to be in the United States. We do not want to be in one 
of these single-payer, government plans of the kind President Obama 
wants as an option destroying the other options and choices there would 
be if we pass the Healthy Americans Act.
  The rate for treating kidney failure--dialysis or transplants--is 
five times higher in the United States for patients between the ages of 
45 and 84 and nine times higher for patients 85 years and older. Again, 
there is a personal interest here because members of my family have 
kidney disease. I want them in the United States with the kind of 
system we have where they do not have to wait and they do not have to 
worry about government regulations. I want them here where it is five 
times better than it is in Europe with respect to kidney disease.
  Right now, nearly 1.8 million Britons are waiting for hospital or 
outpatient treatments at any given time--1.8 million waiting in the 
circumstance that I described in my own situation. In 2002 to 2004, 
dialysis patients waited an average of 16 days for permanent blood 
vessel access in the United States, or 20 days in Europe, and 62 days 
in Canada.
  We often hear about the benefits of being in Canada. I have 
constituents who come from Canada, who have moved to Utah. Every time 
this comes up, they come to me and say: Senator, whatever you do, do 
not give us the Canadian system. Whatever you do, make sure that 
America doesn't go in the direction the Canadians have gone.
  Let me give you some examples to demonstrate why that is good advice. 
This is one that broke out in the debate in the Canadian Parliament. A 
woman by the name of Emily Morely, in March of 2006, was informed by 
her doctor that her cancer had spread and she needed to see an 
oncologist, and then she was told: You will not be able to get an 
appointment for months. Well, if my cancer is spreading, I don't want 
to wait months for an appointment. Her family raised a ruckus, they 
called the local newspaper, a petition was signed by her neighbors 
demanding she get care, and then, in response to that, the government 
got her to a specialist. Once again, in the government, you respond to 
the voters. If you are getting bad publicity in the press, or the 
voters don't like what you are doing: Oh, let's take her to a 
specialist. So she got to a specialist and he told her she had only 3 
months to live.
  Well, she at least had time to put her affairs in order. Had she not 
had the intervention of her family and her neighbors, it is quite 
likely she would have died before even seeing an oncologist for the 
first time.
  But let's go to another example that may be even closer to home to 
the legislators. A member of Parliament in Canada, Belinda Stronach, 
strongly supports the Canadian health care system, and she would object 
to this kind of argument that the Canadian health care system isn't 
very good. But where did she go when she was diagnosed with cancer in 
2007? She went to California and paid for the treatment out of pocket. 
Even a member of Parliament who supports the Canadian system recognized 
that the government plan didn't

[[Page 13673]]

work for her. And with her own health at risk, she came to America and 
took advantage of what we offer here.
  There is the case of the mother in Calgary, Alberta who was expecting 
quadruplets. I am the father of twins, and they came as a great 
surprise. Quadruplets is something I am not sure we could handle, and 
certainly they would require very good facilities to deal with a 
pregnancy that produces quadruplets. She is in Albert, Canada, and she 
is flown to Great Falls, MT, to deliver the quadruplets. Great Falls, 
MT, is not thought of as one of the great centers of health care 
excellence in the United States. Yet the facilities in this small town 
in Montana were better than any facility available anywhere in Alberta.
  These are the examples of a government-run plan and because people 
who are getting the service don't control the money the government plan 
can end up focusing on overall cost control to the detriment of the 
people who are trying to access it. I don't think ultimately the 
American voters, having gotten used to the access that they currently 
have--being used to the idea that they do not have to wait--would 
ultimately tolerate a government plan.
  My consult to President Obama and to my colleagues here in the Senate 
is to slow down a little. We are talking about restructuring 18 percent 
of the entire economy. We spend 18 percent of our GDP on health care. I 
agree absolutely that it is long past time that we addressed this 
issue; that we rationalize the challenge; and that we do things that 
make it far more effective.
  As I have spent the last 3 or so years working with Senator Wyden to 
try to understand the problem and fashion the Healthy Americans Act in 
a way that will solve the problem, I have discovered a great truth that 
I didn't realize before, and that is this: The greatest cost control 
factor in health care is quality. The best health care is the cheapest 
health care. And it has been achieved in those places that have focused 
on quality first and the patient first, and it has not involved any 
government intervention.
  Dartmouth has done a study and told us the three cities in the United 
States where you get the best health care. They are Seattle, WA; 
Rochester, MN; and Salt Lake City, UT. I take some pride in that fact. 
And then the Dartmouth study goes on to say that if every American got 
his or her health care in Salt Lake City, UT, it would not only be the 
best in the United States, it would be one-third cheaper than the 
national average.
  Those are the kinds of examples we should be focusing on and learning 
from, and then doing our best to write legislation that would support 
that. Slow down. We are not going to understand this in time for any 
artificial deadline set for some political agenda. I understand the 
sense of urgency that the Obama administration feels on this issue, and 
I share the idea that now is the time to address it. This is the 
Congress in which we should pass it. But I don't think setting a 
deadline to say it must be done in July, when we are talking about 18 
percent of GDP, is that persuasive.
  We can examine these alternatives a little more carefully than the 
present deadline will allow us to do. We can say: All right, why is 
quality the best cost control, and does our bill create the kinds of 
incentives and rewards focused on quality that will produce that 
result, instead of saying: Whatever else you do, you have to have a 
government option in there. You have to have a government plan that can 
compete with all the rest of this, and thus set us up for the kind of 
situation where we would move as a nation to imitate Great Britain or 
Canada or the others that have produced the kinds of examples I have 
talked about here.
  So I am more than willing and I am anxious to work with President 
Obama and his administration, to work with my friends across the aisle. 
I have worked with Senator Wyden for these past 3-plus years to try to 
fashion an intelligent solution. But I repeat what I said at the 
beginning: The sticking point in this entire debate is the demand on 
the part of the Obama administration that the final product have within 
it a government plan as one of the options. And if that happens, I vote 
against my own bill. If that happens, I do everything I can to say no. 
Because I am convinced if that happens, we end up with a situation 
where there is only one option that survives.
  One of my colleagues has described this, I think, quite well. He 
says: Having a government plan as one of the options is a little like 
taking an elephant into a room full of mice and then saying: All right, 
this is a roomful of animals, let's let them compete. And as the 
elephant walks around the room, pretty soon there aren't any mice left. 
A government plan is the elephant in the room.
  Those of us who want to solve this problem intelligently say: Let's 
learn from the examples of those people who have adopted a single-payer 
system. Let us realize that the American experiment in health care 
produces better outcomes in all of the areas I have outlined. And as 
politicians, let's realize that the American voter will never stand for 
the kind of rationing by delay that seems to have crept into every 
other system. Let's take our time to do it right. There is a bipartisan 
consensus to get it done. We can work together and make that 
accomplishment, if we are not quite so insistent that the government 
plan ultimately is the only way to go.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The 30 hours postcloture under rule XXII has expired. The question is 
on agreeing to the motion to proceed to H.R. 1256.
  The motion was agreed to.

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