[Congressional Record (Bound Edition), Volume 155 (2009), Part 10]
[Senate]
[Pages 13908-13910]
[From the U.S. Government Publishing Office, www.gpo.gov]




           FAMILY SMOKING PREVENTION AND TOBACCO CONTROL ACT

  Mr. DODD. Madam President, I wish to take a few minutes to speak 
about the importance of what we are doing to address the issues raised 
by my friend and colleague from North Carolina, Senator Burr, who has 
raised some important issues. We are debating, of course, very historic 
public health legislation. The bill before this body will, for the 
first time, give the Food and Drug Administration authority to regulate 
the tobacco industry and to put in place tough protections for families 
that for too long have been absent, when it comes to how cigarettes are 
marketed to children.
  As I have said, particularly over the last couple days, I don't think 
we can afford to wait any longer on this issue. As I think all 
colleagues are aware, every single day we delay action on this 
legislation, another 3,500 to 4,000 children across the Nation are 
ensnared by tobacco companies that target them with impunity as they 
try smoking for the very first time in their lives, 3,500 to 4,000 
every single day. Smoking kills more Americans every year than alcohol 
abuse, AIDS, car accidents, illegal drug use, murders, and suicides 
combined. As tragic as all deaths are, particularly ones caused by the 
circumstances I have raised, if we took all of them together, they do 
not total the 400,000 people who lose their lives every year as a 
result of tobacco-related illnesses. Absent action by this Congress, 
more than 6 million children who are alive today will die from smoking, 
including the 76,000 or so in my home State of Connecticut.
  The Congressional Budget Office has estimated that the bill before us 
would reduce adult smoking by 900,000 Americans. That is not an 
insignificant number. It represents about 2 percent. The CBO estimates 
that over the next 10 years, 2 million children will not take up 
smoking, if we are able to pass this legislation and have an effect on 
the marketing of these products to kids. That is 11 percent of children 
across the country. That is 700,000 people we would be able to have an 
influence on, convincing them not to take that first cigarette, to 
begin the habit of smoking.
  Unfortunately, flaws in the Burr substitute will not achieve those 
goals. It would result in much less regulation of tobacco products, 
allow the tobacco industry to play many more games and hide more of the 
harm their products cause and leave children and others more vulnerable 
to the scourge of tobacco. Instead of using the FDA, a proven agency of 
100 years, with experience in regulatory, scientific, and health care 
responsibilities, to carry out the purpose of this bipartisan bill, the 
Burr substitute creates a flawed agency, with inadequate resources, and 
limits the authority of that agency to take meaningful action to 
curtail the harm caused by tobacco products and their marketing.
  The Institute of Medicine, which is highly respected by all of us, 
and the President's cancer panel have both endorsed giving the FDA this 
critical authority. The Food and Drug Administration has 100 years of 
experience in regulating almost every product we consume in order to 
protect public health. A new agency is not the answer. Obviously, one 
more bureaucracy is hardly the direction we ought to be going. Our 
bipartisan bill provides adequate funding to effectively regulate 
tobacco products through a user fee paid by the tobacco industry.
  The Burr substitute does not provide adequate resources to get the 
job done either. In the first 3 years, the Burr substitute provides 
just a quarter of the funding provided in the Kennedy proposal, which 
has been with us for the last 7 or 8 years and has been endorsed by 
1,000 organizations, faith-based organization, State-based 
organizations, and virtually every major public health advocacy group 
in the United States.
  Our bipartisan bill gives the FDA strong authority to regulate the 
content of both existing and new tobacco products, including both 
cigarettes and smokeless tobacco products. The Burr substitute gives 
the new agency no authority whatsoever over the content of smokeless 
tobacco products, no matter how much nicotine and no matter how many 
cancer-causing agents are in those products. The National Cancer 
Institute, the American Cancer Society, the U.S. Surgeon General, and 
the Public Health Service have all concluded that smokeless tobacco 
products, as sold in the United States, are a cause of serious disease, 
including cancer.
  This is not a partisan analysis. When the Surgeon General, the 
National Cancer Institute, the American Cancer Society, as well as the 
Public Health Service, says these products cause cancer and can kill, 
that is not an ideological conclusion. That is the scientific opinion 
of the very agencies and organizations we rely on for this information. 
They are saying, if one uses those products, they could get cancer and 
could die. Suggesting we ought to have an agency with no power to 
regulate those products takes us in exactly the wrong direction, given 
the growing use of smokeless tobacco products. They should be subject 
to regulation like other tobacco products. This amendment would allow 
smokeless tobacco manufacturers to make their products as harmful as 
they may want with no regard for public health.
  The Food and Drug Administration regulates the food our pets consume. 
Products consumed by dogs and cats are regulated by the FDA. The idea 
that we would have an agency with the power to regulate not only the 
food we consume and the cosmetics and all variety of pharmaceuticals 
and so forth that we ingest, excluding tobacco, that we would also give 
them the power to regulate products our pets consume, but we wouldn't 
allow them to regulate smokeless tobacco or cigarettes runs counter to 
common sense in this day and age. This is the 21st century, and 400,000 
people die every year from self-inflicted injury as a result of the use 
of these products. As well, 3,500 children begin smoking every single 
day. To say we can't use this Agency, which has the power and ability 
to regulate, do research, as well as engage in public health, flies in 
the face of logic. The idea that our pets at home have better 
protection than our children when it comes to tobacco products makes no 
sense to anyone I know.
  The Burr substitute gives the Agency far less authority to remove 
harmful constituents in cigarettes than our bipartisan bill does, and 
it will make it far more difficult for the Agency to act.
  I mentioned before I was a smoker. I am grateful that most of my 
colleagues were not. But having been one, I can tell them, it is hard 
to quit. People struggle every day to quit, and it is hard. I don't 
have any polling data, but I would bet that if we asked every parent 
who smokes--my parents did, my father smoked cigars and pipes; my 
mother smoked Chesterfields for about 20 years before she died of 
cardiovascular issues that may have been related to smoking--whether 
they would like their children to begin smoking or using smokeless 
tobacco products, I will guarantee that number is off the charts. They 
don't want their children to start this.
  The Presiding Officer comes from a State of 12,000 small tobacco 
farmers in North Carolina. I haven't said this before, and I should 
have--and I apologize for not saying it--this is not the fault of the 
tobacco farmer. They are in business. They grow a crop. I don't know 
enough about the science of this, but I suspect the leaf itself is not 
the issue. It is the 15 carcinogens that are included. When we light up 
a cigarette, it isn't just the tobacco leaf that comes from North 
Carolina that is rolled into a piece of paper. There are 50 other 
ingredients, particularly ones designed specifically to create the 
addiction associated with cigarettes.
  The last thing I wish to see is a farmer in North Carolina, whose 
economic well-being could be adversely affected by a decision we make, 
be harmed. We can help them. I know we try to do that in this bill, and 
I will be anxious to hear from my colleague from North

[[Page 13909]]

Carolina with the adoption of this legislation--not that I expect her 
to support it--what we can do to help these people. I suspect many of 
them, if asked the question: Would you like your children to begin 
smoking, would likely give the same answer. So that farmer out there 
would need some help, and we ought to provide it.
  Our bill allows the Food and Drug Administration to take into account 
the impact of product changes on potential users, particularly 
children, and former smokers. The Burr substitute only allows the 
Agency to consider the narrow health impact on existing smokers. Our 
bipartisan bill allows the Food and Drug Administration to reduce or 
fully eliminate substances that may be harmful using the best available 
scientific evidence. The Burr substitute requires the Agency to 
demonstrate that a single product change is likely to result in 
``measurable and substantial reductions in morbidity,'' knowing that 
this standard would be extraordinarily difficult to meet, given the 
large number of harmful substances in cigarettes.
  Our bill bans candy- and fruit-flavored cigarettes. I hope my 
colleagues don't need me to explain why there are candy- and fruit-
flavored cigarettes. That is not to convince a 55-year-old they ought 
to start smoking. When they decide to make cigarettes taste like candy, 
tell me who the audience is. If you think it is some adult, then we are 
living on different planets because that is designed specifically to 
get the kids. We know 90 percent of adults who smoke began as kids. 
Those are the statistics. Our bill bans candy- and fruit-flavored 
cigarettes. The Burr substitute only bans the use of candy and fruit 
names on products--leaving tobacco manufacturers to market cigarettes 
that taste like mocha mint or strawberry.
  The Burr substitute prevents the Agency from requiring the 
manufacturer to make any product change that the manufacturer elects to 
implement by requiring changes in how tobacco is cured or might 
otherwise impact the tobacco leaf. This would always be used by the 
manufacturers to challenge the product standard. For example, a new 
study found that the high level of tobacco-specific nitrosamines in 
tobacco products has probably resulted in twice as many people dying 
from lung cancer. Under the Burr standard, it is highly unlikely, we 
are told, that the Agency would take action to address this issue 
because the simplest solution is to change how some tobacco is cured 
after it is grown. The Burr substitute allows tobacco companies to 
continue to deceive consumers in that regard.
  The Burr substitute also bases its tar and nicotine standards on the 
results of a specific test that the Federal Trade Commission recently 
rejected because it does not provide meaningful information about the 
health risks of different cigarettes. In its statement discrediting the 
test, the Federal Trade Commission wrote:

       Our action today ensures that tobacco companies may not 
     wrap their misleading tar and nicotine ratings in a cloak of 
     government sponsorship. Simply put, the FTC will not be a 
     smokescreen for the tobacco companies' shameful marketing 
     practices.

  That is from the Federal Trade Commission, hardly an ideological or 
partisan organization. That is their quote on discrediting the test the 
FTC conducted.
  In addition, the National Cancer Institute has determined there is no 
evidence that reducing tar to a degree even greater than called for in 
the Burr substitute actually results in a reduction of risk of disease. 
The Burr substitute makes it likely that Americans will continue to be 
misled by nicotine and tar figures that appear to have the government 
stamp of approval, believing that cigarettes with lower tar numbers are 
safer. The National Cancer Institute is an organization that is highly 
credible and respected. The Burr substitute does not adequately protect 
consumers from misleading health claims about tobacco products, a very 
serious problem. The bipartisan bill sets stringent, but reasonable, 
scientific standards before manufacturers of cigarettes and smokeless 
tobacco products are allowed to claim that their products are safer or 
reduce the risk of disease.
  The Burr substitute completely exempts smokeless tobacco products 
from these standards, no matter how spurious and even if those claims 
are likely to cause youth to take up tobacco for the first time. 
Supporters of this proposal argue we should allow and encourage the use 
of smokeless tobacco because it is less harmful than smoking. But this 
was refuted in 2003 by Surgeon General Richard Carmona, who was 
appointed by President Bush, when he addressed a congressional 
committee.
  Let me quote the Surgeon General:

       Do not fall for the myth--a very dangerous public health 
     myth--that smokeless tobacco is preferable to smoking.

  Again, this is the Surgeon General. Going back several 
administrations, Surgeons General, Secretaries of Health and Human 
Services, this is an issue that does not divide people. President 
Bush's Surgeon General was a fine man, Richard Carmona. I see my friend 
from Arizona. I believe Richard Carmona is from Arizona. I had an 
opportunity to meet with him and talk with him in the past, and he did 
a good job.
  I will quote him again:

       Do not fall for the myth--a very dangerous public health 
     myth--that smokeless tobacco is preferable to smoking.

  He went on to say, and I quote him further:

       No matter what you may hear today or read in press reports 
     later, I cannot conclude [as Surgeon General] that the use of 
     any tobacco product is a safer alternative to smoking.

  And the 2008 Update of the U.S. Public Health Service Clinical 
Practice Guidelines regarding tobacco cessation concluded:

       [T]he use of smokeless tobacco products is not a safe 
     alternative to smoking, nor is there evidence to suggest that 
     it is effective in helping smokers quit.

  Senator Burr's substitute only allows the agency to look at the 
health impact on individual users of tobacco products. It does not 
consider whether the reduced risk claim would increase overall public 
health harms by increasing the number of youth who begin using tobacco 
products or reducing the number of current users who quit. Senator 
Burr's and our colleague Senator Hagan's standard would allow health 
claims that would increase tobacco use levels and increase the total 
amount of harm thus caused by tobacco use.
  To prevent health claims from being used to increase the number of 
tobacco users, our bipartisan bill gives the Food and Drug 
Administration authority over how these products are marketed. Senator 
Burr's substitute eliminates that authority, putting our youth at 
greater risk. If you eliminate that authority, then, obviously, you 
have torn the heart out of what we are trying to achieve.
  Senator Burr's substitute fails to give even the new agency it 
creates the authority to reduce youth access to tobacco products. 
Unlike our legislation, Senator Burr's substitute does not establish or 
fund a nationwide program to reduce illegal tobacco product sales to 
children. In addition, because the Burr substitute allows any retailer 
to fully escape responsibility for illegal sales if the employer's 
employees have signed a form saying they were informed that it is 
illegal to sell to underage youth, no matter how often the retail 
outlet is caught doing so, and no matter how strong the evidence that 
the employer looks the other way, it provides a significantly less 
effective approach than the one we have in the substitute, the 
bipartisan substitute that is before us.
  The Burr substitute's minimum standards for State youth access laws 
are also too weak. The youth access standards in Senator Burr's 
substitute are riddled with loopholes that make them ineffective. For 
example, a retailer who never enforces the law against illegal sales to 
youth cannot be fined if the retailer has conducted a training program 
for its staff, even if it repeatedly looks the other way when illegal 
sales to youth are made. In addition, the vast majority of States 
already have laws in place that exceed the minimum standards in Senator 
Burr's substitute.

[[Page 13910]]

  At any rate, these are all reasons why I urge my colleagues to reject 
the Burr substitute. Our bipartisan bill, as I say, has been endorsed--
I have been here for some time. I have never heard of a piece of 
legislation being endorsed by 1,000 organizations: faith-based, State, 
as well as all the credible national public health or health 
organizations in the country. That is not reason enough, but understand 
we voted overwhelmingly in both Chambers, just not in the same 
Congress, over the last 6 or 7 years on this proposal.
  Again, I want to say to my colleagues who come from tobacco-producing 
States, I understand the impact this kind of bill can have, and, in 
fact, we hope it has, with the reduction of smoking by all generations 
and all age groups, but particularly among children. I certainly stand 
ready and prepared to do what we can to help those farmers and others 
whose jobs and livelihoods depend on this industry, who, through no 
fault of their own but through their livelihoods, are engaged in this 
business. We want to provide that transitional help.
  But we cannot stop doing what needs to be done. With 400,000 people a 
year dying--more deaths due to this self-inflicted disease than AIDS, 
murders, illegal drugs, suicides, alcohol abuse, automobile accidents--
all of those combined--they do not equal the number that tobacco use 
causes. With 3,000 to 4,000 kids starting every day, I think my 
colleagues understand this cries out.
  We are about to begin a health care debate. Prevention is a major 
issue. We are all trying to work on ideas to incentivize healthy living 
styles. What an irony it would be, on the eve of the emerging debate 
about prevention, that we had an opportunity to make a difference in 
doing just that, with having 900,000 adults who stopped smoking and 
700,000 kids--maybe those are numbers that are not as impressive as we 
would like them to be--but if we can save 700,000 children's lives and 
900,000 adults, to have them stop smoking and not get involved in this 
habit, what a difference it would make.
  I have talked about deaths. There are people who live with this 
stuff--the emphysema. The cost--even if you are not impressed with the 
ethics of it, the morality of it, if the numbers is the only thing that 
drives you, we are spending billions of dollars every year to provide 
for people who are suffering from smoke-related illnesses.
  So on the eve of the great health care debate, what a great way to 
begin that by saying, at least in this one area, we are going to do 
something about the children in this country. We are going to do 
something that is long overdue on the manufacturing and the marketing, 
as well as in the production of these products. We are going to say to 
the Food and Drug Administration: Take over here. Take a look at all of 
this. Provide the regulations and the guidelines. If we can do it for 
the produce or the foodstuffs we provide for every pet in this country, 
we ought to be able do it for the American children.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from 
Arizona is recognized.

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