[Congressional Record (Bound Edition), Volume 161 (2015), Part 12]
[Senate]
[Pages 16713-16716]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           REGULATING TOBACCO

  Mr. MERKLEY. Mr. President, I rise today to speak about an issue that 
affects the health of our children in every single State.
  I ask unanimous consent that after I have completed my remarks, 
Senator Blumenthal, Senator Markey, Senator Boxer, and Senator Warren 
be afforded the opportunity to continue to address the same topic.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MERKLEY. I also invite my colleagues to jump in at any point to 
exchange views as well.
  This issue is one that we have known about for a very long period of 
time, which is that tobacco addiction destroys lives. I grew up in a 
family where my mother didn't smoke and my father didn't smoke, but 
they both came from large families--many brothers and sisters--and it 
seemed as though every single year when I was young, one of my aunts or 
one of my uncles died from smoking. They died from cancer. They died 
from heart disease. They died from emphysema. This carnage was all too 
apparent.
  Anyone who has taken the slightest look at this issue knows that the 
statistics are just unbelievable, the number of deaths and illnesses 
caused, the number of years lost, the degradation of the quality of 
life of individuals. For this reason, it had long been a topic here in 
the Senate that nicotine--the primary acting element in tobacco--should 
be considered a drug. It is a drug. It has all of these impacts. We 
have a Food and Drug Administration, and the Food and Drug 
Administration should be able to regulate it for the health and welfare 
of our Nation.
  Back in 2009, we debated just such a law here on the floor of the 
Senate and across the way in the House, and that law was adopted. So we 
anticipated that in short order regulations would be issued and they 
would help address particularly the effort of tobacco companies to 
produce new products designed to essentially produce nicotine tobacco 
addicts among our children, to entice our children into smoking or 
chewing and this whole new variety, this continuum of products.
  Here we are years later. It is no longer 2009; it is 2015--6 years 
later and we have no regulation. During that time, a great deal has 
happened. Many new products have been introduced in the never-ending 
quest of the tobacco companies to find what they call replacement 
smokers; that is, young folks who will continue to buy their products 
as their current customers die because they use their products.
  So 6 years have passed and no action out of the administration. Year 
after year, we have pushed, we have called as Senators, we have talked 
about it on the floor, we have held meetings with the key officials, 
and it has always been: We are almost there. We are working on it. We 
know how important it is.
  But while this process has gone along so slowly, millions more of our 
children have become addicted to tobacco.
  One of the main instruments the tobacco industry is using are flavors 
designed to target children. We can see here on the chart particularly 
flavors in the e-cigarette category. We have a whole variety. We have 
coffee. We have cherry. We have apple. We have cherry bomb flavoring. I 
was told today on the phone that there is a Captain Kangaroo flavor and 
there is a Scooby Doo flavor. There is a gummy bear flavor. These 
flavors are not designed to entice adults into becoming smokers because 
the industry knows that very rarely does an individual start to use 
tobacco products after the age of 21. It is the youth who experiment, 
and then the nicotine, as an addictive drug, does its work and turns 
them into lifetime users. That is where, of course, the money is.
  I was asked in an interview today how it is that the tobacco 
companies say these products are not targeted to children. I responded 
very simply. It is the big lie. No one, no individual can look at the 
flavors of these products and not know they are targeting our children.
  So what has happened in the last few years is the e-cigarette 
industry is the most successful of the products that tobacco companies 
have tested. In fact, in just the last year alone, use by our high 
school students has tripled. That means we now have 2 million high 
school--the survey was the previous 30 days, and in the previous 30 
days, 2 million of our high school students had utilized e-cigarettes. 
So the tobacco campaign is working, which means they are hard at work 
compromising the health and welfare of our children and leading them 
down a path to suffering and death. That is unacceptable.
  So we are here today--a number of us--to simply say to our own 
administration, our executive branch: Get the regulations done. They 
have now been forwarded from the Food and Drug Administration, from the 
FDA, to the Office of Management and Budget, which does the final 
review of those regulations. Get the regulations done, and make sure 
they are strong regulations. Do not put in a clause that grandfathers 
all the products and exempts them from regulations that have been 
produced up until now. Such a grandfather clause would tear the heart 
out, tear the guts out of the entire effort to regulate these killer 
products. And certainly regulate the flavors. That is the key, core 
strategy of addicting our children. Do not ignore that key, core 
strategy.
  This is something very real that this body debated and decided to do 
and turn it over to the executive branch. It is way past time for the 
executive branch to act. So we are asking for quick and powerful, 
forceful action to stop the carnage that is ensuing from the failure of 
these regulations.
  Several colleagues are coming to the floor to join this conversation. 
The Senator from Connecticut, Mr. Blumenthal, is planning to jump in 
next, followed by Senator Markey and then Senator Warren.
  Mr. BLUMENTHAL. Mr. President, I am going to yield to Senator Markey, 
if I may, and then follow him in light of the scheduling needs that he 
may have, and then I will yield to Senator Warren. Thank you.
  

  Mr. MARKEY. Thank you, Senator Blumenthal, and Senator Merkley, thank 
you for organizing this. Thank you to Senator Warren and to everyone 
who is here.
  Mr. President, with Halloween just days away, I would like to share 
some scary facts about nicotine. Nicotine is the main ingredient in 
cigarettes and is also found in the new cigarettes, the e-cigarettes.
  Four decades of scientific research have proved the following: First, 
nicotine is addictive; second, nicotine affects brain development; 
third, nicotine combined with tobacco is responsible for claiming 
millions of lives.
  These facts are true, but for years Big Tobacco willfully, 
consistently, publicly, and falsely denied them.

[[Page 16714]]

Those lies were exposed at congressional hearings, and thanks to the 
tireless efforts of anti-smoking and public health advocates, 
traditional cigarette smoking has declined from 50 percent of all 
adults to 18 percent of all adults in the United States. How many 
millions of lives have been saved because of that?
  Big Tobacco and the e-cigarette industry are like the undead. 
Traditional cigarettes are being supplanted by e-cigarettes. Today e-
cigarette sales in the United States alone topped $1 billion, and e-
cigarette use is growing as fast as the students who are smoking them. 
The use of e-cigarettes among middle and high school students has 
skyrocketed, tripling from 2013 to 2014, accounting for upwards of 13 
percent of all high school students. That is when my father began to 
smoke two packs of Camels a day. My father died from smoking two packs 
of Camels a day.
  Nearly 2.5 million young Americans currently use e-cigarettes. Why 
the explosion in youth e-cigarette smoking? It is because Big Tobacco 
and the e-cigarette industry are marketing their dangerous nicotine 
delivery product to children and teens.
  Big Tobacco would have our young people think that e-cigarettes are a 
treat, but they are a cruel trick on those children. The younger a 
person is when he or she starts using products containing nicotine, the 
more difficult it is to quit.
  We know from years of research that flavors attract young people. 
That is why Congress explicitly banned cigarettes with flavors like 
cherry and bubble gum, because of their appeal to young people. So it 
is very disappointing, but not surprising, that new nicotine delivery 
products are available in a myriad of flavors, from cotton candy to 
vanilla cupcake to Coca-Cola.
  I wonder what this industry is trying to do. Flavors were outlawed 
from the traditional cigarette industry. You don't have to be a 
detective to figure it out because over the past decade we have made 
great strides in educating children and teens about the dangers of 
smoking, and now we can't allow e-cigarettes to snuff out the progress 
we have made in preventing nicotine addiction and its deadly 
consequences.
  We need to ban the marketing of e-cigarettes to kids and teens. We 
need to ban the use of fruit and candy flavoring clearly meant to 
attract children. We need to ban the online sales of e-cigarettes to 
keep them out of the hands of children. The dangers of e-cigarettes are 
clear. Every day we wait is another day that young Americans can fall 
prey to harmful products pushed by the tobacco industry.
  Last year at a commerce committee hearing, when I asked several e-
cigarette company leaders to commit to ceasing the sale of these types 
of flavored products, a few agreed, but the vast majority have not and 
will not. Just today the e-cigarette industry trade group, the Tobacco 
Vapor Electronic Cigarette Association, threatened the FDA after 
posting on its Web site what the association purports is leaked draft 
industry guidance under the new deeming rule, tweeting: ``The FDA needs 
to know we mean business.''
  The association got it partially right. The e-cigarette industry 
should be put out of business.
  My father smoked two packs of Camels a day. Back then it was a cool 
thing to do. For decades Big Tobacco denied that there was any linkage 
between smoking and cancer. My father died because of that denial of 
the tobacco industry and the cooperation of the U.S. Congress.
  Today electronic cigarettes are no better than the Joe Camels of the 
past. Through e-cigarettes, children and teens are still getting 
addicted to nicotine and putting their health and futures at grave 
risk.
  I urge OMB to give America's youth a real Halloween treat by 
finalizing the deeming rule and stopping the sale of these candy-
flavored poisons.
  Thank you, and I yield back.
  Mr. BLUMENTHAL. Mr. President, I want to thank my colleagues for 
their very powerful comments, and I have a poster as well. In the 
spirit of Halloween, mine uses candy. I doubt that children this 
Halloween are going to receive some of these products--I hope not--when 
they go door-to-door, but people looking at this poster could easily 
mistake the candy for the candy-flavored cigarillos or the candy that 
looks like cigarettes, appears to be tobacco products, or the spit 
tobacco that is flavored with candy look-alikes.
  Today the temptation is to have some fun, use some puns, but I come 
here in sadness and frankly in anger--sadness that every day thousands 
of people will become addicted to nicotine and suffer from diseases 
that tobacco causes, whether it is cancer or smoking-related lung 
problems, and also tobacco-related problems that can increase the cost 
as well as the suffering in our Nation.
  We are dealing here with indefensible delays in issuing a rule that 
is necessary to enforce the law. Let me be clear about what is 
happening. The Tobacco Control Act was passed 6 years ago. All of us 
thought the provisions of that Federal law would go into effect to 
protect Americans against the nicotine addiction that is peddled 
relentlessly and tirelessly by the tobacco industry. We are 6 years 
later in an administration that is probably the most pro-public health 
and anti-tobacco abuse of any in our history, and still, 6 years later 
that law is unenforced, and the reason is there are no regulations.
  We are 18 months after the FDA released the rule called the deeming 
rule necessary to enforce that law. Eighteen months have passed since 
the FDA acted, 6 years since the law was passed in this body, and still 
there is no protection for Americans.
  This fight goes back years and years, and I was involved as attorney 
general for the State of Connecticut in helping bring a landmark 
lawsuit. I helped to lead that lawsuit as one of the States that sued 
the tobacco companies for marketing to children.
  Back then this poster might have been used in court, and I appeared 
in court to say that the tobacco companies, despite their denials, were 
marketing and pitching to children by using Joe Camel. Today the 
playbook is exactly the same. The tactics have changed, but the 
strategy is the same: using pitches, wrappings, and flavors to target 
children--not teenagers or college kids--but younger children who are 
persuaded by the model of their older siblings and friends to begin a 
lifetime of addiction and disease.
  They may be fooled by the candy flavors and the wrappings and the 
pitches that are used, but we should not be, the FDA should not be, and 
the Office of Management and Budget should not be fooled. They should 
not be waiting to issue this rule. It should be issued now.
  We have written to them, asking that the rule be issued. A number of 
us wrote a letter to Shaun Donovan. I very simply asked the President 
of the United States for no more delays. Do the rule now. There is no 
excuse for delay and, by the way, time is not on our side. During every 
year of delay, thousands more children become addicted, and the 
President of the United States knows about that addiction because he is 
a former smoker--hopefully it is former, not present--and he knows the 
power of nicotine because he has worked hard to overcome it.
  Let's prevent young people from becoming addicted in the first place. 
Let's save money and save lives. Please, Mr. President of the United 
States, issue this rule.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Ms. WARREN. Thank you, Mr. President.
  I would like to thank Senator Merkley for organizing this event this 
afternoon and Senators Blumenthal and Markey for their work on this.
  Smoking produces corporate profits, period. There is the heart of the 
problem of e-cigarettes. Long after the science showed that cigarette 
smoking kills, long after the industry denied and denied, long after 
millions of people died from smoking-related cancers and heart disease, 
this country finally got serious about cutting smoking rates.
  Much of our attention has been focused on ways to keep the industry 
from hooking young people, and it is a

[[Page 16715]]

good approach: If you don't start, you don't have to quit. For decades 
now public health experts have worked to reduce smoking and to keep 
kids and teens from becoming addicted to cigarettes. Congress passed 
the laws and implemented regulations that restricted access for teens. 
We increased tobacco taxes, and we clamped down on marketing to kids. 
State and local governments along with the private sector limited 
smoking in public. Those combined efforts worked. Since the late 1990s, 
the youth smoking rate has been cut by more than 50 percent.
  The most recent effort in Congress to address this issue was the 
passage of the Family Smoking Prevention and Tobacco Control Act of 
2009. The late Senator Ted Kennedy fought for years and years to give 
the FDA authority to regulate the manufacture, distribution, and 
marketing of tobacco. I stand at his desk today to continue this fight 
because the law was passed but our Federal agencies have still not 
fully implemented it, and the tobacco industry continues to target 
young people.
  The industry profits from getting kids hooked early, so it finds 
every way it can to undermine all the other work we have done to keep 
kids from getting hooked on nicotine. Because it is harder now to get 
kids hooked with cigarettes, the industry has turned to e-cigarettes.
  Six years after the Tobacco Control Act was passed, the regulations 
that deem e-cigarettes as tobacco products and make them subject to all 
of the rules in that bill have still not been finalized. As a result, 
e-cigarettes remain virtually unregulated at the Federal level--no age 
limits, no marketing restrictions, nothing but a splotchy patchwork of 
State and local restrictions. Even though most states ban the sale of 
e-cigarettes to minors, this is not enough to combat the deliberate and 
well-financed work of the tobacco industry to hook another generation 
of kids on their products.
  Now, an investigation last year by House and Senate leaders revealed 
how the tobacco industry is marketing their products to kids. It found 
that the industry is following the exact same practices of marketing to 
kids and teens that addicted a generation to cigarettes decades ago. 
Tobacco companies market e-cigs with cartoons and Santa Claus. They 
show popular celebrities and beautiful models using e-cigs.
  Tobacco companies push e-cigs in flavors designed to appeal to kids--
flavors like cherry crush and chocolate treat. Tobacco companies 
provide free samples at concerts and other youth-oriented events. 
Tobacco companies advertise on television shows and radio programs that 
attract large audiences of teens and preteens. To bring it all into the 
digital age, tobacco companies use all of these tactics online and on 
social media.
  The tobacco industry has done all of this before. It is having the 
same result. According to the CDC, e-cigarette use by middle 
schoolers--that is sixth, seventh, and eighth graders--and high school 
students tripled in 2014 alone. New data released yesterday shows that 
21.6 percent of young adults 18 to 24 have used an e-cigarette.
  For teens, e-cig use is now greater than the use of all other tobacco 
products. Look, the tobacco industry is up to its old tricks, but we 
are not going to fall for them again. After more than 6 years since the 
passage of the Tobacco Control Act, the Federal Government is finally 
on the cusp of regulations to rein in the industry's e-cigarette 
marketing efforts. Every day that goes by without this regulation, the 
tobacco industry hooks more kids.
  We need a strong rule today, and that is why I join my colleagues to 
urge the Office of Management and Budget to act without delay and to 
release this important regulation. It is time--no, it is past time to 
take action, time to push back against the tobacco industry, time to 
stand up for our families' health.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Lee). The Senator from Oregon.
  Mr. MERKLEY. Mr. President, I would like very much to thank my 
colleagues for coming to the floor and speaking to this issue, my 
colleagues from Connecticut, Senator Blumenthal; from Massachusetts, 
Senator Markey; and Senator Warren, also from Massachusetts.
  I must say that this topic of addiction to tobacco and tobacco 
products being targeted at our children is not one that is only 
relevant to one State or this State or that State, it affects children 
in rural America, in urban America, and in every State and corner of 
our Nation. So there is basically a universal impact. That is probably 
part of the reason the Senate came together, during a period in which 
there has been substantial dysfunction and substantial paralysis, and 
said, no, it is time to regulate these tobacco products as the drugs 
that they are, but during the 6 years since the bill was passed, we 
have had no regulation. So I appreciate my colleagues coming to the 
floor and trying to amplify the message that this is unacceptable, 
because children will be addicted, they will develop diseases, they 
will suffer, and they will die because of the inaction in putting the 
regulations forward.
  This is completely unacceptable. During this time, there have been a 
lot of experimental products put out by the tobacco industry. They have 
put out finely ground tobacco in the form of mints. They put them into 
hour glass-shaped candy holders so that when students would put them in 
our pockets, it would look like a cell phone.
  That may not make sense in this age of smartphones, but just a few 
years ago, in 2009, when this was being test-marketed in my State of 
Oregon and test-marketed in Ohio, the shape of the most popular 
cellphones kind of had a little bit of an hourglass shape to it. So the 
idea was it would look like a cellphone and not like tobacco when you 
were in school.
  They came out with a product of toothpicks made out of finely ground 
tobacco. They came out with a product of breath strips that you put on 
your tongue. Can you imagine tobacco to freshen your breath? They were 
experimenting with everything, but the payday was not toothpicks, it 
was not mints, and it was not breath strips; the payday product is e-
cigarettes.
  I am going to put the chart back up about the e-cigarettes. There are 
two fundamental myths propagated by the tobacco industry. The first is 
that they are not marketing to youth. Well, let's examine the type of 
flavors in these products. We have apple--these are just the ones on 
this chart. We have cotton candy. We have gummy bear. We have 
watermelon. We have candy crave. We have Red Bull. We have peach.
  These candy and fruit flavors are designed to appeal to children and 
to mask some of the nastiness of smoking. Well, so that is big lie No. 
1 from the tobacco industry, that they are not targeting our children. 
It is absolutely clear they are.
  Furthermore, they have to because they know that replacement 
smokers--getting new smokers to replace those who are dying because of 
their products requires targeting children because very few people 
start smoking when they are adults or start using tobacco products when 
they are adults. The mind of the teenager is the perfect moment to gain 
traction and produce addiction. That is why the tobacco companies are 
targeting our children.
  The second myth they put forward is that e-cigarettes are simply a 
wonderful health aid designed to get people to quit smoking. Maybe it 
is healthier than a cigarette with a tobacco leaf ground up inside of 
it or a clear liquid nicotine rather than a cigarette or a cigar. Do 
not believe for a moment that tobacco companies are trying to help 
individuals stop smoking. They did not do billions of dollars in 
commerce by getting people to stop smoking. Everything about targeting 
kids is not about getting individuals to stop smoking but to start 
smoking. That is the goal, to start smoking, to lead them into a life 
in which they will spend an enormous amount of money buying a product 
that is destroying their body.
  Eventually they will suffer. Eventually they will die. It will be a 
heart attack. It will be lung cancer. It will be a whole host of--
emphysema. OK. Maybe not every single individual, but

[[Page 16716]]

a huge number of folks who become addicted in their youth will suffer 
substantial health consequences. Even those who don't have cancer or 
full-blown emphysema will experience other health impacts that make 
them
a less healthy individual and compromise their quality of life.
  Again, I thank my colleagues so much for coming to the floor to 
accentuate this message that we have waited far too long for the 
regulations to get done to take on this industry and that we are 
demanding that when the regulation is published--and hopefully that 
will be very soon, as in days or weeks--that will be a regulation that 
is written in a forceful, comprehensive fashion, that will not have a 
grandfather clause that excludes existing products from regulation, and 
it will not fail to address this powerful instrument being used to 
target our children, which are fruit and candy flavors.
  We ask, now that the Food and Drug Administration has forwarded this 
decision to the Office of Management and Budget for final 
decisionmaking, that OMB come out quickly, forcefully, and strongly to 
address this tremendous blight on our society.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.

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