Anti-Tobacco Legislation in Congress

By Matt Crawford

The following is an essay I wrote for a political science class a few weeks ago, which expands on the anti-tobacco legislation currently in Congress that I mentioned in my opionion article in today’s edition of The Villanova Times.

Tobacco-related diseases kill more than 434,000 people annually and cost the nation approximately $96 billion in health care costs (Carroll, 2009). It is estimated by the Center for Disease Control and Prevention that 21 percent of U.S. citizens smoke totaling more than 45 million people. However, cigarettes and other tobacco products are still subject to less government regulation than food, drugs, cosmetics and even dog food. Over the past decade, legislation has been proposed that would fix that sad reality. In the final two years of the Bush Administration, bills were proposed that would have placed the tobacco industry under the watchful eye of a governmental agency, namely the FDA, but none ever became law. H.R. 1108, which passed in the House in 2008, would have given tobacco regulation powers to the Food and Drug Administration. The bill died in the Senate. Now, H.R. 1256, virtually the same bill as H.R. 1108 with a few more anti-tobacco measures, has passed the House by a vote of 298-112.

I am a lobbyist with the Campaign for Tobacco-Free Kids. Since H.R 1256 would impose regulation on tobacco, as well as prohibiting flavored cigarettes, other than menthol, our organization is encouraged by it. The bill, titled “The Family Smoking Prevention and Tobacco Control Act” would allow the FDA to eliminate any misleading or youth-focused advertising and labeling. “The agency would be able to regulate the contents of tobacco products, make their ingredients public, prohibit flavoring, require much larger warning labels and strictly control or prohibit marketing campaigns, especially those geared toward children” (Werner, 2009). Still, H.R. 1256 should be a lot tougher than it actually is. Of course, tobacco cannot be completely banned, but why not ban nicotine? Nicotine addiction is labeled as one of the toughest addictions to break. It logically follows that the removal of nicotine from cigarettes would cause a decrease in the amount of smokers. Of course, the obstacle is the strong tobacco lobby, which is one of the largest contributors to individual congressmen, and who would surely be up in arms if a bill ever proposed to ban nicotine.

Another problem with H.R. 1256 is its exemption of menthol-flavored cigarettes from its ban on flavored cigarettes. Not only does flavoring attract more smokers, especially young smokers, but menthol cigarettes are chosen by a whopping 80% of African-American teenage smokers (Saul, 2008). Upon realizing this, The National African-American Tobacco Prevention Network, which originally supported the bill, has now become one of its largest critics. This discontent and racial disproportionality can be used to our advantage to pressure Congress to produce tougher anti-tobacco legislation.

Of course, a tougher proposal would be increasingly difficult to get support for in Congress as a result of the immense contributions from the tobacco lobby as well as significant opposition from congressmen from tobacco-producing states. To enact stricter measures such as bans on menthol flavoring and nicotine, we must identify those members of Congress who would be willing to go up against the big tobacco corporations. Furthermore, we need to make sure either the current H.R. 1256 or a stricter proposal will be able to pass the Senate and not face the same grave as did H.R. 1108. Although we will continue to push for stricter measures, in the end we may need to be satisfied with H.R. 1256 as it currently stands. Our lobbyists can work towards this goal, first by identifying key members of congress and important committees as well as using the media to our advantage by utilizing advertising campaigns and demonstrations by certain anti-tobacco groups, such as the aforementioned National African-American Tobacco Prevention Network.

Although not directly involved in the legislative process, H.R. 1256 has the backing of President Obama who has himself struggled to quit smoking. The failed H.R. 1108 did not have the support of President Bush in 2008, who actually threatened to use a veto if the bill ever made it to his desk. Obama appears to be devoted to giving regulatory powers over tobacco to the FDA, something which Bush was not willing to do, for multiple reasons. Opponents have always argued that the FDA is not capable of handling such a large industry, on top of the industries it already regulates. Another reason is that Republicans have historically received much more contributions and campaign support from the tobacco industry than the Democratic Party has. Figure 2 shows this reality quite clearly, although the gap is decreasing as more Democrats are being elected in tobacco-producing states. Figure 1 shows that now, in 2009, Republicans still receive more funds from big tobacco, but now the difference is only 100,000 dollars. President Obama is not from a tobacco-producing state and thus has never been the recipient of enormous contributions, from Phillip Morris, for example; although tobacco corporations have surely donated some money to Obama in the past. Stricter anti-tobacco legislation, if it can make it through both chambers, should face little opposition from Obama, and he could perhaps use the executive office to make sure anti-tobacco legislation makes it through the Senate.

Further evidence of Obama’s support of the anti-tobacco lobby is that he recently nominated William V. Corr to the number 2 position at the Department of Health and Human Services. Mr. Corr is actually the executive director of my anti-tobacco group, The Campaign for Tobacco-Free Kids. Both Corr’s nomination and Obama’s support for H.R. 1256 are positive signs for the future of anti-tobacco legislation.

In the past, Corr has worked for Representative Henry Waxman (D-CA), who is now chairman of the House committee on Energy and Commerce and was formerly the chair of the health subcommittee. There also exist under this committee the subcommittee on Commerce, Trade and Consumer Protection and also the subcommittee on Oversight and Investigations – both which could play roles in making H.R. 1256 stricter. In the subcommittee on Health, Frank Pallone (D-NJ) is the chair and Nathan Deal (R-GA) is the ranking Republican. Deal is from the tobacco-producing state of Georgia and would not support tougher measures and actually voted against the passage of H.R. 1256. Pallone, on the other hand, was praised for his hard work and support of H.R. 1256 in a statement by Matthew Myers, the president of The Campaign for Tobacco-Free Kids. When even stricter anti-tobacco measures are pushed for, Pallone is by no doubt a U.S. representative who can be counted upon and could be resourceful based on his position as chair of the health subcommittee.

Chairman of the Committee on Energy and Commerce, Henry Waxman, sponsored both the failed H.R. 1108 and the more promising H.R. 1256. This committee is important to any anti-tobacco legislation since these bills are typically referred to that House committee first. Joe Barton (R-TX) is the ranking Republican on the committee, and voted against the bill. Even so, Waxman and other supporters in this committee did great job getting significant bipartisan support for H.R. 1256 ensuring its easy passage through the House. Because of their strong work on H.R. 1256, Waxman, Pallone and others, mainly Democrats, can possibly be successfully lobbied to push for even tougher anti-tobacco legislation in the future.

House Republicans have proposed anti-tobacco regulation proposals of their own. Representative Steven Buyer (R-IN) sponsored a bill as an alternative to H.R. 1256. Buyer’s bill, H.R. 1261, titled “The Youth Prevention and Tobacco Harm Prevention Act,” was introduced March 3rd. The alternative bill likely has no future because of the passage of H.R. 1256 by such a large margin. Buyer also proposed House Amendment 71 to Waxman’s bill the day before it was to be voted on. The amendment was to create a Tobacco Harm Reduction Center under the Department of Health and Human Services, as opposed to the FDA, to regulate all tobacco products and to establish “a regulatory scheme to provide for tobacco prevention, education, and cessation programs.” The amendment was voted on along with H.R. 1256 and failed by a vote of 142-284. Buyer, along with cosponsor Mike McIntyre (D-NC), spoke on the floor about their alternative proposal. As do most opponents of giving FDA regulation powers over tobacco, they argued that their bill would actually be tougher on tobacco and that the FDA is not equipped to handle such regulatory powers. They also charged that H.R. 1256 would unfairly put smaller tobacco corporations out of business eventually, such as Lorillard Tobacco Co, but would not affect Philip Morris for example. Lorillard Tobacco Co. said in a statement that among other problems, Waxman’s bill “leads to an industry monopoly by locking in the huge market share of our largest competitor while eliminating our ability to communicate with our adult smokers” (Werner, 2009). In McIntyre’s speech on the House floor, he claimed that “Mr. Waxman’s… provisions will put many companies and growers out of business, and we absolutely cannot afford to lose any more jobs.” A decrease the amount of people smoking, which is exactly the goal which we should all be striving for, will naturally as a consequence lose some jobs and eventually some small companies may go out of business. A decrease in the tobacco industry would be a sign that the legislation is working. Buyer’s claims in support of his bill are misleading in that his bill is by no means tougher than H.R. 1256. Waxman’s legislation would allow regulation of cigarette ingredients, labeling, advertising and place a ban on flavored cigarettes. Buyer’s legislation only proposes regulation powers to an alternate agency other than the FDA. Major public health groups, including the American Medical Association, have written to lawmakers asking them to oppose Buyer’s bill, contending it would leave tobacco companies without meaningful regulation and able to make untested claims about the health effects of their products (Werner, 2009).

            In the Senate, the situation is very similar. In 2007, Senator Ted Kennedy sponsored a bill, S.625, which would also have given the FDA regulatory powers over tobacco. S.625, which was the Senate’s counterpart to Waxman’s original H.R. 1108, was never voted upon. Kennedy is the chairman of the Senate committee on Health, Education, Labor and Pensions and will be influential in pushing H.R. 1256 through the Senate now that it has passed the House. In 2007, an alternative bill, S.1834 was proposed by Senator Mike Enzi (R-WY), similar to Buyer’s House alternative. Enzi is the ranking Republican on Kennedy’s committee, which is the most important Senate committee for the tobacco issue. Enzi criticized Waxman’s bill by writing “H.R. 1108, would, in fact, coddle Big Tobacco while protecting the industry’s best tools to recruit and addict your children to tobacco.  That’s why the nation’s largest cigarette maker – Philip Morris – helped write the bill and is one of its strongest supporters” (Enzi, 2008). Enzi further pointed out the failure to ban menthol flavoring, although it does not appear that his bill would have banned any of the flavorings. However, if Enzi truly wants H.R. 1261 to be tougher and to ban menthol flavoring, he could be a vital and important Senator in the Republican Party, especially because of his committee position.

            In response to H.R. 1256, Waxman’s bill, Senator Richard Burr (R-NC) has sponsored S.579, introduced to the Senate in early March. The bill is very similar to Buyer’s failed proposal in the House and would create an office outside the FDA to regulate tobacco. But one only needs to look at Burr’s biography to see his true motives behind this bill. Burr, who is also on the Senate Committee on Health, Education, Labor and Pensions, went to Richard J. Reynolds high school in Winston-Salem, NC. Ever hear of tobacco giant RJ Reynolds Tobacco Company? Not only did he go to the high school named after the tobacco company, but RJ Reynolds was his 2nd largest contributor during the 2006 election cycle, giving him 109,950 dollars (sourcewatch.org). Furthermore, The Winston-Salem Journal reported on March 23, 2009 that Congressman Burr had received $355,000 from tobacco interests since 1995 (second only to Mitch McConnell). Although, Burr is reportedly anti-tobacco after he quit smoking in 1998 after making a televised vow to do so, he is not to be counted on and obviously represents the large tobacco interests of North Carolina. Keep in mind that his proposal, S.579, was also supported by Senators Kay Hagan (D-NC) and Saxby Chambliss (R-GA). Olympia Snowe (R-ME) and Representative Melvin Watt (D-NC) have voiced their opposition to Burr’s proposal, and both can be counted on to support the H.R. 1256 as well as future tougher legislation. Watt can be important since even though he is a North Carolina representative, he has crossed swords with North Carolina’s tobacco lobby before. The Almanac of American Politics noted that “On one issue after another, he [Watt] has risked unpopular stands to defend principle.”

            Congressmen like Watt, who stand up to lobbyists and value principle over representing all interests, are what are necessary for the toughening of anti-tobacco legislation. H.R. 1256 will face opposition in the Senate but should succeed. For the first time since the Supreme Court ruled in 2000 that the FDA needed congressional approval to regulate tobacco an agency will finally regulate one of the unhealthiest products in the United States. However, to be completely successful and fair, menthol flavoring must be banned along with the other flavorings. Menthol attracts most young smokers and a disproportionate percentage of African-American teenage smokers. For the passage of Waxman’s H.R. 1256 and the further toughening of future legislation, advertising must be made use of and even demonstrations. Those such as North Carolina’s senators must be discredited and those aforementioned congressmen who back the bill and would not be opposed to further strengthening of anti-tobacco legislation must be lobbied heavily, especially those in the most important congressional committees. H.R. 1256 is a step in the right direction, and I am fully confident that with a little work, it will be written into law sooner rather than later.

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