Draft Statement of C. Whitley before Senate Subcommittee on Consumer Affairs. Argues that the Tobacco Product Education and Health Protection Act of 1991 (S. 1088) should be rejected. Discusses the role of advertising and the effects of advertising bans. Argues against disclosure provisions of the bill. Asserts that bill prescribes inaccurate warning labels and duplicates existing tobacco industry youth initiatives. Contains handwritten corrections.
(indexer.indexer_email WAS INVALID IN OLD DATABASE: CPM)
American Council on Science and Health
Center for Tobacco Products
Department of Health and Human Services
Family C.O.U.R.S.E. Consortium
National School Boards Association
Cigarette Advertising Code
It's The Law
Whitley, C. O.
Chabot, J.J. (Justice)
Koop (Surg. Gen.)
Committee on Commerce, Science, and Transportation
~ ,<i' ~ DRAFT
....... ~ Statement of Charles O. Whitley
• ~ ~0 on b~alf of
~~ ~e Tobacco Institute
..: ~..~ before the
...... ' Co~ittee on Co~erce, Science & Transpo~ation
~: United States Senate
..... ' October 1991
~ai~an, distin~ished m~ers of the co~ittee and
foyer collea~es from the other body, I appreciate this
opportunity to testify on S.I088, the "Tobacco Product Eduction
and Heal~ Protection Act of 1991."
S.I088 would create out of the existing Office on Smoking
and Health a new bureaucracy -- a Center on Tobacco and Health
within ~e C~ters for .Disease Control, increasing its funding
seven-fold, from-$3.5 million to $25 million in the first ye~.
This new C~t~ would be tasked wi~ providing info~ation about
tobacco use and conducting multimedia counteradv~tising
The bill would establish a "M~el State Pro~am" to make
~ants for activiti~ desired to discourage young people from
smoking. It would also establish a grant-making system for
public and nonprofit entities for educational efforts to reduce
tobacco use among the working population.
~~, S.I088 would re~ire disclosure of tobacco product
ingredients and "additives" to the Secreta~ of ~S and reporting
CONFID ,NTIAL: TIMN 366161
MINNESOTA TOBACCO LITIGATION
Page 2: 00003363
of such ingredients in or on product packages. It would allow
the Secretary to ban a tobacco additive by regulation.
The bill would alter the package warnin~ labels already
mandated by law -- to be enlarged to appear on the front and back
panels and take up at least 20 percent of the space.
Mr. Chairman, these requirements add up to a costly new
federal antismoking bureaucracy to engage in propaganda,
regulation and spending without any legitimate rationale.
We strongly oppose S.i088, which would do nothing to reduce
smoking among youth or adults. Rather, it would ill-advisedly
use the power of the federal purse to coerce states into a
national antitobacco crusade.
It would authorize regulation of tobacco product ingredients. ~_
even though there has been no suggestion of health concerns ~
~ the compr~ensive ingredi~'lt infozn~tion already
the Secretary of HHS.
It would require public disclosure of ingredient information
without regard to trade secret status and authorize
"counteradvertising" campaigns that raise serious First Amendment
S.I088 is costly and duplicative. While its goals may be
co_mmendable, its methods amount to an irresponsible use of
limited taxpayer dollars. Since the bulk of the bill addresses
educational campaigns to curb smoking, I would like to address
that aspect first. Let me begin by bringing you up to date on
the tobacco industry's initiatives to curb youth smoking.
OT,X TOa,XCCO t,rnG,x IO TEVIN 366162 •
Page 3: 00003364
Industry Youth Initiatives
Daily smoking among young people is declining. In 1987,
19 percent of high school seniors identified themselves as daily
smokersI while in 1990, 17.7 percent said they smoked on more
than 25 of the 30 days preceding the survey.2 Last month the
Centers for Disease Control released a new study which found that
one-third of our high-school students have used tobacco. The
study found that more white students used tobacco (41.2 percent)
than Hispanic (32 percent) or black (16.8 percent) students. And
that 13 percent of students used cigarettes frequently.
Mr. Chairman, members of the subcommittee, and everyone
present, I am here to tell you that the tobacco industry opposes
youth smoking. We do not want, nor have we ever wanted, underage
youths buyin~ or using our products.
The tobacco industry has long held the belief
is an adult decision. We have a thirty year
history of efforts
to discourage young people from smoking. Last year we increased
our efforts considerably.~^~
The industry s advertising and promotion code has been
significantly strengthened. Recent revisions to the Code
Cigarette product samples will not be distributed in or on
i Reducing the Health Consequences of Smoking,
of Progress, a Report of the Surgeon General, 1989.
2 Youth Risk Behavior Survey, Centers for Disease
CONFmv. : TIMN 366163 '-- ..... :
MINNESOTA TOBACCO LITIGATION --
Page 4: 00003365
public streets, sidewalks or parks, except in
only to persons to whom cigarettes lawfully may be sold.
No product samples will be given to persons under 21, even
if state law allows the sale of cigarettes to them.
No mail distribution of product samples will be made without
written, signed certification that the addressee is 21 or
older, a smoker and wishes to receive a product sample.
Distribution of nontobacco premium items bearing cigarette
brand names, logos, etc. is limited. Mail distribution
requires a written, signed certification that the addressee
is 21 or older, a smoker and wishes to receive the premium.
Other distribution of nontobacco premium items will only
take place to persons 21 or older, or with the purchase of a
package or carton of cigarettes.
Paid product placements in movies have been formally
There will be no cigarette advertising on billboards within
500 feet of schools and playgrounds.
MINNESOTA TOBACCO LITIGATION 366164 .....
Page 5: 00003366
We are supporting new state laws setting a minimum age of 18
for the purchase of tobacco products. [Visual Aid: graphic
showing passage of laws, states yet to pass legislation.] Since
we launched the program last December, we have supported the
successful passage of laws in Louisiana and Wyoming, where 18 was
established as the minimttm age; and in North Carolina, Vermont,
Virginia and the District of Columbia, where the age was raised
But we're only halfway there. Next year we hope to see the
successful passage of laws in Delaware, Georgia, Kentucky,
Missouri, Montana and New Mexico.
In addition, the industry is supporting state legislation
requiring supervision of cigarette vending machines in places
frequented by minors. [Visual Aid: graphic showing vending
supervision.] Vending machines are not a prima.ry source of
cigarettes for teens.3 In fact, the majority of these machines
are in places not frequented by minors, such as bars, factories
and workplaces.4 We believe supervision is a responsible step
Twenty-two percent of 13 year olds and two percent of
17 year olds say they purchase cigarettes through cigarette
vending machines. Findings for the Study of Teenage Cigarette
Smoking and Purchasing Behavior, National Automatic Merchandisin~
Association, June/July, 1989.
4 Of the total number of cigarette vending machines, 70
percent are in bars, cocktail lounges, industrial plants and
offices. A further 7.5 percent are in hotels, motels and
universities and colleges, for a total of 77.5 percent located in
places where minors are not, or should not be, present.
Restaurants account fo 13 percent of cigarette vending machine
locations. The remaining 9.5 percent are found in service
stations; government, military and retail stores; transportation
terminals; recreation and bowling centers and other miscellaneous
MINNESOTATOBACCO L~IGA~ON TIMN366165
Page 6: 00003367
to curb the few young people who do buy cigarettes from
unsupervised machines. Devises such as lock-boxes, or tokens,
require direct contact with store personnel and would help to
r-~,~" those underage from purchasing cigarettes through vending
Having these laws on the books isn't enough. Observing the
law is a powerful deterrent to youth smoking. We want to control
access to cigarettes, and I am pleased to share with you an
almost year-old program sponsored by the industry and spearheaded
by The Tobacco Institute: "It's the Law." [Visual Aid: graphic
showing ItL materials in action. ] The "It's the Law" program is
designed to assist the retailing and vending industries, and to
enlist their support and cooperation in discouraging the sale of
tobacco produc~s to those who are underage.
In the three states where the minimum purchase age is 19,
and the 41 states and the District of Coln~ia where it is 18, we
are providing -- free of charge -- educational materials and
colorful signs and decals to all stores selling tobacco products,
to help observe state laws regarding the sale of cigarettes. Our
position is that these laws can and should be observed.
Over i00 cosponsoring organizations have joined with The .
Institute to help distribute these materials. With me today is
, who directs
. Mr. would be
happy to address any questions you might have on
this subject and
com~nent on the impact of the program in his state. We have sent
areas. NAMA study, March, 1986.
OTA TOBACCO L IGAnON TININ 66 66 ....
Page 7: 00003368
out over 550,000 (all distribution figures will be brought up to
date) signs, decals and buttons to thousands "of stores in every
state having 18 or 19 as the minimum age. [Examples.]
The efforts I have described address curbing youth access to
cigarettes. We want to stop the supply of cigarettes to young
people, and we also want to ~ youth~f~T od~ product.
The unhappy fact is that some young people will smoke.
Research shows that peer pressure is one of the primary reasons
they do. Peer pressure can be positive - for instance it
inspires healthy competition scholastically and in sports. But
other times it is ~
In order to enable young people to resist negative peer
pressure, The Tobacco Institute asked for the help of respected
educators from around the country in preparing a booklet for
parents to use to help their children cope with peer pressure.
The result is "Tobacco: Helping Youth Say No," the third in a
series of publications addressing peer pressure made available by
The Tobacco Institute.
The booklet offers practical advice and actual techniques
parents, educators and other concerned adults can use in talking
to young people about smoking.
"Tobacco: Helping Youth Say No" is being promoted by The
Family COURSE Consortium, a group of educational experts and
organizations who have joined together to promote family values
and the importance of communication in helping young people
develop into responsible adults. With me today is
MINNESOTA TOBACCO LITIGATION TIMN 366167
Page 8: 00003369
(list credentials) a member of the Consortium, who will discuss
the Consortium' s activities.
over 150,000 copies of "Tobacco: Helping Youth Say No" have
been distributed to parents, school counselors, teachers,
administrators and civic and youth group leaders over the past
nine months. You may have seen an advertisement offering the
booklet in Parade, People, McCalls, Better Homes & Gardens,
Ebony, or ~ other major magazines the ads are running in.
It is available by writing, or calling an 800 number to place an
or perhaps you may have heard about our new program on the
news or read about it in your local paper. We have been to over
65 cities around the country so far this year to discuss with the
media the industry's latest initiatives to prevent young people
Here's what people are saying about us: [Visual Aid- TIHYSN
with quotes. ] give appropriate quotes from attached sheets.
The Role of A~vertising
Finding number II of S.I088 states that "convincing evidence
demonstrates that tobacco advertising creates market expansion
and retention." Mr. Chairman, this is not the case. In fact,
the role of advertising was put to the test in the recent
Canadian decision to overturn that country's three-year-old
tobacco ad ban. Not only was the law declared in violation of
the Canadian Charter, because the Court affirmed that advertising
MINNESOTA TOBACCO LITIGATION TIN[N 366168
Page 9: 00003370
of tobacco products is protected expression, but the Court
rejected the Canadian government's argument that banning tobacco
advertising reduces consumption. In ruling on the case, Quebec
Superior Court Justice Jean-Jude Chabot said, "there isn't any
proof that advertising itself is a danger to public health. As
Aristotle once said, the word 'dog' never bit anyone."5
Furthermore, former Surgeon General Koop acknowledged that
cigarette advertising and promotion have not been shown to
increase the level of tobacco consumption. ~e stated in 1989:
"There is no scientifically rigorous study available to
the public that provides a definitive answer to the
basic question whether advertising and promotion
increase the level of tobacco consumpt£
Michael Pertschuk, the former chairman of the Federal Trade
Commission who now helps direct the antismoking lobby, stated in
1983 that "no one really pretends that advertising is a major
determinant of smoking in. this country or any other. ,,7
Similarly, the Ontario Task Force on Smoking acknowledged in
1982 that "no persuasive empirical evidence exists" to support
the contention that advertising is a significant determinant of
5 Canada's Tobacco-Ad Ban is Overturned by Judge, Wall
Street Journal, July 29, 1991.
6 U.S. Department of Health and Human Services, Reducing
the Health Consequences of Smoking: A Report of the Surgeon
General, 512 (1989).
7 Tobacco Issues, Institute of Politics, Harvard
University, April 27, 1983, Tr. 8-9.
MINNF.,SOTA TOBACCO LITIGATION 366169
Page 10: 00003371
smoking,s Likewise Elizabeth Whelan of the American
Science and Health stated in 1985 that an
advertising ban would
"probably not" reduce cigarette consumption in this country.9
If tobacco advertising were to create market expansion, as
stated in this finding, then one would expect to find more
smoking in those countries that allow such advertising than in
countries where tobacco advertising is banned. Yet "evidence
from other countries suggests that banning tobacco product
advertising has not discouraged smoking," according to the
President's Council of Economic Advisers in 1987.10 Even more
significantly, tobacco product consumption -- both adults and
young people -- is declining in many countries where advertising
is permitted, including the U.S., while increasing in many
countries where advertising is prohibited.
The tobacco companies advertise to attract, brand switchers
and retain brand loyalty. Finding ntumber II of this bill cites
this as being the reason the tobacco industry "claims" is the
p~rpose of advertising, then goes on to state that "only" i0
percent of smokers switch brands. Mr. Chairman, the cigarette
market has annual sales of about $40 billion. Gaining a single
market-share point means garnering $400 million in sales and --
equally important -- preserving a single market-share point means
8 Task Force on Smoking, Smoking and Health
A Need for Balance 104 (1982).
9 "Second Thoughts on a Cigarette-Ad Ban," Wall Street
Journal, December 18, 198S, at 28, col. 6.
10 Economic Report of the President (1987) at 196.
MINNESOTA TOBACCO LITIGATION 3661'70 .--
Page 11: 00003372
keeping nearly $400 million in sales. Suddenly, that "mere" 10
percent of brand switchers become a very important audience. ~
Medel State Program
Under S.I088 a "Model State Program" would be established
with several goals and specific criteria to encourage states to
prevent tobacco use by minors.
Mr. Chairman, no one should suggest that state and local
governments need federal encouragement in this area. State and
local jurisdictions are on record as having local tobacco taxes,
local advertising Aa~s, sampling bans, sales and smoking
Moreover, the "Model State Program" as defined in S.I088
mirrors what the tobacco industry itself is already doing. I've
given you a~ overview of our youth initiatives; I'd like to walk
you through a side-by-side comparison of the tobacco industry
youth initiatives and the "Model State Program."
side-by-side comparison. ]
The "Model State Program" is designed to prevent
initial use of tobacco products by minors. Our program
helps p~ven~ youth access to tobacco products.
The "Model State Program" would encourage cessation of
tobacco use by youth and others, including "high risk"
categories. Our program is designed to discourage young
OTA TOBACCO Lm6AT ON .... TIMN 366171
Page 12: 00003373
people from smoking.
The "Model State Program" would implement and
prohibition on the sale of tobacco products to
program Implements and encourages a prohibition on
of tobacco products to minors.
In the proposed "Model State Program," to qualify
federal grant, a state must:
o have in effect a law prohibiting the sale of
tobacco products to those under 18. The industry supports
such laws, and supported the successful passage of them in
six states just this year.
o improve enforcement of this law. The industry's
"It's the Law" program does this.
o have in effect a law intended to reduce youth
access to cigarette vending machines by minors. The
industry supports state legislation requiring supervision of
cigarette vending machines in places frequented by youth.
o improve enforcement of this law. s the Law,"
coupled with industry support for the use of tokens, lock-
boxes, etc., works to achieve this end.
o have in effect or seek to establish a law
prohibiting the distribution of free samples of tobacco
products. As I mentioned earlier, Mr. Chairman, the
industry voluntarily has banned sampling on public streets,
MINNESOTA TOBACCO LITIGATION
Page 13: 00003374
sidewalks and parks, and does not give samples to people
F~ther, the indust~ progr~ offers "Tobacco: Helping
You~ Say No," to deal with peer press~e, which
Und~ this p~ovision of S.i088, compliance wi~ laws to
prevent youth access to cigarettes would shift from law
enforc~ent agencies to p~lic health authorities. Today, 47
states and ~e District of Col~bia have laws~' ~e sale
of tobacco products to minors. Those laws can and should be
enforced -- by law enforcement officers whose duty it i~ to
uphold ~e law.
Moreover, it should not be the role of ~e federal
gove~ent to usu~ the powers and prerogatives of state and
The $25 million allocat~ for 1992, with the promise of
additional fun~ for 1993 and 1994, throws money at an issue
already e~eri~cing nationwide att~tion. In addition, it would
duplicate ~e effo~s of ~e ve~ indust~ it is t~ing
~~ge co=itted to o= pro~am to reduce ~e supply,_ _nd
.~ tobacco products by minors. Some may ~estion our
motive, but it's really ve~ simple: the tobacco
not want, nor has it ever wanted, ~derage youth
to smoke. We
have vol~tarily end~ free distribution of product
p~lic. We have vol~t~ily stopped cigarette bill~d
MINNESOTA TOBACCO LITIGATION 366173 " -
Page 14: 00003375
advertising near schools and playgrounds. We are firmly behind
raising the minimum age to 18 and requiring supervision of
vending machines. We are giving parents the educational tools
they need to talk to their kids about smoking and are working
with professionals to develop more. We are working with
retailers to make it tougher for minors to buy tobacco products.
And we are conducting a multi-year advertising campaign to
broadcast our program and our message.
Mr. Chairman, I find myself in the unusual position of
saying to you that the tobacco industry is already working to
achieve the goals of Senator Kennedy's bill.
Anti-Smoking Advertising Campaigns
S.1088 would establish two new federal bureaucracies within
the Department of Health and Human Services. One of these would
administer anti-tobacco "information" and "education" programs,
including the Model State incentive program I've already
discussed as being unnecessary,~--~h~-i~-~.
Mr. Chairman, the industry supports the goal of this
legislation to reduce the number of young people who smoke, and I
agree that realistic, responsible action should be taken to
prevent them from smoking.
This bill has a price tag of $110 million for 1992 alone.
That's a lot of money to spend when there are already huge
amounts of anti-tobacco information and negative media coverage
out there. Public awareness levels regarding smoking almost
MINNESOTA TOBACCO LITIGATION TIMN 366174 "
Page 15: 00003376
reach the point of saturation now.11 Frankly, we can't expect
a new counter-advertising campaign to increase what are already
very high levels of awareness.
We do need to make sure our children are as well-informed as
they can be. The same anti-tobacco advertising campaign that's
been going on since the first Surgeon General's report has
reached kids and adults alike. Ever since that report was first
issued over 25 years ago, federal health officials and other
policymakers have actively warned the public about health risks
allegedly associated with smoking. State and local governments,
as well as anti-smoking organizations and individual activists,
have joined this crusade against tobacco use by dedicating their
efforts toward reducing the n1~mber of people who smoke.
The anti-tobacco lobby also has turned its attention to
youth smoking in recent years, developing outreach programs and
educational camgL~igns designed to teach children about the health
ef-~ee~s~associated with smoking.
And students are getting the message in the classroom. A
1988 National School Boards Association survey of public school
districts found that 75 percent have anti-smoking programs at the
elementary level, 81 percent at the middle school level and 78
11 Five years ago, an HHS survey showed that not
the American public heard that smoking posed a health threat, but
95 percent be~i..eved that cigarette smoking increased the risk of
lung cancer. Messages about other health hazards linked to
smoking also were received -- 92 percent believed it increased
the risk of emphysema and 91 percent believed it increased the
risk of heart disease. Most Americans also b~lieve that second-
hand smoke is harmful to nonsmokers.
CONFIDENTIAL: TIMN 366175
MINNESOTA TOBACCO LITIGATION
Page 16: 00003377
percent at the high school level.
The pttblic information campaigns that would be conducted
under this bill are directed to '~., school dropouts, pregnant
women, minorities, blue collar workers and low income
individuals." It seems to me the assumption here is that
cigarette advertising improperly "targets" these groups. Mr.
Chairman, I find this attitude paternalistic and condescending.
The underlying implication is that these groups are in need of
special protection because they can't determine their own best
interests. It is not the function of government to play "Big
The CaliZornia ~xperience
The State of California began a $28.6 million mass-media
anti-smoking campaign in April of 1990, as part of a 1988
cigarette-tax initiative According to state officials, the ad
campaign has reduced smoking in that state.
Statistics show that the percentage of adults in California
who smoke went from 26.3 percent in 1987 to 21.2 percent in 1990.
Reports attribute the 5.1 percent drop in smoking directly to the
anti-smoking educational initiative. Based on this, other states
are now seeking to emulate the California example, in an effort
to reduce smoking in their states. But let us examine the real
reason smoking rates declined in California.
The ad campaign was part of a larger initiative, which
included a 25-cent increase in the state's cigarette tax (from 10
TObaCCO TININ 366176
Page 17: 00003378
to 35 cents per pack). That increase took effect in 1989, prior
to the ad campaign.
By examining cigarette sales statistics for the period of
1987-1990I2, a completely different pictm:e emerges. Between
1987 and 1988, there was a one percent drop in purchases; from
1988 to 1989 a 13 percent drop; and from 1989 to 1990 sales
remained virtually static, rising by six-tenths of one percent.
SO in ~e year prior to the tax ~ncrease, sales fell by one
.~;~,;<7~erc~t, then ~opp~ ~a~tically by 13 percent after the t~
?~ncrease took effect, an~ beZore the ad ca~aign
• ~learly, the decline in smoking cannot be
attribut~ solely to
~.~e ad c~pai~, as ~e decline cached before ~e ads were
It ~s unfort~ate ~at the statistics have been so skew~
~ere. ~is is an attempt tu claim success by falsely attributing
a costly anti-tobacco advertising c~paign and hiding ~e real
cause of the decline in smoking. It is misleading to ~uggest
that o~er states would experience similar declines in smoking if
they were to adopt an anti-smoking adve~ising c~paign, got
only is it misleading, but it is a dissa~ice. I would strongly
reco~d ~at ~e California adve~ising example be e~osed for
what it is: a costly priam that did not alter smoking habits.
12 Based on the Monthly State Cigarette Tax
MINNESOTA TOBACCO LITIGATION TIMN 366177
Page 18: 00003379
Zn~ed~ent and ~dd~t~ve D~scZosu~e
I mentioned earlier that two new bureaucracies would be
created under the provisions of S.I088. The first would, in the
words of Senator Kennedy, "get the anti-smoking message to the
nation.''13 That is, to a nation that already knows the
¢~ The other new agency would administer a program regulating
..~.~"additives" -- even though the safety of additives is currently
the responsibility of the Secretary of HHS under existing law and
there has been no suggestion of health concerns based on the
~additive information supplied to the Secretary by the cigarette
manufacturers over the past several years.
The Center for Tobacco Products would be directed to inform
the public regarding constituents of, and additives to, tobacco
products, and to restrict the use of additives that represent a
Significant health risk to the public. The Center would be
directed to investigate the additives contained in tobacco
products and to determine whether such additives represent a
significant added health risk to consumers of such products. If
the Center determines that any tobacco additive, either by itself
or in conjunction with any other additive, presents unnecessary
increased risks to health, the Center would be authorized to
prohibit the use of a tobacco additive or allow its use only at
Further, the Center would be directed to require public
13 Kennedy press release, details tk
MINNESOTA TOBACCO LITIGATION ~ 366178
Page 19: 00003380
disclosure, through labels or package inserts, of tobacco product
additives and "harmful tobacco smoke constituents " Cigarette
manufacturers would be required to provide to the Center a
complete list of each tobacco additive used in the manufacture of
each tobacco product brand name and the ~antity of such
additive, and a complete last of all brands ~at includes the
levels of "tar," nicotine, carbon monoxide, and other constituent
(as dete~ined by the Center) for each brand as dete~ined by ~e
~. ~ai~an, many of these provisions sustantially
duplicate existing law. To the e~ent these provisions would
=hange existing law, the change would sere no d~onstrable
policy objective. ~ese provisions also .would threaten public
dis=fosse of c~ercially sensitive info~tion that cu~ently
is protected from public disclosure as .trade se~et or
confidential info~ation. Su~ disclos~e would produce no
Under ~e Compr~ensive Smoking Education Act, enacted in
1984,. the cigarette manufact~s ~e re~ired to provide the
Secret~ of ~S on an a~ual basis "a list of the ingredients
added to tobacco in ~e manufa~e of cigarettes." 15 U.S.C.
section 13~Sa(a). ~e list provided to the Secre~ need not
identify the company involved or the brand o~ cig~ettes that
con~ins ~e in~edients. (Ibid.) Congress considered the
disclos~e o~ cigarette in~edient info~ation on this basis to
be ade~ate to "pe~it ~e fed~al gove~ent to initiate ~e
MINNESOTA TOBACCO LITIGATION TIMN 366179
Page 20: 00003381
toxicologic research necessary to measure any health risk posed
by the addition of additives and other ingredients to cigarettes
during the manufacturing process." H.R. Rep. No. 805, 98th
Cong., 2d Sess. 21 (1984).
The Secretary, in turn, is directed to transmit to Congress
periodic reports advising Congress of any information pertaining
to such ingredients "which in the judgement [sic] Secretary poses
a health risk to cigarette smokers." lid. Section 1335a(b)(i).]
Each year since 1986, the six major cigarette manufacturers have
jointly submitted ingredient lists to the Secretary as required
by the 1984 legislation. The most recent list was submitted just
this past December (check on this) In 1988, then-Surgeon
General Koop indicated that the Department of HHS was actively
reviewing the ingredient lists that had been submitted. There is
no reason to believe that this existing review mechanism is
inadequate and .needs to be expanded or replaced.
Neither is there any justification for requiring public
disclosure of tobacco additives. Because information concerning
the ingredients used to manufacture particular cigarette brands
is competitively sensitive, Congress provided in the
Comprehensive Smoking Education Act that the ingredient
information supplied to the Secretary "shall be treated as trade
secret or confidential information." Such information is exempt
from disclosure under the Freedom of Information Act and criminal
penalties are established for unauthorized disclosure. [15
U.S.C. Section 1335a(b)(A).] The Act specifically requires the
MINNESOTA TOBACCO Lrn6AT ON TIMN 366180 .....
Page 21: 00003382
Secretary to establish "written procedures to assure the
confidentiality of such information." [Id. Section
1335a(b) (2) (C).] And he has done so.
In 1984, Congress considered and rejected public disclosure
of ingredient information -- and for good reason. As originally
introduced in the 97th Congress, the House version of the
legislation ultimately enacted in 1984 would have required
ingredients to be listed on cigarette packages.15 Opposing
such a requirement, The Tobacco Institute's witness explained:
"Cigarette manufacturers use a variety of ingredients
to enhance flavor and appearance and preserve shelf
life. These ingredients are among each manufacturer's
most closely held trade secrets. There is no
justification for denying cigarette manufacturers the
trade secret protection extended to every other
consumer product industry. ,,16
The Institute's witness also pointed out that requiring package
disclosure of additives, "combined with the...health warnings and
tar, nicotine and carbon monoxide numbers, would turn cigarette
packages into little textbooks, likely causing smokers to ignore
it all." (Ibid.)
Congress responded to these objections in
legislation by providing trade secret protection
ingredient information supplied to the Secretary. In addition,
14 See 50 Fed. Reg. 49,617 (1985).
15 H.R. 5653, 97th cong., 2d Sess., p. 7 (March i, 1982).
Comprehensive Smoking Prevention Act: Hearings on H.R.
5653 and H.R. 4957 before the Subcomm. on Health and the
Environment of the House Comm. on Energy and Commerce, 97th
Cong., 2d Sess. 335 (1982) (testimony of Edward A. Horrigan,
MINNESOTA TOBACCO LITIGATION TEV[N 366181
Page 22: 00003383
it made clear that ingredient information was to be submitted to
the Secretary in a manner that does not identify the company
involved or the brand of cigarettes containing particular
The considerations that supported Congress's decision to
treat ingredient information that way in 1984 remain valid today.
Warnimg Label Requirements
Finally, Mr. Chairman, I'd like to address the bill's
proposed changes in cigarette warning labels. Cigarette
packaging and advertising currently carry one of four government-
mandated warning labels. The industry's advertising is regulated
by the Federal Trade Commission. And, in addition, the industry
adheres to a voluntary set of advertising standards.
S.1088 stipulates replacing the carbon monoxide warning with
an ;'addiction" warning. It also would require the warnings "to
appear on the two most prominent sides of the product package on
which the label is required, be in a size which is not less than
20 percent of the side on which the label is placed and include
letters in a height and thickness which assures that the letters
in the space provided for the statement will be no less legible,
prominent, and conspicuous in size than other matter printed on
the side of the package on which the label statement appears."
The government has a responsibility to control advertising
content to ensure it is not misleading or deceptive. But to cite
tobacco as an "addicting" drug is in itself deceptive and
CONnDENT AL: TIMN 366182
MINNESOTA TOBACCO LITIGATION ....
Page 23: 00003384
misleading. The Surgeon General's office indicates that 41
million Americans have q~it smoking. The 1989 Surgeon General's
report states that nearly half of all living adults who ever
smoked have quit. And the Public Health Service reports that 90
percent of these people have done so without outside help. This
hardly sounds like figures for an "addicting" substance.
It would also set a very dangerous roadblock in our war on
drugs, by sending the message that smoking, like illegal drugs
such as crack or heroin, is addictive. It would not be prudent
to give young people the impression that the drug abusers they
see on television or hear about on the news are no worse than
parents, friends and neighbors who smoke. This warning label
would dilute the message that hard drugs are dangerous, addicting
Also, the bill would dictate what a cigarette package would
look like, by requiring a warning label covering 20 percent of
the front and back panels of every cigarette package that is not
less prominent than other printed matter. Each cigarette brand
has unique packaging that serves as its identification - itself a
form of advertising. Controling the content of all printed
matter on the cigarette package would homogenize this information
and reduce the ability of a manufacturer to promote his product
through unique packaging design. Finally, requiring 20 percent
coverage of both front and back panels would force an industry to
stigmatize its own product.
CONFn)WNTIAL: TIMN 366183
MINNESOTA TOBACCO LITIGATION
Page 24: 00003385
The intent of the Kennedy bill, Mr. Chairman, is to use the
federal imprimatur to influence state and local actions. State
and local governments, the nation's educational systems and
citizen and consumer groups are taking considerable steps to
ensure that the American public is informed about tobacco issues.
The industry itself is taking responsible, positive steps to
ensure that its ~roduct remains what it was always intended to be
-- for adults only. This bill is costly, unwarranted and
I would be glad to answer any questions.
CONFIDENTL~L: TIMN 366184 ......
MINNESOTA TOBACCO LITIGATION