Tobacco Documents Online

DIU11'"d' 9-27-73 H.Lct;:ii To: From: Subject: Director, NCI Special Assistant, OD,/;vCI A Proposed Resolution for consideration at the next meeting .of the National Cancer Advisory Board In June I was asked to comment on a resolution which was presented to the Board for its endorsec:ent._-At that- time I recommended that the resolution be reconsidered on the grounds that the Board_would be asking a Federal agency to take action which -that- agency iaas precluded fro:n - taking by virtue of its enabling_legi-sla_tion.__ The Board accepted my recommendatioZ and asked me to-°draft alternative resolutions for the Board meeting in October. (I have been informed this week that this item has been moved to the November agenda.) It is my understanding that the Board, in the resolution proposed in June, wished to recommend that a Federal agency, in this case the - Consumer Product Safety Commission, be asked to review the health effects of cigarette smoking, based or.-existing scientific evidence, and make whatever regulations which would be appropriate to reduce the risk to smokers of lung cancer and other health hazards. Attached-are two alternative resolutions which were prepared with the foregoing objective in mind. The resolutions differ in approach. Let me explain this difference. The resolution which was presented to the BoardO in June, and which-is essentially Alternative B, assumes that the 1%

Page 2 - Director, %FCT Co6suner Product Sa€ety Commission has the authority to consider cigare*_teswithin the meaning o-€-the Federal Hazardous Substances Act (FIiSA)Y, as -amended. Tne -Conmissisn has no-such au*_hority under its enabling statute since "tobacco and tobac - co products°1 are specifically excluded from the definition of "consumer products." The contention that the Conunission- has 5urisdiction under the FHSA is currently under active debate. The current Chairman of the Commi,sion ::as stated-that he feels the Commission does have such jurisdiction. Prior to tI-ie transfer of functions under the F'r~SA-from the FDA to the Commission, it was the official position of the FDA and DHEi•1's Office of General Counsel that the FHSA had no application to cigarettes. -However, it must be pointed out that this question has never been litigated and therefore the courts have not finally resolved this-question~- My personal view is that I find the evidence supporting the. earlier HEW and FDA interpretation of the legislative history of the FHSA terribly persuasive. For this reason I recommend the proposal titled Alternative A, In contrast to Alternative B, Alternative A assumes that the legislative history of the FHSA does not support the contention-that cigarettes-were not intended to be within the purview of that Act. In general terms, Alternative A assumes that legislative action is necessary and recommends that either the FHSA or the Consuner-Product Safety Act of 1972 be amended to give the Commission jurisdiction over_ cigarettes,_or new- ~ ~

Page 3 - Director, NCI legislation be prrpozed by the President which would ve.st this-authority in a new-or another Federal ager:cy._ If this approach were successful, this would finally make the intent of Congress crystal clear. I must add that this memorandum reflects my personal-views-based on my reading of t he legislatiori and not the official legal position of the I3IR or the I?HEW. Naturally, I am atAailable to discuss these proposals further if you wish. . iiarold J. Leigh - ra w~~

Alternative A - WiEREAS, the ,Iational Cancer Program has primary responsibiiity for advancing-thP national effort agains-t cancer, and WHEREAS the-gcientific evi.dence-indicates that cigarette`smoking-is- - a leading cause of lung cancer, and the mortality-_froca lung-cancer is over 60,000 per-year in the United-States, and WHEREAS, at the present time,- no Federal agency is empowered with- the responsibili-ty of controlling the health risks to which users of cigarettes are exposed, THEREFORE, the National Cancer Advisory Board recor~aends that the President propose legislation to empower an appropriate Federal agency to review the health risk of cigarettes of the various brands now .offered for sale in the United States and to make regulations which may be expected to reduce the risk of lung cancer and other health hazards.

Alternative B WNFREAS a Consumer Product Safety Carunissian has_been established under the Consumer Product Safety Act of 1972, and k''dEFFAS under the Federal Hazardou4 Substances Act,•as amended, the Commission has the responsibility of controlling the risks to which users of hazardous substances are exposed,-and 161RE:EAS the evidence that cigarette smoking causes lung cancer is now overwhelming; and the mortality from cancer of the lung is over- 60,000 _ per year in-the United States, THEREFOP.E, the National Cancer Advisory Board recommends that the Consumer Product Safety Commission, within its authority under the Federal Hazardous Substances Act, as amended, be asked to review the health risk of cigarettes of the various brands now-for_sale in the United States and to make appropriate regulations which may be expected to reduce the risk of lung cancer and also of other health hazards. .

- Tdtcrnatc F~:!soluftion C 4MItEAS ti:e i?a_ticn3l Cc:nccr PrcUr~.::m has_1 es -ponsibility for _advancir.cythe national effort against czincer,-- and jammF.AS-';hc. -scientific evider,ce indicating that cigzm°tte srcul.:ing is by far the _nu-jor of e.nvisor~ •:2.•1ta1. factrr-s contribi:tina to the causation of lung cance.r, and that n-crtal.ity for lung cancOT is over 60,000 per year in the Uni',: ed States, and WICRMM the econm-• c reality of tobacco related _€arming, indust.~~ and federal and state taxation is re:.oanize-:~ as a majQz• eleaent o,f the national eccrndm- of-the Umted States, and one that could not be easily transfo nLed to anon-tca7ao=•o °ILIUi.ai.: r. .A•.6. lL ~ ~4-. Ja....~. ci~l "''.eC.S..C: ~,, and WfEPFAS the national records clearly indicate that nearly 55,000,000 citizens of the United States- still ~dce cigarettes against al]l public warnangs of tlm hazards connected with the habit, thus P.aking it clear that cigarette s; ~!~cing is established as a major eaYponent of contercporar•y popul.ar culture and tradition in the United States,-and WFEFE15 it is likely that a vast n:~-~bes' of p~.~ople will continue to adopt cigarette -moki.ng as a;•ray of personal gratification the next fca decades, thus naking it unlikely that cigarette banning lcgislation will be eithfir feasible or desirable, and in f ~. . , . _ _ ,.. ~,..~.~...~- _ :~_-~

-2- I'AE I2f'J,i'f- tho cGst of disva5 ; z:s--Cx'latC d with clgaretta -'.b}"`.~f`ig-- - will b.e a Tiat1C9?lal burden '1 -t'?e - preseIlt econc:ll.c systa~1'i-of hra.ft, care delivery irn tha Unite d States, asid Y7EMAs scientific evidence ard -reeords indicate that individuals var;~. in their suscxptibility to the adverse health eft=ects of srroldng, and that cigarettes can be manufactured to p reserit vary ing degrees of heaith hazards to the -,-m1 er, ~ a THUtrt•ORE the- National Cancer Advisory Eoaxd -reccr-mau-nds to- t.n- Director of the NCP-NCI that resources be irmed.ia+ej y,al-located for a research. program directed at reducing the risk of the - sinoker by identification of high -ri sk -ind.ividuals and deveio-7mrit of less hazardous products. That all proper ac'-on b3 taken to coordi.nate these efforts with the ~''~I to insure that the entire spectnn, of snyl-.inng related diseases is adequate? y covered. Th-at a detailed oLan for action on these re .oo ~tion.s be presented to the NCAB of the March 1974 rreeting -and that two reports be made annually to the National Carcer Advisory Board on the progress and reuuire--•erits of u`ya NCP-NCI s<<xo3-.ing and health piogra-nE Ab