Tobacco Documents Online

COOK,, PURCELL, HANSEN 8E HENDERSON MARLOW, W. COOK GRAHAM.PURCELU ORVALHAN9EN DAVID: NINENDERSON. JOHN L.ZORACK JOHN C.KIRTLANO. F. EUGENEWIRWAHNJAM'ESCAM'PBELL LAWRENCE' A: WEISS DAVIDE:SATTERFIELDIII WILLUIM' J. HULL OF COUNSEL , MEMORAI+IDUM FOR: FRO'M : SUBJECT : C $'ARTE R'E D ATTOE'N'EYS AT LAW 1016' EIGHTEENTH STREET, N. W'.. WASFDINGTON„ U. C. 2003G (202) 659:-1050 ~ CABLE:CHLAW TELEX: 440608'. TELECOPIER?f 202 f. 659 ~1577' December 15, 1981 The T'obacco Institute Cook, Purcell, Hansen & Henderson, P'revention Education Act of' 198'l." KANSAS CITY OFFICE SHOOK HARDY'6' BACON, 20- FLOOR MERCAN~TILE.BANKTOWER' 1101 WAILN~~UT: KANSAS~ C.ITY„MISSOURI 164106 '~ (816):474-6550~ BOSTON OFFiCE~~ RAMSEYy,SERINO, MURRAY. & . HARRINGTON ONE WASHINGTONMALL. ' BOSTON;MASSACHUSETT902108, ~~ (617) 723'8100~~ Chartered Th~ Se,:at,e~Ver~~ of the "Comprehensive Smoking I. Ex~~ecut~ive~ Summary On December 9, 1981, Senat_or_Hatch. Chairman of the. Committee on Labor and Hu¢nan Resources, and Sena&ox Pac'kwood,. Chairman of the Committee on CQmmerce, Science and nd Transportation, introduced a companion bill to H.R. 4957 with the same short title, the "Comprehensive Smoking Prevention. Education Act of 19'8'1." By unanimous consent, their bill (S. 1929) was referred jointly to the committees they chair. The Senate bill is much, more modest in scope than the Waxman bill in some respects. The "warningi labels," for example, aremore restrained' in the Senate bill and less inflamiatory, in this layman's'jiudgment. Although the new functions of HHS under the Waxmanibill are paralleled' in thie Senate bill, there is no requirement for a statutory "'Office"' within HHS to carry out the antismoking prog,ram. Under the Senate bill, the Secretary himself'would have the responsibility, and presumably could delegate functions without the buirdeniof creating a new and~ separate bureaucracy.

Memorandum for The Tobacco Institute December 15, 1981 Page Two There would be established no "'private right of action" for enforcement of the labeling requ,irements under the Senate bill.. Therefore, the harrassment of private litigation against manufacturers for technical violations of' the Act would' niot occur under the Senate bill. The Senate bill, like existing law, exempts export cigarettes from labeling requirements. And'the Senate bill retains the.existing penalty of $10,000 for violations of the cigarette labeling laws, rather than increasing such penalty ten-fold, as does the House bill. On the other hand, the Senate bill would require all cig~airette~ manu~~f~~ac~ture~r~s t~o~ inff'o~rmFTC a~~md'~ HHS'~~ o~~f all chemical ad~~dit~ives,u~se~d in su~c~himanufactuire~,~ and the~~ qua~nt ti ~ of' each additive used. The information so provided would be considered a trade secret, and both agencies would be prohibited ffromm releasing it. II. Interagency Committee on Smoking andiHealth The Senate bill would establish a statutory "Interagency Committee on Smoking and Health,," with representatives from a broad range of institutes and agencies withinigovernment. The Committee would~meet at least four times per year. The principal antismoking functions would b!e the direct. responsibility of the Secretary of HHS, under the terms of the Senate bill. An, annual report to Congress would be required. Although ainew bureaucracy with vested interests in antismoking campaigns would not necessarily be creatediund'er the Senate bill, the fact is tha~.t the Secretary wouldihave authority, subject to the budget and appropriations processes, to initiate and' maintain aggressive, costly antismoking, programs. The open-endied nature of speridingi authority for such programs is incorporatedl in the Senate bill, no less thianiin the House companion. - III. Cigarette LabeTing 0, ~ The principal assertions in the five proposed rotating ~ labels in the Senate bill are attributed to the Surgeon General, Q~j ~

c Memorandum for The TobZacco Institute December 15, 1981 Page Three rather than stated as absolute fact. This may be viewed as a softening of'the approach contained in the House bill. Nevertheless, the "shock effect" of the labels is the principal purpose of the legislationi, andlthat fact should not be ignored in any analysis of its terms. Export cigarettes would not be required to be labeled, and doemstic consumption would be on a fifteen-month rotation,, instead!of a twelve-month basiis as under the House bill. The penalties for violation of the cigarette labeling requirementse are not changed from existingilaw. IV. Chemical Additives f Um~d'ertheterms of the Senate bill, the, c~igaretteimanufacturers would be required to provide the Federal Trade Commission and the Department of Health and Human Services with. "a complete list"'of each chemical additive used in the - manufacture of"such, cigarettes"' andth~equantityofe~ach~ add!itive used. One must assume that this requirement would be appliedion each brand of cigarettes, and'a composite filing by each manufacturer for the brands it markets wouldinot be sufficient. The requirement for disclosure of chemical additives would'' be applied not only to domestically-prod'uced cigarettes, but also to imported' products. I's it practical to impose suchia requirement on a foreign manufacturer, especially when the list of chemical additives used, and the quantity of each additive used, is a closely-held' trade-secret? In practice, it probably would be impossible to maintain the confidentiality of chemical additives used if the infarmation, is turned~ over to the FTC'and HHS. Although the bill attempts to maintainiconfidentiality, only one antismoking zealot would be needed inleither agency to leak the information to the press. Because it would not be unlawful for Jack Anderson to publish allist of chemical additives leaked tolhimi by a bureaucrat -- and probably could not be made unlawful for him to so publish -- this provision of' the Hatch/'Packwood bill may be the most troublesome of all.

C Memorandum for The Tobacco Institute December 151, 19'81 Page Four. V. Conclusion It may be that antismoking legislation drafted~by conservative Senators is more alanglerous to the industry than such legislation draftediby liberal reformers. On its face, th~e~ Se~nate~ bi11~ appe~ars, muc~h~ more ~ restrain~ed~,, much more balanced, than the House companion. Therefore, more Members'of Congress mighit be persuaded to cooperate 1n the approval of the Senate bill as a"compromise"' and as a"'watered down" version of the House legislation. Opposition to the H'atch/Packwood bill could extendibeyond Senators friendly to thie industry if'the Senate were to view this legislation as aidangerous precedent. It should never be considered the role of government to wage propaganda campaigins against the lawful use of lawfully distributed and sold products. If this industry falls to such aicampaign now, which industry will be next as government continues its effort to mold the personal habits andllifestyle of individual citizens?