Tobacco Documents Online

July 5, 1990 MENiORANDOM Following is an analysis of the "Tobacco Control and Health Protection Act" (H.R. 5041) introduced on June 14 by Representative Waxman. SUMMARY H.R. 5041 would repeal the Federal Cigarette Labeling and Advertising Act, Sec. 3 of the Comprehensive Smoking Education Act and the Comprehensive Smokeless Tobacco Health Education Act of 1986. In the place of this existing leg- islation, the bill would -- establish establish new package and advertising warning requirements even more extreme than the Canadian requirements; •: . limit tobacco product-adver.tising and promotion even more severely than the Luken and Synar bills (H.R. 1250/1493); • withhold federal block grant funds from states that do not implement the Sullivan model sales-to-minors bill; - provide for ingredient regulation and disclosure and the establishment of a Center on Tobacco and Health along the lines of the Bates and Kennedy bills (H.R. 3943 and S. 1883). • transfer from the FTC to HHS respon- sibility for overseeing warning rotation and "tar" and nicotine disclosure in adver- tising and reporting to Congress on ciga- rette advertising and promotion. Existing preemption would be replaced with a prohi- bition against warning requirements imposed by federal agencies

2 or state statutes or regulations "other than (as] required by or under this Act." Preemption of tort claims based on state common law or statutory law would be eliminated. DISCUSSION 1. SHORT TITLE (Sec. 1). 2. FINDINGS (Sec. 2). 3. WARNINGS (Secs. 3-4). Secs. 3(a) and 4(a) would replace the four existing warnings on cigarette pack- ages and in cigarette advertising under the Federal Cigarette Labeling and Advertising Act with nine new warnings (slightly modified for billboard advertising). These new warnings, which would not be attributed to the Surgeon General or identified as government warnings, would be as follows: WARNING: Cigarettes Kill WARNING: Cigarettes Cause Lung Cancer WARNING: Cigarettes Cause Emphysema WARNING: Cigarettes Cause Heart Disease WARNING: Tobacco Is an Addicting Drug WARNING: Quitting Cigarettes Will Improve Health WARNING: Cigarettes May Cause Fetal Injury or Miscarriage WARNING: Cigarette Smoke is Harmful to Nonsmokers O WARNING: Cigarettes Cause Stroke w The format requirements for the warnings resemble ph those of Canada's To bacco Products Control R 1 t' In egu a ions . "P ~~

3 some respects, they are even more extreme. For example, the bill would require the word "WARNING" to be printed in red letters. On packages, the warnings would have to appear at the top of the front and back panels of the pack, account for at least 25 percent of the panel and appear in white- on-black or black-on-white within a contrasting border. Sec. 3(b). In advertising, the warnings would have to appear at the top of the advertisement, account for at least 20 percent of the advertisement and appear in white-on-black or black-on-white within a contrasting border. Sec. 4(b). The nine warnings would rotate quarterly under plans submitted by the manufacturers and approved by the Secretary of Health and Human Services (not the Federal Trade Commission). Warnings in billboard advertisements would be rotated "annually or whenever the advertisement is changed, whichever occurs first." Sec. 4(c). The definition of "advertisement" under the bill is so broad that, literally read, a manufacturer could not utter the name of one of its products in any context whatsoever without having to provide one of the required warnings. See Sec. 15(1)(D),(E).1/ :;r 1/ The term "advertisement" is defined in Sec. 15(1) to mean -- (footnote cont'd)d

4 4. VIDEO AND AUDIO MEDIA (Secs. 5, 6(d)). Sec. 5 would reenact Sec. 6 of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. S 1335), which bans cigarette advertising in any medium of communication subject to the jurisdiction of the Federal Communications Commission. Sec. 6(d) would ban cigarette advertising "on any audio tape, audio disc, videotape, video arcade game, or film." 5. ADVERTISING AND PROMOTION (Sec. 6). H.R. 5041 would limit tobacco product advertising to black text on a white background and a picture of the package and would ban human or cartoon figures from packages. No "tobacco product trademark logo or symbol" could appear "in or as (footnote cont'd) "(A) all newspapers and magazine advertisements and advertising inserts, billboards, posters, signs, decals, banners, matchbook advertising, point- of-purchase display material and all other written or other material used for promoting the sale or consumption of tobacco products to consumers, (B) advertising promotion allowances, (C) utilitarian items, (D) any reference to the brand name of a tobacco product, and (E) any other means used to promote the identification or purchase of tobacco products."

- 5 - part of" an advertisement. Sec. 6(a).?/ The bill arguably also could be construed as intended to prohibit manufacturers from including "tar" and nicotine information in cigarette advertisements, nullifyingg the 1971 voluntary agreement with the FTC. Sec. 7(a)(1) would prohibit -- "any representation with respect to health and safety, including representations con- cerning the level of or removal, reduction, or addition of ingredients, tar, nicotine, carbon monoxide, filters, or any other mechanism or device."3/ 2/ The term "trademark" is defined in Sec. 15(11) as -- "any word, name, symbol, logo, or device or any combination thereof used by a person to identify or distinguish such person's goods from those manufactured or sold by another person and to indicate the source of the goods." The bill does not on its face preclude "logos" or "symbols" on packages (see Sec. 6(c)), and a package bearing such "logos" or "symbols" presumably could be pictured in an advertisement under the bill. Similarly, the bill would "grandfather" packages containing pictures, figures, fac- similes or cartoon figures in use prior to January 1, 1984 (ibid.), and such packages presumably could be pictured in an advertisement. As discussed below, however, the bill would authorize the Secretary of Health and Human Services to require additional warnings and other information that would preempt all available space. The term "ingredient" is defined in Sec. 15(6) as "any substance the intended use of which results, or may reasonably be expected to result, directly or indirectly, in its (footnote cont'd)

6 Such a "representation" could not be included in an advertisement unless the Secretary of Health and Human Services has determined that the representation is "signi- ficant in terms of affecting health and safety and is based upon significant scientific agreement." Sec. 7(a)(2). The term "representation" is defined in Sec. 15(7) to mean "any statement, reference, or claim which us (A) expressed or implied, (B) direct or indirect, or (C) oral, written, or printed in graphic form or in any combination of such forms." H.R. 5041 would ban tobacco product advertising in or on sports facilities, on sporting equipment, on toys and within 1000 feet of any school attended by students under the age of 21. Sec. (6)(a)(3). It would ban tobacco product sampling (including redemption of coupons for free samples), brand-name event sponsorship, use of tobacco product trade- marks on nontobacco articles and paid product or advertising placement in movies, music videos, television shows, plays, video arcade games, etc. Sec. 6(b). The bill includes a provision specifying that the requirements and prohibitions concerning advertising and promotion extend to nontobacco products or services of (footnote cont'd) becoming a component or otherwise affecting the characteristics of any tobacco product."

7 "related companies or licensees" of a cigarette manufacturer or "any person acting with the concurrence or acquiescence of" a manufacturer. Sec. 6(e). 6. CONSTITUENT/INGREDIENT DISCLOSURE AND REGULATION REQOIREMENTS (SEC. 7). H.R. 5041 would require manufacturers to provide the Secretary of Health and Human Services (not the Federal Trade Commission) with a list of the levels of "tar," nicotine, carbon monoxide and other tobacco smoke constituents on a brand-specific basis. Sec. 7(b)(1)(A).-Y In addition, H.R. 5041 also would require tobacco product packages to state "the ingredients of the product in descending order of prominence." Sec. 7(b)(1)(B). The bill would not protect proprietary ingredient information from disclosure to the public. The bill would repeal Sec. 7 of the Federal Ciga- rette Labeling and Advertising Act (15 U.S.C. S 1337a) without enacting any new requirement that the manufacturers supply the Secretary of Health and Human Services with ingredient information. However, the bill would authorize the Secretary to issue such regulations as may be necessary for the imple- mentation of the legislation. Sec. 11(a)(1). The Secretary 4/ The term "constituent" is defined in Sec. 15(4) to mean "any element of tobacco or cigarette mainstream or sidestream smoke, including tar, nicotine, and carbon monoxide."

8 presumably could require the submission of such information by regulation under this provision. H.R. 5041 would authorize the Secretary to restrict or forbid the use of any ingredient found by the Secretary to be unsafe or to present increased risks to health to the consumer and general public: "If the Secretary determines that any ingredient other than tobacco in a tobacco product, either by itself or in conjunction with any other such ingredient, is unsafe or presents increased risks to health to the consumer or general public, the Secretary may require that the levels of such ingredient in the tobacco product be reduced or that such ingredient be eliminated entirely." Sec. 7(c). 7. ADDITIONAL INFORMATION (SEC. 8). H.R. 5041 would authorize the Secretary of Health and Human Services to require manufacturers to provide consumers with -- "additional information, by way of addi- tional labeling of packages, inserts, or other means, about the adverse effects of tobacco products. Such additional warnings may include directions for use and state- ments of contraindications." Sec. 9. Conceivably, the Secretary could attempt to assert his authority under Sec. 8 to require additional copy on cigarette packages and in cigarette advertising, thereby preempting space otherwise available to the manufacturer for copy of the manufacturer's own choosing -- perhaps leaving no room for anything other than the brand name, the

9 statutory warning, ingredient and constituent information and antismoking messages. 8. STATE MINORS LAWS (SEC. 9). H.R. 5041 would withhold federal funds under Subpart 1 of the Public Health Service Act, 42 U.S.C. SS 300x et seq. (Alcohol and Drug Abuse and Mental Health Services Block Grants) from any state that does not, in effect, adopt the Sullivan model bill. To remain eligible for such federal funds under the bill, a state would have to have in effect a law that-- (A) bans tobacco product sales to persons under 19; (B) requires tobacco retailers to carry state licenses; (C) bans cigarette vending machines in places where a person under 21 may lawfully enter unaccompanied by a parent or guardian, and requires the posting of minimum-age signs and photo I.D. proof of age in such places; (D) provides for civil penalties and license suspension and revocation; and (E) designates a state agency to issue retailer licenses and enforce the applicable state laws. 9. CANDY AND GUM CIGARETTES (SEC. 10). H.R. 5041 would amend the Federal Food, Drug and Cosmetic Act to define candy or chewing gum cigarettes as a"misbranded° food. No 10. ENFORCEMENT (SEC. 11). H.R. 5041 would give the Secretary authority to issue implementing regulations (without expressly requiring notice-and-comment rulemaking

as the March 21 discussion draft had done) and require the Secretary to recommend to the Attorney General "such enforce- ment actions as may be appropriate." Sec. 11(a)(1), (3). It also would give the district courts jurisdiction over civil actions to restrain violations of Secs. 3-10 [sic). Sec. 11(b)(1). A private right of action is conferred expressly on "[aJny interested organization," defined as "any nonprofit organization one of whose purposes, and a substantial part of its activities, include the reduction in the use of tobacco products." Sec. 11(b)(2). Any person who violates Secs. 3-8 [sic] would be subject to a civil penalty of $10,000 for each violation. 11. AUTHORITY OF SECRETARY; CENTER ON TOBACCO AND HEALTH (SEC. 12) H.R. 5041 would replace Sec. 3 of the Comprehensive Smoking Education Act (15 U.S.C. S 1341) with a new series of provisions authorizing the Secretary to engage in a variety of tobacco-related activities (including activities relating to "passive smoke"), directing the Secretary to establish within the Public Health Service a Center on Tobacco and Health and establishing an Interagency Committee on Tobacco and Health within the Center. The Center would be authorized, among other things, to conduct antismoking advertising campaigns (Sec. 12(B)(2)(E)) and to "coordinate discussions" with film- makers, etc., concerning the impact of the media on tobacco N O N W ta r ~ ~ m