Tobacco Documents Online

Senator Edward M. Kennedy (D-MA) convened the Committee on Labor and Human Resources before a standing-room-only audience this morning to hear testimony on his bill, S. 1883, the "Tobacco Product Education and Health Protection Act of 1990." Five panels comprising nine witnesses -- including major congressional sponsors of anti-smoking legislation -= testified before the Committee. Only two of the witnesses, representing The Tobacco Institute and the Freedom to Advertise Coalition, opposed the bill. A witness list and copies of available testimony are attached. Of the 16 members of the Committee, Chairman Kennedy was joined at the outset only by Sen. Orrin G. Hatch (R-UT), who left after an hour. Sens. David F. Durenberger (R-MN) and Christopher J. Dodd (D-CT) also sat in on a portion of the hearing. Media coverage was extremely heavy. All major broadcast and print outlets attended, many leaving after the testimony of Secretary of Health Louis W. Sullivan. Tobacco Institute media relations staff was on hand to explain the industry's positions with the press and to provide information. A TI spokesperson is scheduled to do a live interview on NBC Nightly News tonight, following that network's coverage of the hearing. In his opening remarks, Chairman Kennedy called smoking "public health enemy number one in America today." He described S. 1883 as "a realistic attempt to provide greater federal leadership in dealing with [theJ problems" of tobacco use. Kennedy also emphasized in his opening statement that his legislation "is not aimed at tobacco growers or tobacco-producing states, or the thousands of decent hard-working Americans who earn their livelihood by raising tobacco."

Hatch's opening remarks stressed the escalating "costs" incurred by those who smoke, saying that better public education was needed, especially among young women, minorities and the less educated. He applauded regional, state and local efforts to restrict smoking. He also had a "message to the tobacco industry" that there will be legislation moving through Congress on tobacco education and regulation. The first panel consisted of testimony from Sens. Bill Bradley (D-NJ) and Frank Lautenberg (D-NJ) and Rep. Richard J. Durbin (D- IL). Lautenberg called for stronger congressional measures to keep children from starting to smoke. "If we saw a 10-year-old child holding a gun to his head, surely we'd intervene to save that young child's life," Lautenburg said. "We should have the same reaction when it comes to our kids smoking cigarettes." Bradley suggested that S. 1883 go "one step further" and add a provision to deny deductibility of advertising expenses for tobacco companies. This would save more than $1 billion annually that could then be earmarked for anti-smoking education, he noted. "There is no constitutional right to a tax deduction," said Bradley. Branding tobacco "as insidious and deadly as crack, assault rifles and AIDS," Durbin testified that S. 1883 was especially timely in light of the tobacco industry's increasing vulnerability on Capitol Hill. He cited the recent passage of the airline smoking ban -- spearheaded by Durbin in the House and Lautenberg in the Senate -- as proof that the "well-heeled, muscle-bound tobacco lobby is not invulnerable." Durbin also called for an increase in the cigarette excise tax as a way to discourage smoking and raise revenue that could be earmarked for anti-smoking education. The hearing's star witness was Dr. Louis W. Sullivan, Secretary of the Department of Health and Human Services (HHS). Consistent with his recent public attacks against the tobacco industry, Sullivan called for increased "corporate responsibility" by tobacco companies and advertising agencies to stop the targeted promotion of smoking among the young, women and minorities. Sullivan also announced that today he delivered to Congress the National Status Report on Smoking and Health, which provides smoking-related mortality and economic costs for each of the 50 states. "The economic costs attributable to smoking averaged $221 per person across all 50 states," Sullivan claimed.

However, while applauding S. 1883's objectives, Sullivan pointed out that anti-smoking activities already under way or in the planning stages at HHS "serve the same purpose and accomplish the identical goals as those set forth in S. 1883." The Administration therefore believes that the proposed legislation is unnecessary, Sullivan concluded. However, in response to questions, Sullivan said he believed that additives should be disclosed to consumers. in follow-up questioning, Kennedy noted his difference with Sullivan about whether anti-smoking advertising should be paid or donated as public service announcements (PSAs) by the broadcast media. While Kennedy asserted that PSAs were not aired during prime viewing hours, Sullivan pointed out that money spent on paid advertising could be better spent on other anti-smoking efforts. The next witness (testifying out of order due to scheduling constraints) was Sister Mary Madonna Ashton, Minnesota's commissioner of health and chairman-of the Association of State and Territorial Health Officers' Committee on Tobacco or Health. Ashton lauded S. 1883 as an "excellent proposal" whose comprehensive approach comprises strategies that will help coordinate state anti-smoking efforts. Representing Doctors Ought to Care (DOC), Dr. Alan Blum of Baylor College of Medicine in Houston presented a selection of video clips showing cigarette commercials and counter-advertisements from the 1950s and 1960s, as well as examples of sports sponsorship by tobacco companies. Blum described DOC's strategy of ridiculing cigarette brand names and advertising images in an effort to "laugh the pushers out of town." Testifying on behalf of The Tobacco Institute, former Rep. Charles O. Whitley repeated Dr. Sullivan's assertion that S: 1883 would duplicate current anti-smoking efforts while imposing additional, unnecessary regulation. He also noted that every legal product targets customers in its advertising; there is no reason the cigarette industry should do differently. "At some point," Whitley concluded, "any industry faced with the prospect of still further regulation is entitled to say 'enough.' We clearly have reached that point with the regulation of tobacco products." Kennedy badgered Whitley with a series of hostile questions designed to cast doubt on the industry's adherence to its voluntary advertising code. Whitley replied to all questions by

asserting that the tobacco industry does, indeed, adhere to that code, as do the advertising agencies employed by the industry. Kennedy followed up by asking why the tobacco industry had not legally challenged the fact that some localities have banned advertising despite the federal preemption. Whitley replied that although such bans clearly violate federal law, the industry has not yet determined the best way to respond to them. Kennedy then argued with Whitley about additives to tobacco. "Is your testimony that there are no cancer-causing additives to tobacco? Why not let the Secretary of Health determine that?" Kennedy asked. "He has," replied Whitley, referring to the list of additives submitted to HHS. Whitley also emphasized that the industry intends to comply with the recent request from HHS to quantify the additive list. Questions to Whitley from Dodd centered around the effectiveness of the tobacco industry's voluntary advertising code and the nature of addiction. "You are sending the wrong message if you put cigarettes in the same category as mind-altering drugs," Whitley warned. Tom Boggs, representing the Freedom to Advertise Coalition, requested that the Committee not act on S. 1883 until it gave further consideration to the bill's provisions regarding advertising and First Amendment implications. The section of the• bill allowing states to restrict or ban tobacco advertising, Boggs stressed, would "suppress the very health message Congress hopes to convey." When asked by Kennedy whether he believed that the tobacco industry was adhering to the letter and the spirit of its voluntary advertising code, Boggs answered, "Yes. But the law is very unclear regarding what is considered advertising." Though Floyd Abrams, a First Amendment attorney appearing on behalf of The Tobacco Institute, was not permitted to testify, he did interject in response to a question from Dodd regarding the right to ban the advertising of a legal product or activity. "Courts have varied on how much First Amendment protection is afforded," Abrams explained, "but the reasons we protect commercial speech are still valid." He advised Congress to av%id attempts to ban advertisment of legal activities, "unless you want a major First Amendment challenge."

The final panel consisted of testimony from Scott D. Ballin of the Coalition on Smoking OR Health. Ballin endorsed S. 1883 on the grounds that more education and regulation of smoking is needed. "To borrow one of the industry's own phrases," Ballin remarked, "Enough is enough." In closing, Kennedy predicted that later this year, his committee would hold hearings on the "insidious" trade activities of U.S. tobacco companies overseas.