Sticking Points: Debating the Tobacco Agreement
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MICHAEL MOORE, Mississippi Attorney General: We are here today to announce what we think is we know, we believe is the most historic public health achievement in history.
PAUL SOLMAN: After nearly three months of tense negotiations this spring between the state attorneys general and tobacco industry lawyers, on June 20th, a settlement was reached in which tobacco companies would pay $368.5 billion over 25 years for anti-smoking campaigns, the industry’s legal liability would be capped at $5 billion a year, and future class action lawsuits would be barred, the FDA would regulate nicotine and cigarettes, but only within certain restraints, and could not eliminate nicotine entirely for 12 years, and tobacco companies would have to reduce youth smoking by set amounts, or face financial penalties.
But the settlement didn’t settle anything. First, it has to become federal law passed by Congress and signed by the President. And today in Madrid, President Clinton commented on his staff’s review of the settlement.
PRESIDENT CLINTON: I have reached only one conclusion about the settlement in terms of what has to be changed. That portion that restricts the judgment–the jurisdiction of the FDA, in terms of limiting tobacco content in cigarettes or banning it outright, on nicotine content, or banning it outright, it seems to me is a totally unreasonable restriction.
PAUL SOLMAN: Also today a congressionally appointed panel of public health officials, headed by Former Surgeon General C. Everett Koop and Former FDA Chief David Kessler presented its proposal on tobacco policy and public health to Vice President Gore. Today’s proposal significantly differs from the settlement plan in several key respects. For example, the FDA should have the authority to regulate and eventually ban nicotine without any restrictions on its power; tobacco companies should suffer much stiffer financial penalties if youth smoking rates don’t drop; taxes on tobacco products should be dramatically increased; and no limitation on lawsuits.
PAUL SOLMAN: We have two public health advocates: Dr. David Kessler, as we just saw, is the former head of the Food & Drug Administration and currently co-chair of the advisory committee that issued today’s report; Matthew Myers of the National Center for Tobacco Free Kids worked with the attorneys general to negotiate the recent tobacco settlement. Gentlemen, welcome to you both. All right. Dr. Kessler, why was it necessary to come up with your own proposal when there’s already a settlement from Mr. Myers and others on the table?
DR. DAVID KESSLER, Former FDA Commissioner: The settlement that the AG’s put on the table were the result of negotiations with the tobacco industry, the tobacco lawyers. The report that was issued today was the public health community, 23 public health organizations, sitting down not with the tobacco industry and say, what are you willing to give up, but what should tobacco control policy be in this country?
PAUL SOLMAN: Well, you’re staking out a theoretical position, or this is an actual alternative to what they propose?
DR. DAVID KESSLER: It’s very real. It’s common sense, and it has provisions that we believe will reduce the number of people who smoke, especially on children.
PAUL SOLMAN: Mr. Myers, are you unhappy that Dr. Kessler came up with an alternative to your settlement proposal?
MATTHEW MYERS, Center for Tobacco Free Kids: No, we’ve been encouraging the public health community to come up with its own blueprint so that we could measure what we negotiated with the tobacco industry against it. We think it’s a very constructive document. We think the key now is to move forward–after all of this talk, not to develop and actually implement a comprehensive plan to reduce tobacco use in this country. If this report contributes to that and it gets both the President and Congress moving, acting, not talking, then this will be a positive step forward.
PAUL SOLMAN: Are you happy that he staked out or they staked out a tougher position than yours from a political point of view? I mean, after all, you’re negotiating; you’re trying to get something through Congress and through the President’s office; and are you happy that it’s tougher than yours?
MATTHEW MYERS: I think the key is to look at the specific provisions to figure where this report points out problems with the negotiated agreement with the tobacco industry. The real key is that we’ve got to do something, and the negotiated agreement with the tobacco industry provides a comprehensive plan to do the sort of things that David at the FDA said need to be done, drop youth access to tobacco, cut out advertising tobacco to kids, real strong public education, and real teeth and targets if they don’t reduce tobacco. The key is to know the two, to come up with something that can actually pass Congress so that when we come together next year, we have a national plan to drive down the number of our kids who start.
PAUL SOLMAN: Start smoking?
MATTHEW MYERS: Who start smoking.
PAUL SOLMAN: Okay. So let’s take them one at a time; the bullet points we just saw. Ban nicotine. What was wrong with their proposal? What are you proposing?
DR. DAVID KESSLER: Be able to regulate nicotine. One of the great public health victories over the last several decades most recently was the fact that FDA’s jurisdiction over nicotine was upheld in federal district court in North Carolina.
PAUL SOLMAN: You were very excited when you were here. You said it was a historic deal.
DR. DAVID KESSLER: It was very important, and there shouldn’t be limitations. We shouldn’t step back from what the FDA won.
PAUL SOLMAN: Okay. So why does the settlement limit the FDA’s authority?
MATTHEW MYERS: Our goal in the settlement was to try to construct a practical framework which would actually allow the FDA to do it. We provided funding for the agency that it doesn’t otherwise have. We provided for the creation of a scientific advisory board to study what to do. You know, one of the worst crimes would be if we began controlling nicotine levels without knowing how to do it. And we don’t yet today know how to do it. The goal here wasn’t to constrict FDA. And one of the things that Dr. Kessler’s done has been very helpful, is point out ways that they–that this settlement is flawed so that we can correct them to ensure that we know the best of the two.
PAUL SOLMAN: But are you worried about if you ban nicotine, they ban–or his former agency bans–that you’ll have a black market in nicotine? I mean, that’s one of the things that people have talked about.
MATTHEW MYERS: One of the things that we’ve tried to do in negotiations with the industry was to bring real common sense. You know, we technologically know how to eliminate nicotine today, but we can’t do it till we figure out how to solve the problem of 47 million Americans.
PAUL SOLMAN: Yes.
DR. DAVID KESSLER: But what happens if a safer alternative comes along?
PAUL SOLMAN: You mean, something that provides the kick of nicotine.
DR. DAVID KESSLER: That’s not addictive. We should have the ability, FDA should have the ability to require a safer cigarette. And you look at the proposed settlement, Matt’s correct. I mean, there are–there is language in the proposed settlement that was very well lawyered. It would make it almost impossible. There are a lot of legal hurdles, and they need to be eliminated.
PAUL SOLMAN: All right. What about kids stopping smoking, stiffer penalties you guys propose for kids stopping, getting the industry to have kids stop smoking, otherwise they have to pay more money, right?
DR. DAVID KESSLER: Absolutely. Absolutely critical.
PAUL SOLMAN: And why wasn’t their settlement okay?
DR. DAVID KESSLER: It wasn’t very significant. It was a few cents per pack. It was tax deductible. The industry really wasn’t going to change industry behavior.
PAUL SOLMAN: And the response to that.
MATTHEW MYERS: Without the settlement negotiation there would be no penalties on the tobacco industry if we didn’t meet youth targets. This is the first time in history that anyone has ever gotten the tobacco industry to agree. And the settlement would strip the tobacco industry of the lifetime profits it makes off of selling cigarettes to kids. That’s an historical step forward. Can it be strengthened? Certainly.
PAUL SOLMAN: Do you like the strengthening?
MATTHEW MYERS: And will we work with Dr. Kessler to strengthen it? Yes. What we’ve got to do is come up with a common sense way that will work, that will change the industry’s incentives to marketing to kids. And we think Dr. Kessler has contributed to that dialogue.
PAUL SOLMAN: I have a question for you. Are ads effective anyway? I mean, isn’t there an allure of illicitness that is part of why people start smoking? Certainly when I was a kid and I first had a cigarette, that was what it was all about.
DR. DAVID KESSLER: The advertising?
PAUL SOLMAN: Yes. I mean, how do you actually change that. Not the advertising. No, the excitement of, you know, doing something that you weren’t supposed to do.
DR. DAVID KESSLER: Sure. That is a very valid point. The advertising–everything we do, the industry does send, you know, positive messages. We really should reduce those positive messages. Look at the history of tobacco in this country. Look what that advertising has created. It created–women, I mean, didn’t smoke at the beginning of the century. And that was–it’s a manmade epidemic.
PAUL SOLMAN: Okay. So–
MATTHEW MYERS: That’s one of the keys to the agreement with the tobacco industry just at the time that, unfortunately, FDA’s authority over advertising is in question in the courts, this agreement ensures that we’ll be able to eliminate those forms of advertising that have the major impact on kids, but it goes on step further, and it does something that FDA couldn’t do. It provides a half a billion dollars a year to do counter advertising so that we can eliminate those very images. It’s exactly as David said when he first introduced this concept. We’ve got to make it harder for kids to buy tobacco products; we’ve got to eliminate the lure of tobacco products; and we’ve got to do fundamental public education to discourage kids. The agreement with the tobacco industry builds that framework. Now, what we’ve got to do is build on it to get something done.
PAUL SOLMAN: So, but you’re both on the same side. It’s just a question of him doing–you’re suggesting more be done, rather than less?
DR. DAVID KESSLER: Get the industry to have real incentives to do what’s not in their self-interest and to sell fewer cigarettes.
PAUL SOLMAN: Okay. The provocative point you made. Increase taxes by $2 per pack of cigarettes, federal excise taxes. Why?
DR. DAVID KESSLER: We know it works. We know it will reduce the number of young people who smoke.
PAUL SOLMAN: Because-
DR. DAVID KESSLER: Because we’ve seen the data. We know that reducing the price of cigarettes is a very effective way. We know, as Matt just said, that education is a very effective way, and we need to use the tools that will work.
PAUL SOLMAN: Okay. So 2 bucks a pack, great source of revenue.
MATTHEW MYERS: Ideally, $2 a pack is something that I would support in a minute if we could pass it. What I don’t want to have happen, however, is for us to set the bar so high that we never get anything enacted. What our goal is–
PAUL SOLMAN: I’m sorry to interrupt, but how skeptical are you of getting what he’s talking about enacted? Because it seems to me that’s an essential point here.
MATTHEW MYERS: There are very important suggestions in this agreement that I think are doable, and I think what we have to do is go through this agreement as carefully as people are going through the agreement with the tobacco industry and pick out those that will strengthen it that are doable, so that at the end of the day we have a real program to drive down tobacco use, not posturing, not rhetoric, a real program.
PAUL SOLMAN: Are you skeptical that what he’s got on the table, or what his people have on the table is not going to–not going to make it through Congress?
DR. DAVID KESSLER: I don’t think everything in that agreement is doable in this Congress. You know, if we look at the history and–
PAUL SOLMAN: $2 a pack for cigarettes?
DR. DAVID KESSLER: In the last two years this Congress didn’t hold a single hearing on tobacco, let alone pass a bill. Our goal is to pass something that will have teeth that will work, that will accomplish both of our mutual goals.
PAUL SOLMAN: Quickly. One more–no lawsuit limit. You suggest that they have a limit on lawsuits, no class action suits, and so forth, just very briefly, why.
DR. DAVID KESSLER: The most important thing is reducing the number of people, especially young people who smoke. Tell me how granting immunity achieves that goal.
PAUL SOLMAN: You want me to tell you. Why don’t you tell ‘em that.
DR. DAVID KESSLER: The answer is the way we’ll achieve that goal is a comprehensive plan. In return for limiting–
PAUL SOLMAN: In a comprehensive plan.
DR. DAVID KESSLER: In a comprehensive plan. In return for limiting the industry’s annual liability, we guarantee that the industry is going to pay $4 billion a year to compensate people, something that they’re not currently doing. If last year–if this plan was in existence last year, we’d have $4 billion more that would be available for victims than we had, than was actually paid.
PAUL SOLMAN: Well, I’ve been meaning to ask you, and this is the last question, I guess. Are you insisting that it’s your deal, this deal here, or no deal at all?
DR. DAVID KESSLER: No, absolutely not. There’s a White House review that’s underway. The President made a very important point today on insisting on FDA authority. We need to hear that White House review, and then, most importantly, it should be our elected representatives–it should be the Congress, not the tobacco industry, I mean, who’s dictating what should be in legislation.
PAUL SOLMAN: Okay, great. Thanks.