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| TOBACCO TUSSLE | |
 March 21, 2000 
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First in general terms, let's get some reaction. Mr. Parrish, what did you think of this decision?
JIM LEHRER: Dr. Kessler, what did you think of the decision?
JIM LEHRER: But you weren't disappointed that they said the FDA did not have the right to regulate tobacco? DAVID KESSLER: I certainly would have liked to have one more Justice. It would have changed the outcome. It would have saved hundreds and hundreds of thousands of lives. I mean, if that were the case. I think there is no question that we're in a very different place than where we were five years ago. I mean, Steve Parrish has said that he favors regulation. Tough laws would do that. Back five years ago, remember that image of the seven CEO's saying it was not an addictive product. We've now come to grips with the fact when you look at this product, when you look at a cigarette that it is an addictive drug. If it's an addictive drug, then FDA should regulate it. Congress should enact that legislation. JIM LEHRER: Mr. Rein, how do you read this decision? Do you read it in the same way?
JIM LEHRER: What about Dr. Kessler's point, he put the emphasis not on the 5-4 but on the fact that they all agreed that tobacco was a health threat? BURT REIN: Well, I think that, you know, the FDA had made findings which were of record and I don't think the court was in the business of assessing public health threats. It was accepting what the FDA had found. We weren't contesting that issue. The issue was not is this a public health problem. The issue was whether Congress had delegated to the Food & Drug Administration the tools to resolve that issue. I think the court has correctly said, no, that delegation hasn't been made. If it needs to be made, it can be done in a sensible, congressional dialogue. JIM LEHRER: Mr. Myers?
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| Americans' most dangerous health threat? | |||||||||||||||||
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JIM LEHRER: Mr. Parrish, what do you say to this? Do you acknowledge that... Do you agree with Justice O'Connor and the majority, the majority that ruled in your favor in terms of the FDA's participation, that cigarette smoking is the single most dangerous health threat to Americans? STEVEN PARRISH: Well, it certainly is a product that causes serious
harm in a lot of people who use it, and it certainly is an addictive
product. I mean, Dr. Kessler is right. I've acknowledged those two points
before. And it seems to me that what the court has given us today, all
of us on this show as well as others, is an opportunity to sit down
and say, okay, let's assume that Justice O'Connor is right and that
this is a significant public health issue. JIM LEHRER: So, Dr. Kessler, your position is that all it would take to do what you wanted to do and what the FDA did is for Congress now to just authorize it. That would fit within what the Supreme Court did today? DAVID KESSLER: It could be done tomorrow, Jim. In fact, the Congress in the last session, Senator McCain introduced a bill, the FDA portion of which passed almost unanimously. It could be done tomorrow. And it should be done. I really do believe that the Supreme Court having set the stage, saying it's the number-one, the most important public health issue, that Congress really has to act now. JIM LEHRER: And Mr. Parrish, you would sit with... you say you would sit with anybody to work this thing out. The industry is ready to be regulated in some fashion. Is that what you're saying?
JIM LEHRER: They got shot down. STEVEN PARRISH: I don't want to make that mistake again. JIM LEHRER: Yes.
JIM LEHRER: You would support that? MATTHEW MYERS: We would support that law. JIM LEHRER: Go ahead. MATTHEW MYERS: Dr. Kessler said he would support that law. And we're prepared to sit down and help make that the law before another generation of kids become addicted. STEVEN PARRISH: Matt, you and I agreed in June of 1997 to line up behind a proposal and your agreement to support that proposal evaporated very quickly. The proposal that you're talking about was a dramatic change from what was agreed to by the industry and attorneys general and others in June of 1997. Because as I recall what was ultimately proposed, it still gave the FDA the authority to, in effect, ban the sale of the product to adults. We won't accept that.
STEVEN PARRISH: I agree with that. JIM LEHRER: Let's go from the Supreme Court's decision. Mr. Rein, could Brown & Williamson Tobacco sit down with Congress and Mr. Myers and Dr. Kessler and everybody else and work out a deal, do you think, now, in light of what the Supreme Court did today? BURT REIN: Well, I think that Brown & Williamson has been open
to dialogue publicly for the last six months. I think that tobacco is,
as the Supreme Court acknowledged, a different kind of product. It isn't
just going to... the kind of product you would thrust under an existing
law and say this is the deal needs to be considered on its own and Mr.
Parrish said there are multiple interests involved. |
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| The FDA as regulator? | |||||||||||||||||
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who is the regulator. It's the question of what are the standards of regulation. JIM LEHRER: What is it that you would agree to in terms of regulation? What is there about tobacco and tobacco smoking that you would have no problems with regulating? BURT REIN: I think we've said the whole problem with youth smoking is very much regulated at the state level. I think we've made clear that measures designed to ensure that smoking is an adult activity, not a youth activity, is important to us. I don't think that we've, you know, come up with a legislative package of our own. And as Mr. Parrish said, you have to consult an awful lot of interests before you come up with the right decision.
JIM LEHRER: So, that's the only permissible, from your point of view, if you sat at a table with these gentleman and others, and the issue was, okay, now what can we agree to as far as regulating tobacco is concerned, it would have to be done by the Food and Drug Administration from your point? DAVID KESSLER: Absolutely. JIM LEHRER: Mr. Parrish. STEVEN PARRISH: I have no problem with the FDA regulating tobacco in the context of a reasonable regulatory system if that's what the members of Congress decide because they are the ones who set the priorities for agencies like the Food and Drug Administration. I'm not to go to be so presumptuous as to tell them that should be FDA. But if that's what they think, then FDA regulation is fine with me. DAVID KESSLER: That's an enormous step. JIM LEHRER: What is? DAVID KESSLER: The fact that Philip Morris, I mean, is sitting here and saying that cigarettes should be regulated by the Food and Drug Administration. We've come a very long way. We really can solve this. Congress needs to act.
MATTHEW MYERS: I think the key is that public health has to dominate the discussion, not narrow economic interests. And when we talk about FDA's action, it should have the same kind of authority that it has over other products, not weakened authority so that it's unable to regulate, for example, the harmful ingredients in this product just like it can regulate the harmful ingredients in other products. JIM LEHRER: Mr. Rein, when you hear Mr. Parrish hear what he just said, is your reaction the same as Dr. Kessler's, hey that's a big step that Mr. Parrish is making on behalf of Philip Morris? BURT REIN: I won't speak for Mr. Parrish. JIM LEHRER: No. No. I'm asking you to react to what Mr. Parrish said. BURT REIN: I understand. I think -- as I said before, the question of what particular group of people wields the regulatory power is less important than the law that controls the administration of that power. And I think that there's a difference between saying the Food and Drug Administration as a collection of individuals or a government agency with certain expertise and then assuming that the Food, Drug and Cosmetics Act applies in all its particulars. What the court was saying today is the Food, Drug and Cosmetics Act was never viewed by Congress as a particularly appropriate tool for the regulation of tobacco products. So it's fashioning the regulatory apparatus that I think ought to be our first concern before we start... And it has to be different. JIM LEHRER: A new law that says this is how cigarettes and tobacco will be regulated? Not under existing regulations of the FDA but new ones, right?
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| Time for a new law? | |||||||||||||||||
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JIM LEHRER: Do you have a problem with that, Dr. Kessler?
JIM LEHRER: Mr. Parrish, do you have a problem with doing it that way? STEVEN PARRISH: No. I think what we see here is we have a lot of common ground and a real opportunity to move forward as long as we don't, as you said earlier, get caught up in pointing fingers about what's happened in the past and keep our eye on the ball and keep trying to move it down the field. JIM LEHRER: Mr. Myers? MATTHEW MYERS: It seems to me the critical question will be the devil in the details. FDA has got to have meaningful authority to protect the American public, and that's got to be the top priority. We have to move past the glittering generalities so that we can be sure that the FDA has the same kind of authority for tobacco that it has for other products to protect the American public. Given the Supreme Court's conclusion, the tobacco presents this nation's number-one threat to our nation's public health; we deserve no less. JIM LEHRER: Gentlemen, thank you all four very much. |
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JIM
LEHRER: Now, some reaction to today's ruling. Steven Parrish is senior
vice president for corporate affairs at Philip Morris Companies. David
Kessler is dean of the Yale University School of Medicine, and he is
the former commissioner of the Food and Drug Administration. Matthew
Myers is president of the Campaign for Tobacco Free Kids, a public health
group. And Burt Rein is a partner in the law firm Wiley, Rein, and Fielding;
it represents the Brown & Williamson Tobacco Company. 
STEVEN
PARRISH, Philip Morris Companies: Well, obviously we were pleased that
the Supreme Court agreed with us that cigarettes should not be regulated
as a pharmaceutical product, which was what the proposal was. But in
some ways more important than that, I see what the court did today as
an opportunity for us along with others to go to members of Congress
and have a discussion and a dialogue about, okay, now we have guidance
from the Supreme Court. The Supreme Court has told us what the law is.
Now let's figure out what's a tough, common sense, reasonable way to
regulate tobacco products going forward. That's what I'd like to see
us do.
DAVID
KESSLER, Former Commissioner, FDA: A very close decision and the Supreme
Court said this is the most important public health problem in the nation.
If there was any agreement today, it's that the word Congress was written
all over this opinion. Congress has a moral responsibility to act now.
BURT
REIN, Counsel, Brown & Williamson Tobacco: We're pleased with the
decision. I think we read it as, in Justice O'Connor's words, a common-sense
decision. She looked at all the evidence of congressional intent. She
realized that this is an issue that has been of great public consequence
for 50, 60, 70 years and she could not see and find her way to seeing
that the Congress of the United States had ever authorized a federal
agency, rather than the Congress itself, to deal with it. We think that
decision was right. That's the position we advocated all along. So we're
quite pleased with the outcome both in terms of the specific outcome
and in terms of the philosophy that courts will not allow agencies to
expand their jurisdiction and to allow legal interpretation to become
a substitute for reasonable consideration in the Congress. And we are
open to dialogue. And we said we're open to reasonable dialogue with
the health community, with legislators. We think now there's a foundation
for a sensible dialogue. 
MATTHEW
MYERS, Campaign for Tobacco-Free Kids: We were disappointed. We think
the 5-4 majority was frankly wrong, that the only reason FDA hadn't
acted earlier was because the tobacco industry had systematically hidden
the truth from the American public and the federal government. But the
important issue was not the 5-4 vote but the 9-0 vote that said that
tobacco poses, and to quote Justice O'Connor, the most significant public
health threat facing our nation today. This shines the spotlight specifically
on Congress. Unless Congress acts now and acts decisively, that public
health threat will only continue to grow. You know, if today's a normal
day, 3,000 kids will become regular smokers; 1,100 Americans will die.
What we need is strong regulation by the FDA not only covering sales
to children, which are critically important, cutting back on the marketing
of the tobacco industry which has actually grown since they settled
with the states last year, not shrunk. But we need somebody for the
first time to put tobacco on the same playing field as other products.
You know, if tobacco was a cake and they put an ingredient in, they'd
have to test it for safety first. Only tobacco has the exemption that
allows them to put things in their products without any safety testing,
without any regulation whatsoever. It's time for Congress to act. And
if it doesn't, the American public should hold it responsible. 
Let's
assume that we have a harmful product. Let's assume that it is a legal
product and that there would be profound consequences to banning that
legal product, and let's try to sit down and figure out what is the
right way to regulate it going forward. Ultimately this is the decision
of the Congress of the United States. I am not going to be so presumptuous
and I think even arrogant to tell Congress what it ought to do, but
I certainly am very interested in coming down and meeting with members
of Congress in both parties and talking about what I think is a common-sense
way to move forward. 
STEVEN
PARRISH: Well, I'm saying on behalf of Philip Morris that we feel that
way. And I'm willing to sit down with Dr. Kessler or anybody else. But
the most important players in this are the members of Congress. And
another thing I think we have to keep in mind is that if there are going
to be others who are impacted by whatever the Congress decides-- whether
it is operators of vending machines or retailers or others-- we sure
need to reach out to those people and hear what their points of view
are on this because a few years ago, we made a very specific proposal
to the Congress without consulting Congress in advance, without consulting
with some of those other groups, and Congress, for very good reasons
didn't like that proposal and a lot of other groups didn't like that
proposal. 
We're
prepared to talk it through and consider those interests. I don't think
that Brown & Williamson is interested in having a mega bureaucracy
built up around tobacco regulation. It's very important to Brown &
Williamson to deal with the problem of youth smoking. We've been trying
to deal it with on a private basis, we've been trying to deal with states,
we've dealt with the advertising issues. We're very much open to a dialogue
but we think that the problem has to be solved independently with some
blanketing of the pre-existing regime.
JIM
LEHRER: Do you see it as a big step, Mr. Myers? 
BURT
REIN: Right. And I think the court has amply demonstrated that if you
try to take any pre-existing law which is shaped for other considerations
and just clamp it down on tobacco products you don't represent the full
diversity of views and interests. 
DAVID
KESSLER: It can and should be passed by Congress.