JIM LEHRER: And now the regulation of tobacco.
“NewsHour” health correspondent Betty Ann Bowser begins our coverage.
MAN: The bill, as amended, is passed.
BETTY ANN BOWSER: Today’s Senate vote was a ringing endorsement for strict regulation of the tobacco industry. The 79-to-17 vote came after nearly a decade of debate.
SEN. MICHAEL B. ENZI, R-Wyo.: This bill is the only bill we will consider seriously that will make it difficult for kids to — to get tobacco and make it difficult for them to start smoking.
SEN. RICHARD BURR, R-N.C.: It is a myth for us to believe the authors of this bill that, by simply dumping this in the FDA, somehow, youth prevalence of smoking goes down. It is a joke. It is a joke. And the public health community has now recognized this.
BETTY ANN BOWSER: The new legislation, called the Family Smoking Prevention and Tobacco Control Act — would give the Food and Drug Administration greater authority than ever before to regulate the production, sale, and marketing of tobacco products.
Under the bill, the FDA could measure and restrict the amount of harmful chemicals, including nicotine, that could be put into tobacco products. It would also strengthen health warnings on product labels, ban the use of terms like light and low tar in advertising, and forbid the use of all flavorings, except menthol.
The bill was championed by Massachusetts Senator Edward Kennedy, but treatment for brain cancer has kept him sidelined. So, Connecticut Democrat Christopher Dodd has shepherded the bill through the Senate.
SEN. CHRISTOPHER DODD, D-Conn.: The FDA, the Food and Drug Administration, regulates not only all the food and other products that we ingest. It regulates cosmetics. But, for 50 years, the tobacco industry has successfully fought the ability to regulate tobacco products. And, yet, 3,000 to 4,000 kids start smoking every day in this country. Four hundred thousand a year die, as you already heard from Sherrod Brown.
It has been incredible to me that for┬ámore years than many to believe and count, we have had an industry that has gone basically unregulated.
BETTY ANN BOWSER: Philip Morris, the country’s largest tobacco maker, supported the bill, while its competitors opposed it, arguing that the new legislation would restrict the introduction of new less harmful tobacco alternatives and unfairly lock in Philip Morris’ market share.
In the Senate, North Carolina Republican Richard Burr led the opposition and offered a competing bill, which the Senate rejected on Tuesday.
North Carolina is the nation’s biggest tobacco producer, and home to the second- and third-largest cigarette makers, R.J. Reynolds and Lorillard.
Burr argued that the FDA was ill-equipped to regulate tobacco.
SEN. RICHARD BURR: That they have got the best and the brightest addressing food safety. Well, they have already flunked that several times just in the last three years, and we have all dealt with the consequences of it.
But think about what we are getting ready to do. We are getting ready to make it worse. We are getting ready to — to take an agency that has a seal of approval, a gold standard, and we are getting ready to say, OK, we want you to maintain that gold standard on drugs, and food, and biologics, and medical devices. But we understand you can’t hold tobacco to the same threshold.
BETTY ANN BOWSER: Efforts to put big tobacco under the regulation of the federal government came after a 1994 congressional hearing, when industry executives went on the record, in spite of all scientific evidence to the contrary, and said this:
SEN. RON WYDEN, D-Ore.: Do you believe nicotine is not addictive?
MAN: I believe nicotine is not addictive, yes.
MAN: I believe that nicotine is not addictive.
BETTY ANN BOWSER: In 1996, President Clinton, flanked by his then FDA chief, Dr. David Kessler, announced steps to regulate tobacco as a drug, on the grounds that, despite industry contentions, nicotine was, indeed, addictive.
Subsequent class-action lawsuits filed by state attorneys general against big tobacco resulted in some $200 billion in payouts to states, some of which funded smoking-reduction campaigns.
In 2000, the U.S. Supreme Court ruled that the FDA didn’t have the authority to regulate tobacco, making congressional action necessary. Until now, the tobacco lobby has successfully blocked any legislative attempts to more tightly regulate the industry. And former FDA Commissioner Kessler says the bill passed today has been a long time coming.
DR. DAVID KESSLER, former commissioner, Food and Drug Administration: We don’t know everything we should about how to regulate the product. But the great thing about this legislation is, it allows the FDA to gather that evidence of how to regulate the advertising, how to change the product, so that fewer and fewer people will smoke.
BETTY ANN BOWSER: A similar version passed the House in April. And President Barack Obama, who struggles with his own smoking habit, has said he will sign it into law.
Implications of the new law
JIM LEHRER: And to Judy Woodruff.
JUDY WOODRUFF: For differing views on the implications of the new law, we turn to Tommy Payne, executive vice president of government relations at Reynolds American, Inc. He has been with its subsidiary, R.J. Reynolds Tobacco Company, since 1988. And Michael Eriksen, professor and director of the Institute of Public Health at Georgia State University. He directed the Centers for Disease Control's Office on Smoking and Health from 1992 through 2000.
Thank you, both, for being with us.
And, Michael Eriksen, to you first.
You have favored this legislation. Tell us why you think it's a good thing that it's passed.
MICHAEL ERIKSEN, Institute of Public Health director, Georgia State University: Well, it's a very exciting event to have the Senate overwhelmingly approve FDA regulation of tobacco.
And the reason it's so exciting, it goes back at least 45 years. This is a copy of the first surgeon general's report, which was released on January 11, 1964. And, in that report, it concluded that cigarette smoking is a health hazard of sufficient importance to warrant appropriate remedial action.
And today's events are really the most substantial appropriate remedial action that's occurred on the scourge of tobacco use over the last 45 years.
JUDY WOODRUFF: Tommy Payne, your company, R.J. Reynolds tobacco, did not support this bill. Tell us why not.
TOMMY PAYNE, executive vice president of government relations, Reynolds American, Inc.: Well, good evening -- evening, Judy.
We had several concerns about this particular bill, not about the imposition of federal regulation over tobacco products. One -- one major concern that we had with this bill is its lack of inclusion of harm-reduction policies, which have been evolving over the last 10 years, in -- not only in the public health community, but in the tobacco-control community.
That and some of the competitive consequences that I think are inevitable from adoption of this bill were two of the reasons that we did not support this particular form of the legislation.
JUDY WOODRUFF: Tell us what you mean by harm-reduction policies.
TOMMY PAYNE: Well, if you think of a core issue of this, of how do we reduce the death and disease associated with tobacco use in our country, given the fact that the products are likely to remain legal, and that millions of Americans either won't or can't quit, there is a very serious train of thought, scientific, academic, and in the public health community, saying that, particularly for cigarette smokers, if they're not going to quit using tobacco products, how do you incent them to move down the continuum of risk to non-combustible products, tobacco products, or to nicotine-replacement therapy?
JUDY WOODRUFF: Well, let's...
TOMMY PAYNE: And so that is a -- I'm sorry.
JUDY WOODRUFF: I didn't want to interrupt you, but I want to -- I do want to give Mr. Eriksen a chance to respond to that.
MICHAEL ERIKSEN: Well, in some ways, I agree with Mr. Payne, is that -- in that our mutual goal is to reduce smoking.
The inhalation of combusted tobacco leaves is what causes cancer, emphysema, and heart disease. Nicotine itself is not deadly. It's not a totally safe product, but it is not the product that kills people.
The -- the problem with our current situation is that people smoke traditional cigarettes to get the nicotine, and, along with that, they get thousands of toxic substances, including dozens of carcinogens.
I think, with the FDA action, the Congress' action today, we will begin to change that. And we will begin to objectively identify how to make cigarettes and other tobacco products less harmful, so we don't have this toll, where smoking is the leading preventable cause of death in our country.
JUDY WOODRUFF: And, Mr. Payne, why isn't that a good thing?
TOMMY PAYNE: That is a good thing.
But, if you actually look at this form of the legislation, the Kennedy-Waxman legislation, I think it can be accurately described as a one-size-fits all for tobacco product categories.
I agree with Dr. Eriksen that, if you had a set of policies that were the basis for the regulation, where the degree of regulation was based on the degree of risk of the product, with cigarettes obviously being on the high end, and then prevention before that, down to other products, tobacco products and nicotine products, then, in essence, you would have a better bill for an agency to implement.
Divisions within the industry
JUDY WOODRUFF: Mr. Eriksen?
MICHAEL ERIKSEN: I think the bill that was passed today by the Senate allows for the introduction of less harmful products, if, in fact, these products are less harmful.
The -- I was very involved in the '90s with Commissioner Kessler in attempting to get FDA regulation at that time. And, at that time, the FDA operated under the rules of products having to be shown to be safe and effective.
In the current bill that was passed by the Senate today, they have changed the standard from safe and effective to appropriate for the protection of the public health. So, the FDA is working under the direction of making decisions and taking actions that will protect the public health.
And I'm confident, with the very, very strong public health leadership that is at FDA now, with Peggy Hamburg, Josh Sharfstein, who are both public health physicians, that they will lead an effort to meet that standard of making decisions to protect the public health. And that will allow for new products that are truly less harm, they will be allowed to be on the market, if they do cause less harm.
JUDY WOODRUFF: Let -- we just have a few minutes left here.
I want to come back to you, Mr. Payne, on this question that's been raised. They're -- the major tobacco company, the leading tobacco company in the country right now, Philip Morris, supports this legislation. They were in on the writing and drafting of this legislation.
Explain, if you would, in brief, the division inside the tobacco industry on this.
TOMMY PAYNE: Well, obviously, this bill has been debated in Congress or been -- been introduced and discussed in Congress for over a 10- or 12-year period.
I think that the -- the primary point of contention within the industry relates to some of the ability to communicate with adult tobacco consumers. And this bill goes a long way to eliminate many of the, arguably, protected-by-the-First-Amendment rights that you have to communicate with those consumers.
So, that's the basis for the contention within the industry.
Some are skeptical of the bill
JUDY WOODRUFF: And it introduces some very strict restrictions on advertising.
And, conversely, Michael Eriksen, those who are the -- the most fierce among the anti-smoking advocates say, the very fact that a tobacco company was in approving this, in their mind, makes them very suspicion of this, and they don't believe the legislation does enough.
MICHAEL ERIKSEN: It's true. This bill has been divisive among segments of the tobacco-control community. And I understand why.
It has to do with the distrust of the tobacco industry for their behavior over the last 50 years, as was recent -- as recently as last month, where the appeals court confirmed the finding that the tobacco companies engaged in racketeering and fraudulent behavior.
So, there is skepticism out there.
JUDY WOODRUFF: And...
MICHAEL ERIKSEN: But I think the final product of a -- strong leaders with a strong bill will begin to provide that appropriate remedial action that was called for 45 years ago.
JUDY WOODRUFF: One final word from both of you.
First, Mr. Eriksen, how will this change smoking habits in the country, in just a word?
MICHAEL ERIKSEN: It will begin to make smoking less glamorous and less appealing to young people by taking the imagery out of smoking.
JUDY WOODRUFF: And, Mr. Payne, same question. How will it change it?
TOMMY PAYNE: Well, if you look at how the CBO scored the Kennedy and Waxman legislation, it said that it would decrease smoking only two-tenths-of-1-percent annually.
So, I think we can do a better job than that. And that's why we oppose this form of the legislation.
JUDY WOODRUFF: Tommy Payne and Michael Eriksen, thank you both.
MICHAEL ERIKSEN: Thank you.
TOMMY PAYNE: Thank you.