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Show Tobacco Legislation: Through the Thicket of Special Interests Senator Orrin G. Hatch to the Federal Food, Drug and Cosmetic Act, since it is hard to argue that tobacco products are in any way safe and effective, the critical tests for current-law regulation of drugs and medical devices. Ninth, the scope of the bill should be limited to tobacco-related activities. There will be strong pressure on both sides to expand the bill to fund other worthy or politically popular programs. However, I must caution that any attempts to broaden use of the funds beyond tobacco will dilute the effectiveness of the program and squander the opportunity we have to stop youth smoking. And tenth and finally, the bill should include establishment of a documents depository which will assist in the dissemination of information the tobacco companies have kept secret for years and greatly enhance the likelihood that plaintiffs will succeed in future litigation. I recognize that there is a great temptation to go with a "tax-and-spend" bill, and indeed many such bills have either been proposed or are on the drawing boards. In an interesting political footnote, such bills have been developed by both Republicans - who fear the "big government" criticisms that any new government initiative would entail - and Democrats - who fear a large initiative will ultimately fail to pass the Congress and thus want a "bottomline" bill that will punish the industry. The flaw in this logic is that you cannot tax away the companies' First Amendment rights, and therefore such an approach would not include important advertising restrictions which public health experts have stated should be a part of any comprehensive attack on youth smoking. A narrow bill is perhaps an easy political shot, but not the most effective public health attack. There has been widespread resentment in Congress at the idea of taking up a proposal which was entirely negotiated by outside parties. This is only natural. However, after considerable study of the issues posed by the tobacco settlement, many of us have come to the conclusion that it contains the basic structural framework for a program that can work. There has also been considerable resentment in the Congress about the idea of passing a bill that has been agreed to, or would be favorable to, an industry which has consistently lied to the public about the harmful nature of the products it is selling. I do not advocate such a bill. However, to be realistic, unless all the parties who were originally at the bargaining table and who made the proposed settlement pos- sible do not have some level of acquiescence to the bill, however reluctant, the fact is that we risk jeopardizing enactment of a major public health program which could do a lot of good for our society. Our goal should be a program that can be implemented now, not litigated for years. Let us not make the lawyers rich; let us stop kids from smoking. By necessity, this requires some measure of liability reform, the shape of which Congress needs to actively debate. With such provisions, we will lessen the possibility of a continued, unstable litigation environment with unpredictable funding streams for any new comprehensive program. By earmarking up to one-third of total payments we see the likelihood that people injured by smoking who prevail in court will be paid, especially with the information contained in the proposed document depository. Inclusion of limited liability will also decrease the likelihood that companies will merely seek the protection of a bankruptcy court to avoid financial responsibility. Bankruptcies could jeopardize funding, give the larger companies monopoly or near-monopoly status, encourage smaller new companies with no liability history to enter the market, dramatically increase the possibilities for black market sales, and increase imports from neighboring countries with less regulation than in the United States. Agreement to liability provisions would also guarantee that a comprehensive program with broad advertising restrictions is implemented. Companies have testified before Congress they will not voluntarily yield their First Amendment rights. This should not be perceived as a threat as much as good business sense for companies which are marketing a legal product. On November 13, I introduced draft legislation, the Placing Restraints on Tobacco's Endangerment of Children and Teens Act ("PROTECT" S. 1530), which meets these 10 key tests and which I hope will provide the basis for a bipartisan, bicameral discussion leading to enactment of comprehensive anti-tobacco legislation this year. There are many reasons such a bill should be enacted this year, but none more compelling than the gravitas of the statistics themselves. Can the United States really continue to see one-third of its youth die prematurely from tobacco use? To me, the answer is clearly "no," and it is time to do something about it. 94 |