May. 16 2000
Washington, DC — In 1998, Senator Bill Frist drafted legislation granting the U.S. Food and Drug Administration authority over tobacco products that both protected the public health and received broad-based support from public health organizations and Senators of both parties. We are ready and eager to work with Senator Frist to enact this legislation into law this year, but unfortunately that is not the bill he is introducing today.
The bill Senator Frist is introducing is far weaker than his own 1998 bill. On the surface, this new bill appears to provide for dramatic change. But when examined carefully, it contains so many hurdles, loopholes and restrictions that it will prevent the FDA from protecting the public health and result instead in endless delay and litigation. Rather than provide a vehicle for quickly saving lives, this bill will do little, if anything, in the near future to reduce the number of children who start to smoke and the number of adults who die from tobacco use.
In light of the U.S. Supreme Court's decision, it is important that Congress act this year to grant the FDA meaningful authority over tobacco. There are good, bipartisan alternatives to Senator Frist's latest proposal that can make a difference now. We support the FDA proposal that Senator Frist himself drafted in 1998, as well as the bipartisan bills introduced by Senators Harkin, Chafee and Graham and Representatives Ganske, Dingell, and Waxman. Each of these bills creates an opportunity to pass legislation that can begin to protect our children and the public health now without the years of litigation and delay that will occur if the new Frist bill is enacted. The FDA's authority over tobacco is simply too important to get wrong.
Senator Frist's new bill is flawed in several critical ways.
Senator Frist's 1998 bill and the bipartisan bills introduced earlier this year would put in place the important provisions of the FDA's 1996 Rule curtailing youth access to tobacco products and restricting tobacco marketing that has the greatest impact on children. Senator Frist's new bill would substantially weaken the FDA's authority over tobacco sales and marketing. It would require the FDA to conduct its rulemaking process over again, guaranteeing years of delay as these protections are written and then subject to challenge in the courts. It also fails to set a national minimum age for the purchase of tobacco products and significantly increases the FDA's burden of proof in showing that tobacco advertising impacts minors. The practical consequence is to allow the tobacco companies to continue to advertise to and addict even more of our kids.
Senator Frist's 1998 bill and the other bills introduced earlier this year insured that FDA's authority over the tobacco industry's marketing was based on the nation's public health needs. This gave the agency authority over direct or implied health claims tobacco companies may make about their products. Senator Frist's new bill would curtail this authority. The impact of this change would be immediate. RJ Reynolds recently announced that it will market Eclipse cigarettes with the claim that Eclipse reduces a smoker's risk of serious disease. Under the new Frist bill, these claims could be regulated only if the FDA first declared Eclipse to be an unapproved drug. The FDA needs the authority to ensure that these claims are accurate and based on sound science, just as it does with health claims about other food and drug products. It also needs to be able to insure that the advertising for these products does not actually increase the number of people who die from tobacco by encouraging more people to smoke and fewer people to quit. The new Frist bill limits the FDA's ability to control the types of claims tobacco companies can make and how they are advertised.
Senator Frist's 1998 bill and the other bills introduced earlier this year insured that decisions about what to do with nicotine were made by scientists at the FDA based on sound scientific criteria. Senator Frist's new bill turns the decision into a political decision to be made by Congress.
These are but a few of the many examples in which the 2000 Frist bill is weaker than the 1998 Frist bill. The 1998 Frist bill protected the public health. The 2000 Frist bill creates the illusion of change, but will have little practical effect. The new Frist bill is even weaker than the FDA regulation the tobacco companies were prepared to accept as part of the 1997 settlement with the states. If the tobacco industry could draft a bill that would guarantee business as usual, this would be it.