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Position of the National Center for Tobacco-Free Kids on the Agreement Between the State Attorneys General and the Tobacco Industry

August 20, 1997

Washington, DC - The agreement between state Attorneys General and the tobacco industry contains substantial public health advances. It can lead to a national, comprehensive, well funded and sustainable program to dramatically reduce tobacco use among children and adults and to reduce second hand smoke in public places and work sites. Once the agreement is strengthened by the White House to address the serious concerns raised by the Advisory Committee on Public Health and Tobacco (the Koop Kessler Committee) and the public health community, it can be a catalyst for meaningful and effective tobacco control now, rather than waiting for what an uncertain future may bring. The proposed agreement is the result of a difficult negotiating process, and therefore, falls short in several key areas. The public health community has recommended changes to several parts of the agreement and has expressed particular concerns about the provisions affecting FDA’s authority to require the tobacco industry to modify its products and the adequacy of the penalties to be paid by the tobacco industry if youth smoking rates do not fall as projected. These problems must be addressed and other important concerns must be carefully reviewed and considered. We will work with the Administration, Members of Congress and the public health community to make the agreement stronger and better. A revised agreement presents a historic opportunity to achieve comprehensive protections for our children. The agreement includes: (1) youth access restrictions with meaningful enforcement tools; (2) tobacco marketing restrictions that go beyond what FDA had previously proposed; (3) the largest public education campaign in history, aimed at both children and adults; (4) dramatically improved health warnings; (5) protection from environmental tobacco smoke; (6) increased tobacco industry document disclosure; (7) new and innovative financial penalties against tobacco companies if tobacco use among children doesn’t drop substantially; and, critically, (8) adequate funds to make these public health actions and FDA regulation meaningful. All of these elements are necessary to reduce tobacco use, and all go well beyond current regulations. Importantly, the proposed agreement provides critical funding that otherwise would not be available. Rules and regulatory power without the resources to enforce the rules and exercise the regulatory power cannot bring about fundamental change. Despite the public’s growing antipathy toward tobacco, Congress is unlikely to enact a comprehensive tobacco control program in the foreseeable future, absent this agreement. If the FDA’s jurisdiction is upheld in court (currently under appeal), the agency will have broad regulatory authority, but its oversight of tobacco marketing is in doubt, and the FDA faces the almost certain threat of litigation when it tries to move beyond the narrow focus of its current rule. Also, Congress has been unwilling to provide FDA with the resources needed to effectively carry out its youth access rules, let alone to implement a thorough regulatory plan aimed at reducing the harm and addictive impact of tobacco products. The proposed agreement would provide full funding for FDA to implement these activities. The pending lawsuits filed by the Attorneys General of 40 states involve untested legal approaches, but they offer the best hope of massive judgments against the tobacco industry. One argument for delaying a legislative solution is that our leverage may increase if several states go to trial and win. But there is also the risk that our leverage will decrease if these states settle their cases or they are lost. Even if a number of these cases are successful and the tobacco industry is forced to pay the winning states’ Medicaid costs, the courts are not likely to order major public health improvements, nor are the documents which may emerge through these cases likely to alter the public health agenda. Unfortunately, under the law even if the tobacco industry is forced into bankruptcy, it will be permitted to continue in business and to sell its products. Thus, many of the important tobacco control provisions available through an improved agreement are unlikely to be achieved in the foreseeable future through other means. Therefore, now that the President and Congress are setting a course of action, we are committed to continue our work with the White House, Congress and others in the public health community to strengthen and support the agreement and have it enacted into legislation. Like other public health organizations, we would prefer to obtain all of the benefits in a revised agreement without concessions or protections for the tobacco industry. However, Congress is unlikely to enact such change and no court is likely to order it. Thus, we have concluded that this opportunity to achieve a comprehensive, national tobacco control program must be our priority.