June 12, 2009

Senate Votes to Impose U.S. Regulation on Tobacco

WASHINGTON — The Senate voted overwhelmingly Thursday to impose federal regulation on cigarettes and other forms of tobacco, passing a landmark bill to empower the Food and Drug Administration to control products that eventually kill half their regular users.

The legislation, with only minor differences from a version the House passed in April by a nearly 3-to-1 ratio. A White House spokesman, Reid H. Cherlin, said on Thursday that President Obama, who was a co-sponsor of the bill when he was in the Senate, would sign the legislation when it reached his desk.

An estimated one in five people in this country smoke, and more than 400,000 of them die each year from smoking-related disease. But for decades, even after the surgeon general’s 1964 report declaring cigarettes a health hazard, Congressional efforts to regulate tobacco had met stiff opposition from lawmakers from tobacco-growing states and their political allies.

And when the F.D.A. tried on its own to start regulating nicotine as a drug, the Supreme Court struck down that effort in 2000, saying the agency could not take such a step without Congressional authority. Cigarettes remained less regulated than cosmetics or pet food.

But with broad bipartisan support in both the Senate and House, and a campaign pledge by Barack Obama to sign such legislation if he became president, the anti-tobacco forces came into alignment.

“This long-overdue grant of authority to F.D.A. to regulate tobacco products means that the agency can finally take the actions needed to protect our people from the most deadly of all consumer products,” Edward M. Kennedy, the Massachusetts Democrat who was chief sponsor of the legislation in the Senate, said in a statement from home, where he is receiving treatment for a brain tumor.

The Family Smoking Prevention and Tobacco Control Act, as it is called, would empower the F.D.A. to set standards for cigarettes, regulating chemicals in cigarette smoke and outlawing most tobacco flavorings. It could also study whether to also ban menthol. Flavorings are considered a lure to first-time smokers, especially the young. Menthol is used by three-quarters of black smokers, who also have a disproportionate share of lung cancer.

The law would also further restrict marketing and advertising of tobacco products. Colorful advertising and store displays will be replaced by black-and-white-only text as part of restrictions aimed at reducing the appeal to youth to try smoking. Cigarette makers will be required to stop using terms like “light” and “low tar” by next year and to place large and graphic health warnings on their packages by 2012.

But while the F.D.A. could mandate a reduced level of nicotine, an addictive chemical, the law expressly says the agency cannot ban it. Public health advocates say outlawing nicotine would force addicts would turn to a black market or other sources.

Still, health advocates predict that F.D.A. product standards could eventually reduce some of the 60 carcinogens and 4,000 toxins in cigarette smoke, or make them taste so bad they deter users.

“This is a bill not for a one-year or two-year splash, but for a long-term impact,” said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, a Washington advocacy group that took a lead in coordinating support for the legislation. The Altria Group, the parent company of Philip Morris, whose Marlboro brand helps make it the nation’s leading tobacco seller, endorsed the F.D.A. legislation and negotiated some of its crucial provisions with Congress.

The Congressional Budget Office had estimated that the F.D.A. legislation would reduce youth smoking by 11 percent and adult smoking by 2 percent over the next decade beyond the declines that had already resulted from public education, higher taxes and smoke-free indoor space laws.

At least partly because of such other efforts, cigarette smoking has declined measurably over the last decade: in 2005, about 21 percent of adults in the United States were smokers, compared with about 25 percent in 1995.

Reynolds America and Lorillard, the second- and third-largest companies, opposed the legislation and criticized it as being intended to protect Philip Morris’s market dominance by restricting advertising and new products.

But Brendan McCormick, a spokesman for Philip Morris’s parent, Altria, argued that previous marketing restrictions, like the television advertising ban imposed in 1971, had not frozen companies’ market shares. He said his company supported “federal regulation and the benefits it will bring to tobacco consumers and the greater predictability and stability we think it will bring to the tobacco industry.”

There are only minor differences between the Senate bill and the one the House passed in April — the main one involving the size of the graphic warnings on cigarette packs, which would be bigger under the Senate version.

Henry A. Waxman, the California Democratic who was chief sponsor of the House bill, said in an interview that he hoped the House could simply pass the Senate version of the bill next week to send quickly to the President.

“I would prefer we do that,” Mr. Waxman said, adding that it was still possible to call a conference committee instead to negotiate the minor differences. But that process, he said, could delay action and risk another Senate filibuster of the type that was broken Monday in a crucial vote of 61 Senators, two more than needed to proceed to final action. That filibuster had been mounted by Richard M. Burr, Republican of North Carolina, the nation’s leading tobacco-growing state. Only one Democrat — Kay Hagan, also of North Carolina — had voted to uphold the filibuster.

On Tuesday, the Senate voted 60 to 36 against a substitute bill by Mr. Burr and Ms. Hagan to promote smokeless and other “reduced risk” products rather than strictly regulate all new tobacco products.

Under the law, new products could be approved only if makers could demonstrate health benefits to society as a whole — meaning the products would not induce too many nonsmokers or would-be quitters to try them, rather than abstaining.

Another crucial procedural vote Wednesday passed 67-30, cutting off amendments. And the final action Thursday came on a 79 to 17 vote, with Ms. Hagan of North Carolina the only Democrat voting against it.The voting reflected a political shift from years past, when tobacco state senators could count on support from other Southern conservatives.

John Cornyn of Texas, who is chairman of the Senate Republican campaign committee, co-sponsored the tobacco bill and voted against the filibuster. “This is a rarity these days in Washington,” Mr. Cornyn said in debate Tuesday. “It is actually a bipartisan bill.”

Michael B. Enzi of Wyoming, the ranking Republican on the Senate health committee, also supported the tobacco legislation. “Smoking killed my dad and my mom and my mother-in-law, and second-hand smoking conclusively affected me,” he said during the Senate debate. “So this isn’t political. This is about the health of all Americans.”

Although tobacco companies have also lost a series of recent rulings in court, tobacco industry financial analysts say federal regulation, higher taxes and court verdicts are all manageable because the companies, with a market of addicted customers, can raise prices to remain profitable.

A Goldman Sachs analyst, Judy Hong, wrote in a report to investors last week, “Some of the new remedies may be unpleasant but not financially disabling to the tobacco companies.”

Under the law, tobacco regulation would be introduced in stages. First, the F.D.A. would hire a director and staff and find space for a new Tobacco Center, to be financed by industry fees. The projected budget is $85 million the first year, $450 million by the third year and more than $700 million in 10 years. A scientific advisory committee would be set up by next year.

New marketing restrictions next year would include a ban on all outdoor advertising of tobacco within 1,000 feet of schools and playgrounds.

The Association of National Advertisers, a trade organization, says the legislation’s “massive crushing and unprecedently broad advertising restrictions” violate First Amendment protections for commercial speech. A court challenge is probable.

While cigarette consumption has declined in most Western countries, it is growing in Asia and Eastern Europe. An estimated 1.3 billion people now smoke worldwide, according to the World Lung Foundation.

“The unfortunate thing,” Nancy Brown, president of the American Heart Association, said in an interview, “is the bad American habit is now being exported to other countries.”

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