A Smokin’ Debate Set on Tobacco

FDA Regulation Splits Tobacco Industry in Two

Posted March 20, 2009 at 6:03pm

“I front an organization that kills 1,200 people a day,— lamented tobacco lobbyist Nick Naylor in “Thank You for Smoking,— the 2006 movie that documented the underbelly of lobbying for one of society’s vices.

With landmark legislation to put tobacco under the control of the Food and Drug Administration moving quickly through Congress, tobacco lobbyists are finding real life is now as hard as the movies.

“The trouble is finding allies on the Hill,— said one lobbyist for a tobacco company. “We just want a rational discussion.—

Public health groups have been pushing since the 1970s for Congress to federally regulate the tobacco industry and its marketing.

Legislation championed by Rep. Henry Waxman (D-Calif.) passed the House overwhelmingly last July, 326-102, and has cleared two committee votes in the past two weeks. It could be brought to the House floor for a vote before the April recess, according to one leadership aide.

The real test for regulation advocates will come in the Senate, where Sen. Edward Kennedy (D-Mass.) plans to re-introduce a bill that is nearly identical to Waxman’s in the next few weeks, according to a spokeswoman for the Senator.

The Kennedy-Waxman legislation has split the tobacco industry, with industry giant Altria Group Inc., the Virginia-based parent company of Philip Morris USA, the lone company favoring the bill.

“This is their priority item, bar none,— said an outside lobbyist for the company who asked not to be named. “They are tired of fighting the legal battles,— added the lobbyist, “and they are taking a calculated risk to support FDA regulation.—

The nation’s second- and third-largest tobacco companies, R.J. Reynolds and Lorillard Tobacco Company, respectively, have argued that Altria, which markets roughly half of the nearly 500 billion cigarettes sold annually in the U.S., believes that the costs associated with FDA regulation will squeeze out competitors. They have lambasted the Kennedy-Waxman legislation as the “Marlboro Bill.—

“We’ve supported federal regulation of tobacco products for eight or nine years now,— said Bill Phelps, spokesman for Altria Group Inc. “We don’t think it will benefit one particular manufacturer over another.—

A Coalition’s Intransigence

Last year’s legislation from Kennedy garnered 60 co-sponsors and was approved by the Health, Education, Labor and Pensions Committee but failed to come to the floor for a vote amid time constraints and a filibuster threat from Sen. Richard Burr (R-N.C.).

Opponents of the Kennedy-Waxman bill contend it has been the intransigence of the public health community, which they say has refused to consider any changes in the bill’s language, that is responsible for the legislative stalemate.

“Every attempt to deal with substantive changes — not to gut a regulatory system but to improve [it] — it was like we were changing words in a Bible,— said the tobacco lobbyist.

Last week, Burr joined Sen. Kay Hagan (D-N.C.), the junior Senator from a state that is home to a multibillion-dollar tobacco industry, to introduce a competing bill that critics paint as too friendly to the tobacco industry.

The Federal Tobacco Act would place control of the tobacco industry under a newly created agency at the Department of Health and Human Services instead of the FDA, as the Waxman bill mandates.

“Sen. Burr introduced his bill to provide an alternative regulatory approach to putting tobacco under the already over-burdened FDA,— a spokesman for the Senator said.

Both bills would pay for the new federal regulation by imposing “user fees— on tobacco companies, but the Burr-Hagan bill would collect around $1 billion for the government over the next decade while the Waxman measure would impose larger fees and collect more than $5 billion.

“In our opinion, the Burr-Hagan bill is a step in the right direction,— said Maura Payne, a spokeswoman for Reynolds American Inc., the parent company of R.J. Reynolds Tobacco Company. “It recognizes and establishes a framework for harm reduction communication and analysis that is lacking in Rep. Waxman’s legislation.—

Lobbyists for smaller tobacco companies who oppose FDA regulation are suggesting to Senators that the Burr-Hagan bill is a viable alternative.

“This is the first new look at the problem in 12 years,— said the tobacco lobbyist. “You have Senators who hate us [tobacco] but believe the FDA is incapable of regulating the industry, so there is an argument to make.—

Unlikely Allies

The bill’s opponents have also found unlikely allies among the advertising industry and First Amendment rights advocates, who say Kennedy-Waxman would impose new advertising restrictions on tobacco far exceeding the current ones.

“This is the most restrictive advertising bill ever put forward by Congress for a legal product,— said Dan Jaffe, executive vice president for government relations at the Association of National Advertisers.“Groups from both ends of the spectrum have almost uniformly said this is unconstitutional.—

The three major advertising industry trade groups, representing a membership with revenues of more than $200 billion, submitted a letter to the House Energy and Commerce Committee this month and plan to continue to press the issue in the Senate.

“We have met with the staffs of Sen. Kennedy and Rep. Waxman over time, but they don’t agree,— said Jaffe. “These provisions would ban the ability to advertise legal products to adults and could have implications far beyond tobacco.—

But opponents like Jaffe are facing an uphill battle: They must contend with the grass-roots strength of a pro-regulation coalition of more than 950 public health and faith-based organizations, led by heavy-hitters including the Campaign for Tobacco-Free Kids, the American Lung Association, the American Heart Association and the American Cancer Society.

“This legislation is our top priority,— said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids. “It has the broadest support from the public health community that any public health bill has ever had.—