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Congress Stalls Tobacco Regulations

The U.S. Food and Drug Administration came closer than ever to gaining regulatory authority over tobacco this fall, but the effort faltered in the waning hours of Congress’ regular session in mid-October.

Language that would have given FDA the authority to regulate the sale, advertising and marketing of tobacco was stripped from a corporate tax bill during House and Senate conferencing negotiations, much to the disappointment of tobacco control advocates. The Senate tried to make up for the exclusion by unanimously passing S. 2974, a separate bill that would give tobacco authority to FDA, but the issue was not expected to progress further in the current session of Congress.

“This was a huge missed opportunity to protect the health of millions of Americans,” said APHA Executive Director Georges Benjamin, MD, FACP. “Despite this loss, we are encouraged by the overwhelming support showed by the Senate and plan to keep working to regulate the health dangers of this lethal product.”

Tobacco control advocates were encouraged in July when the Senate passed the corporate tax bill, which contained a buyout plan that would provide payments to tobacco farmers as well as provide FDA regulatory authority over tobacco. The authority language was not included in the House version of the bill, however, and was dropped in conference to ensure smooth passage of the larger tax bill, which legislators were trying to pass before leaving for their October break.

Despite the overwhelming support of the Senate, a small group of House legislators were blamed for stripping the tobacco language from the tax bill. Those legislators bear “direct responsibility for our nation’s failure to reduce this terrible toll,” according to an Oct. 19 joint statement from the American Cancer Society, American Heart Association, American Lung Association and Campaign for Tobacco-Free Kids.

“Until Congress grants the FDA authority over tobacco, the tobacco companies will be free to continue selling candy-flavored cigarettes and engage in other marketing that appeals to children,” the statement said. “They will continue to mislead consumers and discourage smokers from quitting by making unproven claims that some tobacco products are safer than others. They will continue to hide the truth about the dangers of their products and fail to take even the most minimal steps to reduce the number of Americans who die from tobacco use.”

While the FDA regulatory authority was stripped from the tax bill, the tobacco-industry financed buyout plan survived and was passed in the final bill, which at press time was expected to be signed by President Bush. The buyout plan will provide payments to tobacco farmers, limit the amount of acreage that can be used to produce tobacco and end a federal support program for the crop.

Also stripped from the tax bill during conferencing was language that would have prevented new federal overtime pay rules from being enforced.

The new Labor Department rules, which took effect Aug. 23, would allow employers to deny overtime pay to as many as 6 million workers. APHA and other health advocates are concerned the new rules will have a negative effect on the health work force, particularly as it applies to nurses.

In a move similar to that taken on the tobacco issue, the Senate unanimously passed S. 2975, a separate bill that would prevent the overtime rules from being used on employees who were formerly eligible for overtime pay.

But while Congress is expected to come back into session in November to finish its remaining business — mostly consisting of appropriations bills — neither the tobacco bill nor the overtime legislation is expected to be taken up in the House this session.

Also related to tobacco, a long-awaited trial that pits the Department of Justice against the tobacco industry finally got under way in September. The lawsuit, which was first filed in 1999, seeks to hold cigarette companies legally responsible for concealing the health effects and addictiveness of tobacco and marketing cigarettes to children.

The lawsuit, which is being prosecuted under U.S. racketeering laws, seeks to collect $280 billion from the tobacco industry.

Even though FDA has not yet gained tobacco regulatory authority, this year’s efforts were applauded as a success for public health advocates. APHA members and other health and tobacco control advocates took strong actions on the issue, creating a diverse coalition of support, noted Kelly O’Brien, APHA’s associate executive director for public affairs.

For more on the tobacco or overtime legislation, visit and search by bill number. For more on the tobacco trial, visit or .

Michele Late
Reprinted with permission from The Nation's Health, APHA

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