STEPHANIE SAUL – The New York Times | July 31, 2008
Decades after the surgeon general first warned that cigarettes were a health hazard, the House of Representatives overwhelmingly approved legislation on Wednesday that would for the first time give the Food and Drug Administration the power to regulate tobacco products.
Citing the long history of warnings about the dangers of smoking, Representative John D. Dingell, chairman of the Energy and Commerce Committee, said that it was hard to believe that the federal government had not yet regulated the tobacco industry.
“With this legislation, we change this,” said Mr. Dingell, a Michigan Democrat.
The White House has signaled its opposition to the bill. And while the legislation has strong support in the Senate, which could take up the measure this fall, it is not clear whether the bill has a veto-proof majority there.
The show of support in the House, which passed the bill by a vote of 326 to 102, illustrated not only the strength of antismoking sentiment in the country but the benefit of enlisting a powerful ally. The legislation was partly the result of negotiations with Philip Morris USA, the nation’s largest cigarette company, which split with other companies by endorsing it.
Most large public health groups supported the measure — and its passage was applauded by groups including the American Lung Association and the American Heart Association — but some antismoking advocates said the bargain struck with Philip Morris gave too many concessions to the industry.
The bill specifically states that the F.D.A.’s new powers would stop short of the ability to order the elimination of nicotine from tobacco products or place an outright ban on all tobacco products.
But the agency could reduce nicotine to nonaddictive levels if it determined that doing so would benefit public health. The F.D.A. could also require changes in tobacco products, like the reduction or elimination of other harmful ingredients.
The bill bans flavored cigarettes that appeal to young people but exempts menthol from that ban. The exemption raised objections from black antismoking advocates because mentholated cigarettes are frequently chosen by black smokers.
To satisfy the Congressional Black Caucus on that issue, last-minute changes were made in the bill to direct a scientific advisory committee to issue recommendations on menthol in cigarettes within one year.
In a statement, Lorillard Tobacco Company, whose Newport cigarettes are the leading menthol brand, said it opposed the bill but “welcomes the provision in this bill that calls for a scientific review of menthol in cigarettes.”
Lorillard said that scientific studies to date do not support a conclusion that menthol cigarettes are more hazardous or addictive than non-menthol cigarettes.
The amendments also require the F.D.A. to publish an action plan on the advertising and promotion of menthol and other cigarettes to young people, giving priority to minority communities.
The bill was opposed by many Republicans. Many said they objected to expansion of the federal bureaucracy, and complained in particular that the F.D.A. was already unable to fulfill its work overseeing pharmaceuticals and food.
In floor discussion, John A. Boehner, the House minority leader, a smoker, called the legislation a “boneheaded idea.”
“How much is enough?” Mr. Boehner said. “How much government do we need? There’s not a smoker in America that doesn’t understand that smoking isn’t good for you.”
But Henry A. Waxman, the California Democrat who sponsored the bill, responded, “The minority leader said ‘When is enough, enough?’ Well cigarettes, one of the most dangerous products on sale today, are not regulated at all.”
The legislation would finance the F.D.A.’s tobacco supervision primarily through new fees paid by tobacco companies that are earmarked for that purpose.
If the legislation is enacted, consumers would see a wholesale revamping of the warning labels on tobacco products. The small messages currently on cigarette packs warning of the negative health effects would be replaced by graphic images of the physical ravages often caused by cigarettes, such as lung tumors and mouth growths.
The bill will also require cigarette makers to provide detailed disclosure about the type and quantities of ingredients in their products — like ammonia and acetaldehyde — which are believed to work with nicotine to increase the addictiveness of cigarettes and smokeless tobacco. The requirements mean that companies would be required to disclose internal research on the biological effects of those additives.
Cigarette companies could no longer advertise their products as “light” or “ultralight” to convey the notion of less harmful ingredients. Some companies have anticipated those changes by packaging their products so that cigarettes packs are color-coded to denote different blends.
Under the bill, any outdoor advertising of cigarettes, and advertising in publications seen by children, would have to be in black and white, to reduce their visual allure.
House approval of the bill follows years of debate over whether tobacco products should be regulated.
While attempts to place tobacco products under the agency’s jurisdiction date back at least to the 1980s, the impetus for the current bill originates in 1995, when Dr. David A. Kessler, then F.D.A. commissioner, proposed a set of regulations governing tobacco. Dr. Kessler asserted that nicotine was an addictive drug and that tobacco companies deliberately manipulated the nicotine content of their products.
Dr. Kessler had tried to impose regulations on the industry but the Supreme Court overturned them in 2000.
A bill that would have placed tobacco under F.D.A. jurisdiction was passed by the Senate in 2004 but was never approved by the House. The bill that the House approved Wednesday was introduced in both chambers in 2007.