WASHINGTON -- As reported yesterday in CSP Daily News, the Family Smoking Prevention & Tobacco Control Act (H.R. 1108) came to the floor of the U.S. House of Representatives Wednesday under suspension of the rules, which bars amendments and requires two-thirds vote for passage. The bill, which would give regulatory authority to the U.S. Food & Drug Administration (FDA), passed by a vote of 326 to 102, with 290 votes needed for passage.
House leadership used this legislative procedure to prevent Republicans from attaching an oil drilling amendment to any bill that might pass, said [image-nocss] the Petroleum Marketers Association of America (PMAA). Speaker Nancy Pelosi (D-Calif.) is worried that many moderate Democrats facing tough re-election campaigns may vote for off-shore drilling to avoid political backlash when they return home for August recess.
PMAA continues to oppose H.R. 1108, as well as the Senate version, S. 625, it said. "While H.R. 1108 included provisions that would allow the FDA to regulate sales of tobacco on Native American lands and regulate internet tobacco sales, it still has several problems that would affect retailers," the association said. It "would punish retailers if the packaging, labeling or advertising for tobacco products are found to be out of compliance with whatever regulations are determined by the FDA. Retailers are rarely involved with any of those decisions and should not be punished for manufacturers' mistakes. Second, H.R. 1108 and S. 625 do not limit themselves to just additional federal regulation. State and local laws are not pre-empted, meaning the bill does not prohibit states or localities from enacting additional measures on the sale, distribution, possession, exposure and access to tobacco products."
The group does acknowledge a favorable aspect of the bill. A provision in H.R. 1108 would protect retailers from accidental sales of tobacco to minors by a "good faith" clause, it said. "A retailer would be protected if the retailer adopted and enforced a written policy about sales to minors, informed employees of relevant laws, established punishments for employees who violate that law and require employees to verify a purchaser's age using a government-issued photo-ID or an electronic scanning device. Finally, H.R. 1108 also would clarify that a retailer cannot be held liable for a violation if a minor presents a false government ID," PMAA said.
"The future of H.R. 1108 is in doubt," concluded PMAA. "The legislation faces a tough hurdle in the Senate, which requires 60 votes for passage. Senate Republicans have threatened a filibuster of their version of FDA regulation of tobacco (S. 625) and the president has issued a veto threat arguing that the bill would send the wrong message to tobacco users with the misperception that tobacco products are safe, or at least safer.
Greensboro, N.C.-based Lorillard Tobacco Co. said that it is "disappointed" with the vote. The company said that while it fully supports reasonable federal regulation of the tobacco industry, "the FDA is already overburdened and is the wrong agency to carry out this enormous task."
Lorillard said the current challenges facing FDA are well documented. It believes that the addition of a new multi-billion-dollar-a-year industry for the FDA to oversee, when the agency is already struggling to fulfill its core mission, is misguided. The company cites a February 2008 Zogby poll that showed that 82% of those surveyed say they are concerned that regulating tobacco would interfere with FDA's principle mission to oversee pharmaceutical drugs and the nation's food supply.
It also said that in October 2007, FDA Commissioner Dr. Andrew von Eschenbach, in written testimony before the House Energy & Commerce's Subcommittee on Health, made it clear that the FDA could play a role in the regulation of tobacco, but that the FDA should not be the responsible agency. Last week, HHS Secretary Michael Leavitt echoed those concerns when he wrote, "The regulatory obligations created by [the FDA] bill would be a significant added responsibility for the Food & Drug Administration and one that is inconsistent with FDA's mission of ensuring food safety and the safety and effectiveness of drugs, biologics, and medical devices."
Lorillard noted that some advocates have characterized this legislation as an important tool to reduce youth smoking. The company added that while more needs to be done to reduce the rate of youth smoking, this specific bill is, in fact, principally focused on adult smokers.
"The company believes the FDA is overburdened and the wrong agency to regulate tobacco—and looks to the Senate for its leadership to find an effective regulatory solution," Lorillard said.
And Filippe Goossens, research analyst with Credit Suisse, said in a research note, "While it is unclear at this stage whether the Senate will still pick up the bill this fall and whether it would have the required votes to override a potential presidential veto, a last-minute amendment to the proposed legislation incorporated a framework to study the effects of menthol in cigarettes. Some may interpret this as a first step.
Lorillard, the third-largest manufacturer of cigarettes in the United States, makes Newport. Its flagship brand is the top-selling menthol-flavored premium cigarette and second largest selling cigarette in the United States, it said. In addition to Newport, the Lorillard product line has five additional brand families marketed under the Kent, True, Maverick, Old Gold and Max brands. These six brands include 44 different product offerings which vary in price, taste, flavor, length and packaging.
Goossens added, "All tobacco players would lose with an outright ban on menthol. While Altria arguably could benefit if the competitive landscape was changed materially as a result of the ban, it would inevitably open the door to discussions about a potential ban on all cigarettes…. While no one can ever predict politics, we continue to stick with our view that an outright ban of menthol would have significant negative repercussions on excise tax and MSA revenues, illicit trade and unemployment."
Lorillard also said that while scientific studies to date do not support a conclusion that menthol cigarettes are more hazardous or addictive than non-menthol cigarettes, it welcomes the provision in this bill that calls for a scientific review of menthol in cigarettes.
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