On October 3, the House Energy and Commerce Subcommittee on Health held a hearing on the Family Smoking Prevention and Tobacco Control Act (H.R. 1108), sponsored by Rep. Henry Waxman (D-CA). The act would authorize the Food and Drug Administration (FDA) to regulate the manufacturing, marketing, and distribution of tobacco products, including requiring the disclosure of harmful ingredients and mandating larger health warnings. The FDA had begun drafting a framework for regulating tobacco products in 1996, but the Supreme Court ruled in 2000 that it lacked the authority to do so. The Senate Health, Education, Labor and Pensions Committee passed a similar bill in August (see The Source, 8/3/07).
Chair Frank Pallone, Jr. (D-NJ) noted that approximately 4,000 children try cigarettes for the first time each day, and 1,140 become new daily smokers, according to the Centers for Disease Control (CDC). “Tobacco use is the leading cause of preventable death in the United States, killing more than 400,000 Americans every year. That is more than AIDS, alcohol, car accidents, murder, suicides, illegal drugs, and fires combined…With such implications, it is hard to believe that tobacco products are exempt from the basic health and safety regulations that apply to other consumer products. The FDA regulates toothpaste, but not cigarettes; they monitor cereal, but not chewing tobacco. And ironically, the FDA regulates both over-the-counter and prescription medications to help people quit smoking, yet has no authority over the cause of the addiction.”
Ranking Member Nathan Deal (R-GA) said, “We have long been aware of the harmful and addictive effects of tobacco use and smoking and I believe it’s appropriate for us to look at ways to diminish the prevalence of smoking in our society…One study found that if all current smokers in the Medicaid program quit, our Medicaid program could save $9.7 billion. I certainly am sympathetic to the goals expressed by the authors of this legislation to keep our children from having easy access to cigarettes and trying to ensure that less people are smoking each year.”
Although FDA Commissioner Andrew von Eschenbach did not testify in person, he said in a written statement that the FDA “shares the goal of H.R. 1108…to reduce tobacco use in this country.” But he said that because the FDA is charged with “approving products based on scientific evidence that benefits of the product outweigh the risks” that “associating the agency with the approval of these inherently dangerous products would undermine the agency’s mission.” He was concerned that consumers might believe FDA-regulated tobacco products were safe to use, even though they are “intrinsically injurious to health.” Finally, he said that FDA would have to create a new program and hire new experts on tobacco, which would cost more than the money allocated in the act.
Alan Blum, a University of Alabama professor, also cautioned that “FDA regulation of tobacco products under H.R. 1108 would provide an unprecedented and unmerited legitimacy to cigarette makers and would send the misleading message to consumers that cigarettes, however problematic, are now government-sanctioned.”
Richard Bonnie, chair of the Institute of Medicine Committee on Reducing Tobacco Use, testified in support of H.R. 1108. He said that the FDA is the right agency to regulate tobacco products, because it is “the nation’s preeminent public health regulatory agency and…the only agency with the necessary combination of experience in product regulation and scientific expertise on tobacco-related disease and nicotine addiction.” The committee’s report recommended increasing excise taxes, restricting indoor smoking, requiring insurance companies and Medicaid and Medicare to pay for smoking cessation programs, and requiring text-only, black-and-white advertisements for tobacco products. “The committee specifically urges FDA to explore the feasibility of gradually reducing the nicotine content of cigarettes,” he added.
Rep. Lois Capps (D-CA) focused her questions on marketing brands to women and girls, displaying a Camel No. 9 advertisement that she said “clearly targets women and girls” with attractive imagery. “It’s my understanding that the legislation before us would require the removal of such terms as ‘light’ and ‘low’ and ‘mild,’ which have misled smokers into believing that these products might be less risky or harmful than other cigarettes. And there seems to be a lot of bright pink on the advertising for Camel No. 9,” she said.
“It does ban terms like ‘mild,’” responded William Corr, executive director for the Campaign for Tobacco-Free Kids. “It also gives FDA the authority to consider other aspects of marketing and its impact on young people. For example, if FDA, based on evidence, determined that terms like ‘luscious,’ colors, imagery, were being used in a way that influenced and attracted young people, the FDA would have the authority to prohibit them.” He also said the regulations proposed in 1996 by the FDA would have permitted black-and-white, text-only advertisements, which would “allow companies to continue to communicate…information to adults consistent with the First Amendment.”
Dr. Risa Lavizzo-Mourey, president and chief executive officer of the Robert Wood Johnson Foundation, testified that the FDA should have the authority to regulate tobacco advertising because companies still advertise in youth-oriented magazines. “This youth-oriented marketing works,” she said. “According to the 2005 National Survey on Drug Use and Health, more than 81 percent of youth smokers prefer the three most heavily advertised cigarette brands Marlboro, Camel, and Newport.” She also criticized the introduction of candy- and fruit-flavored tobacco products, which “clearly are intended as starter products for new tobacco users, most of whom are children.”
Rep. Michael Burgess (R-TX), a medical doctor, said that in his practice, he found very few insurance companies willing to pay for smoking-cessation programs. He suggested “aggressively promoting smoking-cessation activities rather than having the FDA regulate tobacco…That seems to be a much more judicious use of our money.” He further pointed out that the FDA doesn’t have the resources currently to focus on tobacco.
Dr. Fred M. Jacobs, commissioner of the New Jersey Department of Health, responded, “I don’t think either of these things are mutually exclusive. I don’t share your philosophy that the FDA is outgunned or under-resourced…If they’re under-resourced, then there’s a remedy for that in the Congress.”
Also testifying were Scott Ballin of the Alliance for Health Economic and Agricultural Development; James Winkler, general secretary of the General Board of Church and Society of the United Methodist Church; Henry Armour, president and chief executive officer of the National Association of Convenience Stores; and Jack Henningfield, vice president of Research and Health Policy Pinney Associates.
