FDA might get regulatory power over tobacco

WASHINGTON -- A US Senate panel approved legislation yesterday that, after decades of effort, would give the nation's top health agency broad regulatory authority over tobacco products, paving the way for additional restrictions on advertising, tougher warning labels, and reduced levels of addictive nicotine.

The legislation, sponsored by Senator Edward M. Kennedy, Democrat of Massachusetts, had languished during Republican-majority rule of the US House and Senate, unable to get time on a committee calendar and thwarted when passed from the floor. The bill that cleared a congressional panel yesterday in a 13-to-8 vote was the result of years of negotiations that forged an unlikely coalition uniting dozens of health groups with the tobacco giant Philip Morris to back giving the Food and Drug Administration the authority to regulate tobacco products.

"This is the public health community speaking with one voice," said Kennedy, chairman of the Senate Health, Education, Labor, and Pensions Committee, which endorsed the bill. "With all the provisions we have in the tobacco bill, we have a real opportunity to save a generation of Americans from a lifetime of addiction and certain death."

The FDA currently can regulate such nicotine-replacement products as gums and patches, but it lacks regulatory oversight over cigarettes and smokeless tobacco.

Kennedy said the tobacco legislation would gain additional power through a 61-cent increase in tobacco taxes to finance a $35 billion boost in funding for children's health. The Senate measure, which has broad support, is expected to be approved later this week.

When cigarette prices rise by 10 percent, children's smoking drops 6.5 percent on average, according to the Campaign for Tobacco-Free Kids.

Under the Kennedy legislation, the FDA could silence those ads aimed at children, as well as block the sale of candy-flavored cigarettes used to hook children on smoking.

Under Kennedy's bill, the FDA could reduce the amount of nicotine in cigarettes, but only Congress could ban cigarettes entirely.

According to the American Cancer Society, tobacco use causes nearly 1 in 5 deaths in the United States, or roughly 440,000, each year and raises healthcare bills by $167 billion annually. While smoking is at its lowest levels since World War II, more than 20 percent of Americans smoke. Nearly all started as children; the average smoker takes his or her first puff at age 13 and smokes every day by age 15.

Yesterday's slim majority however, came as Republican-sponsored amendments loom that could gut the bill's main intent.

Such opponents as Senator Richard Burr, Republican of North Carolina, a tobacco-producing state, offered dozens of amendments at the committee level and promised more from the Senate floor to chip away at the bill's scope. Kennedy rejected most of the amendments, saying they would undermine the legislation.

Burr has said that he may offer his own bill or use procedural tactics to stall Kennedy's measure on the Senate floor. He also chastised the excise tax increase as a mechanism to fund children's healthcare and expand FDA staffing sufficiently to regulate tobacco.

"The honey pot right now is tobacco excise taxes. The fact is, they'll find, if they implement those, that there will be a reduction in tobacco usage," Burr said in a recent interview. He said the move would imperil state budgets that rely on tobacco taxes to ease shortfalls.

Senator Michael B. Enzi, the highest-ranking Republican on the Senate Health, Education, Labor and Pensions Committee, denounced the bill as "fundamentally flawed" and said it merely locks in place Philip Morris's dominant market share.

"If this bill is good for Big Tobacco, how can it be good for public health?" said Enzi, whose mother and father died smoking-related deaths. "The fact is it can't. This bill is nothing more than a Marlboro Protection Act."

Philip Morris USA, manufacturer of Marlboro, supports the bill, a stance at odds with industry rivals and companies that manufacture smokeless tobacco.

Enzi says his own bill would cut smoking rates faster than Kennedy's measure and would reduce nicotine content by about 98 percent over a generation.

Kennedy, whose 53 cosponsors include 12 Republicans, acknowledged the challenge.

"Ultimately, we're going to have to get 60 votes," he said. "All of that is doable."