I thank the gentlewoman for yielding. Herbert Hoover in the last century referred to the Volstead Act as a noble experiment. It was grounded on the sincere desire to rid society of the ills of alcohol. It was designed to improve health,…
I thank the gentlewoman for yielding.
Herbert Hoover in the last century referred to the Volstead Act as a noble experiment. It was grounded on the sincere desire to rid society of the ills of alcohol. It was designed to improve health, cut crime and relieve taxpayers of a portion of the burden of subsidizing prisons. The problem is we know it as Prohibition. It failed to take into account human nature and the truism that things are apt to go wrong when government tinkers too much with personal choices.
We are about to repeat history. There will be speeches here on the floor, I just heard one, about how this bill is going to help children, how this bill is going to improve public health. Unfortunately, the Kennedy bill that has now just come from the Senate back to the House here is not going to be able to achieve the goals which it desires.
What I will do here this morning, and as I also manage the bill itself, is bring up some of the highlights and concerns. The first highlight and concern is that Members need to do their due diligence and read the legislation that is coming to the floor. Please. There is a herd mentality that is occurring right now whereby there is blind faith that is given to leadership, and people are just voting for things. They have no idea what is truly in the legislation.
So I'm going to highlight some of the great concerns, because we need to be a responsible legislative body. A responsible legislative body is one that doesn't kick or punt the tough questions to the Supreme Court, and that's exactly what we're doing.
I'm going to address the Supreme Court in the First Amendment and Fifth Amendment issues. I'm going to address the same ``quit or die'' strategies of abstinence that are being applied to smoking. I'll also address harm reduction that should have been incorporated, claimed to be incorporated but is not. I'll also mention how this bill further burdens the FDA and its core mission while, at the same time, the majority is talking about how the FDA cannot protect the American people with regard to tainted food and adulterated and counterfeit drugs. I also would like to mention how this bill actually locks the marketplace to prevent innovation and competition. We are truly on the wave of socialism in this country.
So, first let me refer to the First Amendment. The Kennedy bill directs the Secretary of HHS to promulgate an interim final rule that is identical to the FDA's 1996 rule which legal experts from across the political spectrum have stated would violate the First Amendment. While these expert views should carry great weight, even more dispositive of the fact that the United States Supreme Court has also weighed in on various provisions of the rule, finding them already unconstitutional-- they've already ruled--yet we're going to go ahead and put them right back in legislation. Not very responsible.
So before Members get down here and start pounding their chests as though they're doing great things, this is irresponsible for this body.
In Lorillard Tobacco Company v. Reilly, the United States Supreme Court struck down a Massachusetts statute that was similar in many ways to the FDA's proposed rule. The statute banned outdoor ads within 1,000 feet of schools, parks and playgrounds, and also restricted point-of- sale advertising for tobacco products. The Court held that this regulation ran afoul of the tests established in the Central Hudson case, which defines the protection afforded commercial speech under the First Amendment, as it was not sufficiently narrowly tailored and would have disparate impacts from community to community.
The Court then noted that since the Massachusetts statute was based on the FDA's rule, the FDA rule would have similar unconstitutional effects on a nationwide basis. As Justice Sandra Day O'Connor wrote for the Court, ``the uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.''
Additionally, the proposed rule in the Kennedy bill would require ads to use only black text on white background. Again, the United States Supreme Court found a similar provision unconstitutional in Zauderer v. Office of Disciplinary Counsel. In that case, dealing with advertisers for legal services, the Court held that the use of colors and illustrations in ads are entitled to the same First Amendment protections given verbal commercial free speech.
Justice Byron White, in his opinion for the Court, wrote that pictures and illustrations and ads cannot be banned ``simply on the strength of the general argument that the visual content of advertising may, under some circumstances, be deceptive or manipulative.''
There are numerous other speech restrictions in this legislation that raise serious First Amendment issues and will create a swarm of lawsuits that will only divert us from trying to develop more effective approaches to tobacco use in the United States.
To put forward speech restrictions that a broad range of experts have stated is almost certain to be struck down would be highly counterproductive, and should not be done by this legislative body. Actually, there probably will be a record time between when this bill is signed into law and when lawsuits begin to be filed in Federal court.
Now, I referred in my opening to these ``quit or die'' strategies. The ``quit or die'' strategy, the reason I call it that is this is an abstinence approach to tobacco, meaning, you either quit or, if you continue to use the product, you die. That's their abstinence approach.
The previous speaker even talked about, well, this bill is going to promote nicotine therapies, and we're going to move people toward these nicotine therapies and they'll get a chance to quit.
Nicotine therapies work for less than 7 percent of the American smokers who use them to quit smoking. Each year, approximately 20 million smokers use nicotine replacement therapies in an attempt to quit smoking.
Now, think about this. You've got over 40 million smokers. Two million try to quit, and there's a 7 percent success rate. This bill locks in the 7 percent success rate and does not allow the marketplace to exercise innovation as a gateway of smokers to smokeless-type products in a harm reduction strategy to lower in a continuum of risk.
Seven percent? So individuals are going to come here to the floor and claim that a 7 percent success rate is wonderful; 7 percent success rate is failure. Failure. Why should we, as a body, embrace failure? We should not.
This legislation, the Kennedy legislation, locks down the marketplace. It locks it down. And it says whoever has what particular market share, that's it. That's where it's going to be.
With regard to introduction of new products, oh, no, no, no, no, no. We're going to create a 2-tier standard. You have to be able to show, with regard to that product, its impact upon the individual and then the population at large. In order to do that, that is a hurdle. It is called a ``bridge too far.'' When you create a 2-tier standard that is a barrier, as an entry barrier of new products to the market, you lock down innovation. You secure competition in a present pattern, and then, with regard to these therapies, we're saying okay, this is cool, this is good. We're doing something great for public health. We're going to lock in a 7 percent success rate. Wow.
Now, Members are also going to come to the floor and say oh, this is really great. We're really going to be helping people quit smoking.
Are you kidding me?
You know what this bill does?
This bill increases the success rate, now, of quitting smoking by two-tenths of 1 percent. Two-tenths of 1 percent. You're proud of that? Two-tenths of 1 percent.
Now, let's talk about what is two-tenths of 1 percent? Well, let's go to our friends, one of our strongest allies in our transatlantic alliance, Great Britain. The Royal College of Physicians, also looking at this issue in their report, and they're looking also to solutions to the smoking epidemic, they write, in their review of other countries, it indicates that the best conventional tobacco control measures reducing smoking prevalence is between .5 and 1 percentage point per year. Whoa. Great Britain went out there and looked at all these other countries around the world and found that other countries that are taking aggressive measures are able to reduce smoking prevalence by .5 to 1 percentage points per year. And none of them have even taken into account what Mr. McIntyre and I presented to the floor for harm reduction strategies.
So, great. The rest of the world is at .5 and 1, and we're going to be at two-tenths of 1 percent, and you're going to claim that's success. We're doing great things to improve public health.
Are you kidding me? We are not. We're continuing failure. Failure. So don't come to the floor and act like someone is the champion here, because we're not. Two-tenths of 1 percent.
I'll yield to help you with math.
It's two-tenths of 1 percent.
Two-tenths of 1 percent, 2 percent. You think that's great.
What?
Sure. It's the Royal College of Physicians.
Absolutely.
The Royal College of Physicians, I'm indicating, with regard to the reduction of prevalence of smoking of .5 and 1 percentage point per year of places around the world. Two percent CRS? Yeah, this is CBO. I don't know where you're getting your facts. This is CBO. Last time I checked, CBO is in the United States, you think? Yeah. CBO is in the United States.
Now, let me also move to harm reduction strategies. Here's why I'm really upset. I'm upset because what we really should be doing, if we really had an interest in improving public health, we should be migrating populations, moving populations. And when you move populations, you also want to inform people with regard to choices and the risk associated with products. We do that every day in the types of automobiles which we buy, whether you're going to wear your seatbelt. I suppose, I don't know, if you want to wear a helmet--did you wear a helmet to work when you drove your car today? I guess that's a choice you could make. People make harm reduction choices every day. In the foods we eat, what we drink, whatever we consume, we make these decisions every day. But how come we don't apply harm reduction strategies to tobacco? We should.
So, in the marketplace right now, there are many types of products. Now, what is unique about what's happening here is that this legislation doesn't even touch that which is most harmful, which are cigars and pipes. Cigars and pipes, you can directly ingest these toxins and carcinogens in a far greater strength into the body, and it is more harmful. But that's not even touched in this legislation.
So let's just talk about what's touched. If you look at the continuum of risk and the choice of available products that are out there today, the most harmful, which would be under this bill, are the non-filtered cigarettes. That's why I put them at the 100 percent.
Next is if you actually put a filter on that cigarette. We're beginning to reduce the harm.
Then you've got tobacco-heated cigarettes. But we don't understand all the science about the tobacco-heated cigarettes.
Then you have an electronic cigarette, whereby it's a nicotine delivery device. Yet we know that when you don't ingest the smoke, that you have a less harmful product.
Then there are the U.S. smokeless products. Now we can reduce the risk by 90 percent and say to an individual that you can obtain your nicotine you want, but guess what? You can reduce the harm by 90 percent. But these are still all harmful products.
Then you can go to a Swedish snus, and now you can reduce almost 98 percent of the risk. The difference here is one is fermented, and the other is pasteurized.
Then you can go to dissolvable tobacco products that have no nitrosamines. And then you can go to almost a 99.5 percent reduction of the risk. So you can actually get your nicotine by either an orb or a strip you lay on your tongue, or you can have a stick that kind of looks like a toothpick and you can roll it and you can obtain your nicotine, and you can remove 99 percent of the health risk. Ninety-nine percent.
But this legislation is going to say no to these types of innovations. No; that somehow we're going to lock into that which is the most harmful, instead of permitting a migration.
Now, what we want is, as individuals migrate, and you've got then the therapeutics and medicinal types of nicotine, what you really want is them to quit. And when you migrate them, you migrate them to eventually quit smoking.
What we have in the bill is abstinence. It mentions harm reduction, but because there is a two-tiered approach to the approval process for the introduction of new tobacco products, it is truly an entry barrier, so we've locked down the marketplace. When you lock down the marketplace, you do not improve public health in this country, and that is the greatest concern that I have here today.
Announcement by the Speaker Pro Tempore
Mr. Speaker, I would just like to bring up two points.
During my presentation, the gentleman brought up the 11 percent issue. After I gave my remarks, I immediately went to the Congressional Budget Office. It was a very clever attempt, Mr. Speaker, of the Rules Committee to try to confuse the American people, so I'll read directly from the CBO report so the record is clear.
``Based on information from academic and other researchers, CBO estimates that H.R. 1256,'' which is the Waxman bill, which is not being heard here--it is the Kennedy bill which is being referred to here--``would result in a further reduction in the number of underage tobacco users of 11 percent by 2019.''
Here is the other part, the rest of the story, that the Rules Committee did not share with the country.
``CBO also estimates that implementing H.R. 1256 would lead to a further decline in smoking by adults by about 2 percent after 10 years.'' Wow. Wow.
Now let me refer to the other. Too often, we should be careful about being cute here on the House floor. ``Cute'' means the reference with regard to lettuce, so I'll follow your logic. If you were to take that lettuce, dry it, roll it, and go ahead and smoke your lettuce, do you realize that you would end up with similar problems than if you were smoking tobacco? It's not the nicotine that kills. It's the smoke that kills. It's the inhalation of the smoke. That's what causes and is responsible for the pandemic of cancers, of heart disease, of respiratory disease, and of other factors. It's the smoke. So, as for the migration of people from smoke into smokeless and into other forms of therapies, if they want to obtain their nicotine, it's okay. Mr. Waxman, himself, would say, I do not want to outlaw tobacco.
Mr. Speaker, I would just say to my good friend from California that I am not an advocate of smoking at all. What I'm trying to do here on the floor is to help improve the public health of our Nation, and this is a bill that actually locks down the marketplace.
To the speaker, as to my reference to Ms. Harman, I want you to know that that is my sincere effort here. How do we improve public health?
Other nations around the world are all struggling, like we are, for good, sound public policy in how we regulate a legal product by adult users. There are restrictions with regard to access to children. Then, with regard to adult users, countries around the world are beginning to look at harm reduction and at applying those strategies to tobacco.
We had an opportunity to do that. It failed here on the floor, and I recognize that. It's probably something that's new. I welcome the opportunity to join with the gentlewoman from California, as we've worked really well together our entire time we've been here, and I would love to work with you on harm reduction strategies. I'll just read this from the American Association of Public Health Physicians. Since, Mr. Speaker, the Rules Committee doesn't want me to cite the Royal College of Physicians, I'll cite an American institution.
The American Association of Public Health Physicians found, In practical terms, the enhancement of current policies based on the premise that all tobacco products are equally risky will yield only small and barely measurable reductions in tobacco-related illness and death. The addition of a harm reduction component, however--and that's why I want to work with Ms. Harman--could yield a 50 to 80 percent reduction in tobacco-related illness and death over the first 10 years and a likely reduction of up to 90 percent within 20 years.
That's why I'm so passionate about a harm reduction strategy. I embrace your personal story, and that's why I am so sincere about a harm reduction.
I would yield to the gentlewoman.
Reclaiming my time, I will embrace that, and probably what we need to do if the President signs this bill into law, I offer to work with the gentlelady and we'll introduce a bill to incorporate harm reduction. I agreed earlier when I had spoken with Chairman Waxman, he recognizes that a pragmatic approach is truly incorporation of harm reduction with abstinence. And when we're talking about teenage sex or the use of tobacco, if we really, truly want a hand, four fingers and a thumb don't make a hand without a palm. So you have to use pragmatism along with new science.
And I will welcome the opportunity to work with the gentlelady.
Will the gentleman yield?
I want to make sure the record is clear.
Earlier in your remarks you referred to the issue on spiking. Spiking was an allegation that was made in a newspaper article; the investigation had taken place. Former FDA Commissioner Kessler found that spiking allegations of nicotine were found to be false.