Information Alert: H.R. 1108, Tobacco Regulation Bill
Today the House will consider H. R. 1108, the Family Smoking Prevention and Tobacco Control Act, which would provide authority for the Food and Drug Administration (FDA) to regulate tobacco products.
- The White House, in its Statement of Administration Policy on H.R. 1108, issued a veto threat against the bill on the grounds that it would increase taxes and “undermine one of the nation’s premier public health and regulatory institutions and potentially lead the public to mistakenly conclude some tobacco products are safe.”
- The Club for Growth is also scoring a NO vote on H.R. 1108, objecting to a bill that “gives sweeping control of the tobacco market to FDA” and imposes over $5 billion in new tax increases.
- The bill includes more than $5 billion in taxes on tobacco companies, ostensibly termed “user fees,” to finance the FDA’s work regulating tobacco products. CBO notes that these provisions greatly exceed the thresholds established in the Unfunded Mandates Reform Act (UMRA).
- H.R. 1108 places stringent restrictions on the introduction and marketing of new products that would reduce or modify the inherent risks associated with the consumption of tobacco. Some conservatives may be concerned that such onerous restrictions on the introduction of reduced risk tobacco products could inhibit the use of products reducing the risks associated with tobacco consumption while potentially serving as a barrier to entry for new market competitors.
- The Food and Drug Administration has publicly stated it does not want the authority to regulate tobacco products granted in H.R. 1108, as it would contradict its mission to promote and protect the public health. In the Commissioner’s opinion, “Associating any agency whose mission is to promote public health with the approval of inherently dangerous products would undermine its mission and likely have perverse incentive effects.”
- This morning, Energy and Commerce Chairman Dingell, discussing the recent salmonella outbreak, was quoted in The Wall Street Journal as saying that “there’s a total inability of FDA to carry out its mission.” On top of questions which Democrats themselves have raised regarding FDA’s competence, some conservatives may question whether the food safety concerns that have arisen recently make now an appropriate time to expand the agency’s regulatory remit and mission.
- While establishing FDA authority to regulate tobacco products, H.R. 1108 would also retain the FTC’s authority to regulate tobacco advertising and distribution on the federal level, and would provide only limited pre-emption of state laws, allowing more stringent state restrictions on tobacco advertising and promotion. Some conservatives may be concerned that these multiple layers of regulation will impose undue bureaucratic and logistical difficulties on tobacco manufacturers—even though H.R. 1108 would explicitly retain tobacco as a lawful product.
- Because the bill bans clove and other flavored cigarettes—many of which are manufactured in foreign countries—while expressly permitting production of menthol cigarettes, Indonesia or other foreign governments could file complaints at the World Trade Organization claiming discrimination against their products. Some conservatives may be concerned that passage of H.R. 1108 could ultimately result in retaliatory measures being taken against American-made products—and could lead to trade disputes with a negative effect on economic growth.
- Some conservatives may be concerned that a 190-page bill seeking to establish new federal authority to regulate a multi-billion dollar industry is being considered under expedited procedures on the suspension calendar.