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Where There's Smoke, There's Ire

NEW YORK -- On July 15, the U.S. Senate passed bipartisan legislation that would provide the U.S. Food and Drug Administration (FDA) with authority to regulate cigarettes and other tobacco products.

Amongst the wide array of the legislation's provisions are as follows:

* The legislation would give FDA the authority to impose performance standards for the design and manufacture of cigarettes in order to reduce the harm caused by smoking. Under the bills, FDA would, as part of its effort to reduce or eliminate harmful ingredients and smoke constituents, consider whether a new performance standard would significantly increase the demand for contraband cigarettes.

* The bills would change the language of the current cigarette health warnings, substantially enlarge their size and authorize FDA to require new warnings in the future. The bills would not, however, change the Supreme Court’s rulings regarding the product liability implications of compliance with warning requirements.

* The legislation would authorize the FDA, as well as states and localities, to regulate the time, place and manner of cigarette advertising and promotion, consistent with the First Amendment's protection of commercial free speech to adults.

* The legislation provides that the FDA's product standards would be consistent on a nationwide basis.

* The legislation would give FDA the authority to combat the existence of counterfeit, contraband and other illicit tobacco products.

Philip Morris USA is the only major tobacco company to support FDA regulation of cigarettes. The company believes this bipartisan legislation helps define the national standards that will help guide legitimate retail, wholesale and cigarette manufacturing businesses to responsibly market its products for the long term.

"We are aware that some of the other tobacco companies are not supporting this, but we are convinced that once it's implemented, over time all legitimate participants in the industry are going to come to realize the significant benefits that FDA involvement will bring," said Mark Berlind, vice president and associate general counsel of Altria Corp., Philip Morris's parent company.

"We believe our support of legislation intended to help reduce the harm caused by smoking will solidify Philip Morris USA's reputation not only as the leading cigarette manufacturer in this country, but also as the most responsible," he added.

Philip Morris's competitors think the bill gives Philip Morris a considerable competitive advantage in the U.S. market.

"Our take on the measure is that it represents the most anti-competitive bill passed by Congress in decades," said David Howard, spokesman for R.J. Reynolds Tobacco Co.
"This regulation, in R.J. Reynolds opinion, can take away many of the avenues that we have to communicate with adult smokers in order to effectively compete in the domestic market."

NACS has also been outspoken about their disdain for the bill.

"Supporting the bill makes sense for Philip Morris, and they have every right to support the bill," said Lyle Beckwith, NACS’s senior vice president of government relations. "What we have a problem with is their attempts to mislead, water down, or otherwise confuse the issue of retailing provisions. They've made several statements that the retail concerns have been addressed, though we find it very disingenuous that they would not share the language when they worked on it. They basically went into a closed room, came out with a bill and said, 'there, we took care of your problems.'"

Beckwith added that NACS's believes that with the FDA measure, everything distills down to three bullet points:

* Any comprehensive tobacco regulation should treat all retailers equally. That means Bricks and Mortar, Internet, Indian reservations, smoke shops, anyone who sells tobacco.

* Retailers should not be held responsible if a disgruntled clerk sells tobacco to a kid, forcing them to lose their license. If a clerk makes a mistake, even though he or she was trained, retailers should get penalized, but not lose their license.

* Minors who attempt to buy tobacco products should receive some form of penalty.

"We feel the bill falls short on all three of these measures. We want to work with Congress to make this into a bill we could support. If we're unable to do that, then the bill is unacceptable, and we will work to try and defeat it," said Beckwith.

In response to NACS's statements, a Philip Morris release claimed, "We are fairly and clearly presenting our opinion of the facts and the provisions of this bill as it would operate in the real world and we are encouraging members of Congress and staff to read the exact provisions we cite and it's up to them to decide whether these provisions provide adequate safeguards to retailers.

In summation, the FDA's mission is going to be to prevent as many kids from smoking as possible, which we fully support. If that leads to fewer adult smokers over time, than that is a goal that we support, because everybody agrees that kids shouldn't smoke, and whatever consequences flow from that, we are more than prepared to accept," the release said.
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