House Appropriations Amendment Would Weaken FDA’s Authority over Tobacco, Unleash Big Tobacco on America’s Kids

Statement of Campaign for Tobacco-Free Kids, American Cancer Society Cancer Action Network, American Heart Association and American Lung Association

Washington, D.C. (June 1, 2011)

Less than two years after Congress passed a bipartisan law to protect America’s kids from the tobacco industry, the House Appropriations Committee yesterday approved an amendment by Representative Denny Rehberg (R-MT) that would weaken critical provisions of the law and unleash the tobacco industry to again prey on the American public, especially our children.

While Mr. Rehberg stated that his amendment was not about tobacco, the amendment would curtail the Food and Drug Administration’s (FDA’s) authority to regulate the contents of tobacco products. It would severely limit the kind of evidence FDA could consider in regulating tobacco and other products and eliminate the FDA’s ability to stop tobacco companies from adding ingredients that make their products more attractive to children and minorities, or more addictive and more difficult to quit using.

We strongly urge the full House of Representatives to reject this special interest giveaway to the tobacco industry that would harm the health of our nation’s children. It is telling that the 29 members who voted for the Rehberg amendment took a total of $289,927 in tobacco political action committee (PAC) contributions in the last three election cycles, compared to just $10,000 taken by the 20 members who voted against the amendment.  This means that those voting with the tobacco companies took, on average, 20 times as much tobacco PAC money as those who voted to protect kids ($9,997 vs. $500). According to contributions data from the Federal Election Commission, 20 of the 29 members voting for the amendment received tobacco PAC contributions in the last election cycle, while none of the members voting against the amendment did. This begs the question of whether tobacco company interests are a higher priority than the nation’s health for certain members of the House of Representatives.

The Rehberg amendment was approved during consideration of the fiscal year 2012 appropriations bill for the Department of Agriculture, FDA and other agencies. While the amendment applies to all products regulated by the FDA, it would weaken key provisions of the landmark 2009 law that granted the FDA authority over tobacco products.

The 2009 law gave the FDA authority to require changes in tobacco products, such as the reduction or removal of ingredients, to protect the public health. As a result, the FDA can now stop tobacco companies from adding ingredients or taking other actions that make their products more appealing to children, more addictive or more harmful. The Rehberg amendment would restrict the kind of scientific evidence the FDA can rely upon and the kind of actions the FDA can take. It would prevent the FDA from considering the impact of an ingredient on consumer behavior or whether an ingredient increases youth tobacco use or makes a tobacco product more addictive.

If this amendment were to become law, the FDA could not stop tobacco companies from adding ingredients that attract children, or that make it easier for kids to become addicted and harder for smokers to quit.

Impact of Amendment

Among other things, the Rehberg amendment would restrict the FDA’s ability to regulate the use of menthol in cigarettes. The FDA’s Tobacco Products Scientific Advisory Committee in March 2011 issued an exhaustive report that concluded menthol increases the number of kids who start to smoke and reduces the number of smokers who quit. While the committee found there is insufficient evidence to conclude that menthol itself increases disease risk for individual smokers, it did conclude that menthol harms public health because it increases the number of people who smoke and the number who become sick and die as a result. Yet, under the Rehberg amendment, the FDA could not take action regarding menthol in order to prevent kids from starting to smoke or to help more smokers quit.

The addition of menthol is just one example in the tobacco industry’s long history of designing their products to make them more attractive to children and minorities, or more addictive and difficult to quit using. Here are other examples of how the Rehberg amendment would limit FDA’s ability to protect public health:

  • The tobacco companies add sugars, flavorings and other substances that make their products easier to use and attractive to children. While there may not be evidence that these additives increase the risk of cancer or other diseases, the FDA should be able to stop such actions that make cigarettes more appealing to children and increase the number of kids who smoke.
  • For decades, tobacco companies have manipulated the levels of nicotine in their products and added ammonia to speed absorption of nicotine, all in an effort to make their products more addictive. Under the Rehberg amendment, the FDA could not require tobacco companies to reduce nicotine levels or stop adding ammonia unless the agency could demonstrate that these substances themselves cause more cancer or other diseases. FDA should be able to take such actions on the basis that it would reduce the number of kids who start to smoke and increase the number of smokers who succeed in quitting.

Tobacco use is the leading cause of preventable death in the United States, killing more than 400,000 Americans and costing the nation $96 billion in health care bills each year. The Rehberg amendment is a huge step backward and would turn the tobacco companies loose on our children again.

While this amendment is part of an appropriations bill, it does nothing to save taxpayers money or reduce the budget deficit. In fact, it likely would increase how much the government spends on tobacco-related health care costs under Medicare, Medicaid and other programs. It is purely and simply a giveaway to the tobacco industry that must be rejected by the full House.

The full text of the Rehberg Amendment is:

"None of the funds made available by this Act may be used by the Food and Drug Administration to write, prepare, develop or publish a proposed, interim, or final rule, regulation or guidance that is intended to restrict the use of a substance or a compound unless the Secretary bases such rule, regulation or guidance on hard science (and not on such factors as cost and consumer behavior), and determines that the weight of toxicological evidence, epidemiological evidence, and risk assessments clearly justifies such action, including a demonstration that a product containing such substance or compound is more harmful to users than a product that does not contain such substance or compound, or in the case of pharmaceuticals, has been demonstrated by scientific study to have none of the purported benefits."