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June 12, 2009 -- Washington Post (DC)

Senate Passes Bill to Let FDA Regulate Tobacco

By Lyndsey Layton, Washington Post Staff Writer

Return to Drug War News: Don't Miss Archive


Landmark legislation approved by the Senate yesterday will give the federal government sweeping new powers to oversee tobacco products, allowing regulators to control factors including the amount of addictive nicotine in a cigarette and how that cigarette is packaged and marketed.

For the 20 percent of Americans who smoke, the law will mean confronting more graphic warnings of the risks of their habit every time they pick up a pack. The law also bans most cigarette flavorings.

For the $89 billion tobacco industry, it will mean new requirements to disclose the ingredients in cigarettes and other tobacco products, and severe limitations on how they are advertised and promoted. The government could also issue new rules on nicotine content, flavorings and other product features.

Many of the new restrictions are aimed at preventing children from starting to smoke. Cherry and other fruit flavorings that appeal to children will be banned, along with marketing aimed at younger smokers, such as the use of Joe Camel and other cartoon characters.

The 79 to 17 vote virtually ensured that the bill will become law. The measure now goes to the House, which passed a nearly identical version in April and could take a final vote today. President Obama, himself a smoker who has struggled to quit, has said he will sign it.

Congress has been battling for more than a decade over regulating tobacco, coming close several times but faltering in the face of opposition from the tobacco lobby or the White House or procedural hang-ups. But over the years, changing social attitudes toward smoking have helped transform the idea of regulation from controversial to common sense.

"There's been a fundamental sea change in attitudes about tobacco in both the Congress and the public," said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, which led a coalition of more than 1,000 public health and faith organizations that supported the legislation. "A bill this broad, comprehensive, this strong would have been unimaginable even five years ago."

The legislation, which comes 50 years after the surgeon general first warned about the health effects of tobacco, gives broad new authority to the Food and Drug Administration to regulate the manufacturing and marketing of tobacco products.

"Miracles still happen," the bill's sponsor, Sen. Edward M. Kennedy (D-Mass.), said in a statement. Kennedy, who had worked for years to push the bill forward, is battling brain cancer and missed yesterday's vote. "The United States Senate has finally said 'no' to Big Tobacco."

On the Senate floor, lawmakers took turns detailing their personal struggles with tobacco.

"There's not a smoker in the country that's an adult who wishes their children would begin smoking," said Sen. Christopher J. Dodd (D-Conn.), himself a former smoker. "And there are many adult smokers today who wish they never started. . . . This has been a very long battle."

Sen. Richard Burr (R-N.C.), whose state is home to the R.J. Reynolds and Lorillard tobacco companies, tried to kill the measure, arguing that the FDA cannot handle additional duties. But in the end, he could not gather enough support for a filibuster. His colleague from North Carolina, Sen. Kay Hagan, was the only Democrat to vote against the bill.

Philip Morris, the country's largest manufacturer of tobacco products, supported the legislation, saying it hopes to develop new reduced-risk offerings. The rest of the industry opposed the measure, saying it would freeze market share and give Philip Morris an unfair advantage.

The idea of tobacco regulation strikes some as nonsensical -- taking a product that, if used as directed, will kill a third of those who use it and placing it under the control of an agency charged with protecting public health. But health advocates argue that FDA oversight is the best hope for reducing the 400,000 deaths each year from tobacco use.

Under the bill, the industry will have to disclose the ingredients in its products for the first time, and the FDA could ban the most harmful of the estimated 6,000 chemicals used in cigarettes, cigars and other tobacco products. It could also reduce the amount of nicotine, perhaps to a point where tobacco is no longer addictive and smokers who want to quit can break free more easily.

The legislation requires tobacco companies to expand the size of warning labels so that they cover 50 percent of a pack, and to include graphic images of the health effects of tobacco, such as images of diseased lungs. Congress required warning labels on cigarette packs in 1965 and updated them in 1984.

Advertising and promotion will also be restricted. Tobacco manufacturers will be unable to use the terms "light," "mild" and "low" unless they can scientifically prove that the product so labeled is less harmful than standard tobacco.

The legislation creates a new tobacco center within the FDA that will be funded by fees from the industry. Those fees are estimated to reach more than $500 million annually by 2013, according to the Congressional Budget Office.

The FDA first tried to regulate tobacco in the 1990s under then-Commissioner David A. Kessler, but the industry battled it to the Supreme Court, which ruled 5 to 4 in 2000 that the agency had exceeded its statutory authority. It called on Congress to amend the law.

"All along, we thought it never made sense that the most dangerous preventable cause of death was not regulated," Kessler said yesterday from Boston, as he watched the Senate vote via C-SPAN.

By the time the Supreme Court rendered its decision, a curious thing had happened: Philip Morris, the maker of Marlboro, said it would accept some oversight.

At the time, Philip Morris executives were charting a strategy to improve the company's image and regain the social acceptance it had lost in the 1990s as evidence emerged that the industry had lied to the public about the addictive nature of nicotine. The company changed its name in 2001 to Altria Group; executives said they wanted to craft a new image untainted by cigarettes.

Exactly what the new legislation will mean for smokers will depend on how aggressively the FDA exercises its new power.

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