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House-passed tobacco legislation prompts heated reaction in Minnesota

WASHINGTON, D.C. — The U.S. House overwhelmingly passed a landmark tobacco bill today that would give the federal government sweeping and unprecedented authority to regulate tobacco products and advertising. Reaction in Minnesota was swift and sometimes extreme to the legislation that would have a significant impact on the state.

“Wow, I can only say, ‘fantastic,’ ” said Preston, Minn., City Attorney David A. Joerg.

“Simply put, it is unconstitutional,” rebutted Tom Bryant, executive director of the Minnesota Wholesale Marketers Association. “It could result in a new era of prohibition.”

The measure passed 298-112, but a tougher fight is expected in the Senate, where Sen. Richard Burr, R-N.C., has threatened a filibuster. North Carolina is the nation’s leading tobacco-producing state.

From Joerg’s perspective, the measure is long overdue. The city of Preston has a unique history with this type of legislation. “I’ll never forget,” said Joerg.
In 1994, the small city of about 1,400 banned advertising of tobacco products in all commercial establishments. Only black-and-white signs with simple lettering were permitted, according to Joerg.

“After they passed the ordinance, I had the joy of going into these stores and enforcing it,” Joerg said. “All complied, except one, which was the One Stop convenience store on the highway.”

The owner of that store sued the city, arguing that the ordinance violated the owner’s First Amendment rights and had hurt sales.

The city lost in district court with the judge ruling that the Federal Cigarette Labeling and Advertising Act preempted the ordinance. The 1965 law was basically a tradeoff between the federal government and the tobacco companies. It required tobacco companies to include health warnings on their cigarette packaging and print advertisements. In exchange, the legislation restricted states from enacting laws regulating advertisings or the promotion of cigarettes.

Now, more than a decade after the Minnesota district court blocked the city of Preston from limiting tobacco advertising in its stores, the House-passed legislation would give the secretary of the Food and Drug Administration (FDA) the power to do just that. The bill would allow the FDA to ban almost all advertising in facilities that are not adult-only (bars, for example, could advertise tobacco).

‘Serious outcome’
More broadly, the legislation would for the first time allow the FDA to regulate — but not ban — the contents of tobacco products, make their ingredients public and prohibit flavoring such as clove, strawberry and vanilla in tobacco products. It would also require larger warning labels.

“This is a very serious outcome for hardworking retailers who rely on tobacco sales as part of their business,” said Bryant.

Minnesota Democratic Reps. Tim Walz, Betty McCollum, Keith Ellison and Jim Oberstar voted for the bill, along with Republican Rep. Erik Paulsen.

“I think it’s the right thing to do,” said Ellison on Wednesday. “It’s going to save lives.”

Rep. Keith Ellison
Rep. Keith Ellison

The Obama administration also supports the legislation, a change from the Bush administration, which threatened to veto the House-passed measure last year.

At that time, the Senate failed to take up the measure because of resistance from a handful of tobacco-state lawmakers. This time around, supporters of the measure have said that the Senate is likely to take up their version of the bill later this month.

House lawmakers opposed to the measure, however, argued Wednesday that the bill had deep flaws.

They cited what they called the FDA’s shoddy regulatory track record, the potential for the legislation to hurt farmers, and possible First Amendment concerns.

Rep. Steve Buyer, R-Indiana, offered a bipartisan amendment that he argued addressed these issues. Among other differences, it would have created a different agency within the Health and Human Services Department to regulate tobacco products.

Rep. Collin Peterson
Rep. Collin Peterson

Minnesota Democrat Collin Peterson voted for the amendment along with Minnesota Republican Reps. John Kline and Michele Bachmann. Paulsen also voted for the amendment before voting for the main bill after the amendment failed by 284-142.

“I am with the [tobacco] growers,” said Peterson, who chairs the House Agriculture Committee. “They are concerned about losing jobs and losing the industry. This is largely to support them.”

But, the American Lung Association and the American Medical Association opposed the Buyer proposal, saying that it would not provide adequate regulation of tobacco companies.

Cynthia Dizikes covers Minnesota’s congressional delegation and reports on issues and developments in Washington, D.C. She can be reached at cdizikes[at]minnpost[dot]com.

Comments (10)

  1. Submitted by Robert Moffitt on 04/02/2009 - 03:13 pm.

    We at the American Lung Association of Minnesota have been supporing this action for the last 10 years. Today, we came a step closer to seeing this bill become law.

    All eyes are on the Senate now.

  2. Submitted by Ron Gotzman on 04/02/2009 - 04:31 pm.

    The Big Gov types need to have enough guts to outlaw this product. Run for election on that platform. If this product is so “evil” and “kills” people, ban this product in order to save lives.

  3. Submitted by david granneman on 04/02/2009 - 09:02 pm.

    hello all
    i hear all these politicians say how wonderful this tax is – why it will save lives. these politicians do not care if it saves any lives, they are just interested in getting more tax money. they know they have a group of people, many poor, who are adicted to a product. they know they can continue to punish these people with higher and higher taxs, and know that many will be unable to quit smoking. these politician know if, in fact, everybody would quit smoking the state would suffer a great monitary loss and there would be no money for the children’s health care. they don’t feel your pain, they just feel you wallet.

  4. Submitted by Rich Little on 04/02/2009 - 10:10 pm.

    I’m not shocked that Peterson voted against it; the man is a chimney!

  5. Submitted by Robert Moffitt on 04/03/2009 - 06:55 am.

    Err, David, the subject here is FDA authority over tobacco, not the higher federal excise tax on tobacco prodocts that began April 1. But since you bring it up, tobacco-related illness cause much more economic harm to lower-income Americans than this increased tax does.

    Also, there is a loophole the poor and others can use to avoid paying — just quit.

    The American Lung Association of Minnesota supports both the FDA authority and the new federal tax on tobacco.

  6. Submitted by John Olson on 04/03/2009 - 07:32 am.

    I’m in agreement with Ron on this one…if the anti-tobacco folk want the product banned, have the courage to stand up and say so. And as David points out, tobacco is heavily taxed and is generally considered to be one of the most regressive of any tax. Historically, tobacco usage has been heavier among people with lower incomes.

    The goal has always been to reduce consumption of tobacco products through tax policy and marketing/sales restrictions. Fine. Those debates are done and over with. Few will argue that reducing consumption of tobacco has individual and societal benefits in terms of reduced health care costs, etc. However, the recently enacted federal tobacco tax increase is going to offset health care expenditures for children (SCHIP, I believe). If consumption drops, so do the tax revenues.

    Two different policy goals emerge here that are not compatible with each other. One is to raise tax revenue. The other is to reduce consumption. Reducing consumption reduces tax revenues.

    My question is what impact federal law changes would have on Native Americans selling tobacco on tribal lands. If Congress were to try and ban the product through legislative and/or regulatory actions, do those actions affect sales on the reservations?

  7. Submitted by Robert Moffitt on 04/03/2009 - 09:01 am.

    The anti-tobacco folk (I’m one of them) don’t want a total prohibition on tobacco sales, John. We have never called for that, as we think it just wouldn’t work any better than the total prohibition of alcohol did.

    The primary goal of the federal tax increase was to fund and expand the SCHIP program. As a result, an additional 4 million kids form low-income families will be elligible for coverage.

    You are correct in noting that higher costs DO lead to more people quitting, especially younger smokers and “social” smokers. Smokeing cessation calls to our Lung HelpLine are up sharpely this week.

    This federal tax increase also applies to Native Americans.

  8. Submitted by John Olson on 04/04/2009 - 05:48 am.

    Forgive me if I’m still laughing Robert. I think I get it now. You and your coalition partners need tobacco around so you can continue to generate publicity. And raise money.

    Since the initial passage of Clean Indoor Air Act in the 1970’s and the other public policy and court victories since then, you and your coalition have all but “run the table.” Of course, a lot of the settlement money has all but gone up in a puff of smoke to help balance the budget (couldn’t resist, sorry).

    There is really only one big public policy mountain left to climb: an outright ban. And because “it is there,” *someone* is going to try. And if history is any guide, I won’t be the least bit surprised to see that someone try it right here in Minnesota.

  9. Submitted by Tom Poe on 04/05/2009 - 12:19 pm.

    There are a lot of flapping jaws, all relying on the talking point of saving lives. I’ve yet to see one of them mention anything about smog, air pollution, and saving lives. Signing a death certificate with cause of death due to smog was outlawed decades ago. Why? But, hey, what’s a little hypocrisy now and then, right? By the way, the studies on second hand smoke were done in what cities? The biggest study was done in Birmingham, one of our nation’s dirtiest cities. Why?

  10. Submitted by Gregory Lang on 04/06/2009 - 12:48 pm.

    There is a strong chance that the US Supreme Court, which permits advertising for prescription drugs will find this law unconstitutional.

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