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FDA Mark-Up in Senate

On July 18, the Senate Health, Education, Labor and Pensions (HELP) Committee will markup and vote on S. 625, the bill to grant the FDA authority over tobacco products and their marketing.

The Committee will use Senator Kennedy's Chairman's Mark as its starting point. A draft Chairman's Mark circulated by Senator Kennedy includes a number of changes that the American Cancer Society, American Heart Association, American Lung Association, Campaign for Tobacco-Free Kids and our partners have been supporting, including:

Adds new language that explicitly prohibits manufacturers from claiming that any tobacco product has been approved or certified by the FDA.

Adds new language to make it clear that the bill does not block states in any way from prohibiting all or some tobacco product sales.

Increases user fees charged against the tobacco companies to fund FDA's new efforts regarding tobacco products and its marketing (and ensure that the FDA's new tobacco control efforts do not in any way impede FDA's other activities).

Clarifies that FDA will have authority either to increase or to decrease nicotine levels in any type of tobacco products in order to promote overall public health.

On July 12, Senator Enzi -- an aggressive opponent of the FDA tobacco legislation -- issued a press release attacking the FDA legislation as putting an FDA "seal of approval" on tobacco products. The change in the Chairman's Mark to explicitly forbid any seal-of-approval claims eliminates any remaining grounds for that attack.

One change, opposed by the Campaign for Tobacco-Free Kids, American Cancer Society-Cancer Action Network, American Lung Association and American Heart Association, would modify the legislation's automatic ban of flavored tobacco products so that it does not apply to clove. This change, however, would put clove in the same category as menthol, authorizing FDA to take action on its own to prohibit the flavor in order to promote public health.

The draft Chairman's Mark also includes a number of other small changes. The full Senate Health Committee will vote on the Chairman's Mark on July 18th. It is our hope that Senator Kennedy and the Democratic-Republican majority supporting the FDA legislation will be voting against any amendments by Senator Enzi and other opponents meant either to weaken or kill the bill. For example, opponents of FDA authority over tobacco products are likely to offer poison pill amendments, disguised as pro-tobacco-control measures, that would kill the bill's chances of passing the full Senate.