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How Unexpected Opposition Killed a Landmark Tobacco Control Bill Sept. 8, 2004 Sep. 9, 2004 - Retired Surgeon General C. Everett Koop and former FDA Commissioner David Kessler are two icons of the public health community, recognized for their fight against the tobacco industry.
But when lawmakers created the most comprehensive tobacco control legislation in American history — a landmark deal that would have regulated the manufacturing and sale of cigarettes and put billions of dollars into anti-smoking campaigns — the two men turned their backs on it.
"They squandered a historic opportunity, and now we have a situation where none of their goals are being met," said Sen. John McCain, R-Ariz., who drafted the groundbreaking legislation.
For the first time, a senior executive of the country's largest cigarette maker has told ABC News about big tobacco's secret negotiations with public officials. And the major players in the case also speak about why the deal never happened.
The path to the deal began a decade ago, when Kessler was the commissioner of the Food and Drug Administration. He asserted that cigarettes were drugs, and it was time for the federal government to regulate how they were made and marketed.
Never before had a government official taken on the Big Tobacco companies, which had been extremely profitable for decades and appeared invincible. Tobacco had been blamed in the deaths of almost 450,000 people a year, but the industry had never had to pay a penny in lawsuits against it.
When the chief executive officers of seven tobacco companies testified before Congress for the first time ever, in 1994, they said they believed nicotine was not addictive. But then thousands of secret tobacco-industry documents revealed massive evidence that cigarettes were deadly and addictive, evidence the tobacco companies had long suppressed.
An avalanche of lawsuits against the companies began. Smokers sued, and then the government sued. "There was a sea change in attitudes about the tobacco industry in the United States," said Steve Parrish, a senior executive for Philip Morris in the 1990s.
Encouraged by the President
By 1996, the attorney general of Mississippi, Mike Moore, had managed to convince 19 other attorneys general to join him in colossal lawsuits against Big Tobacco.
Publicly, the industry was defiant. Privately, it was terrified. "We were looking for peace," said Parrish. "We were trying to convince the other side to let us surrender."
The Clinton administration thought that a settlement was in the public interest, and encouraged Moore to meet with the industry.
In their first meeting, the industry offered to make dramatic changes. They said they were open to regulation by the FDA. They said they were ready to pay hundreds of billions of dollars in health-care costs for which they had been sued.
And as a symbolic gesture, they even offered to give up two of their advertising icons, Joe Camel and the Marlboro man. All they wanted in return was some immunity from lawsuits — otherwise, they said, they would not survive.
The secret negotiations moved along quickly, until the public health community learned about them. Most of its big players were outraged by the offer of legal protection to the industry. "If negotiators … stand up and say there is an agreement, they do that at their peril," Kessler warned at the time.
Still, negotiations continued, with White House support. And on June 20, 1997, the attorneys general and the tobacco companies announced they had reached a settlement with more concessions from Big Tobacco than anyone had ever imagined possible.
The companies would ban advertising billboards and vending machines. There would be stronger warning labels on cigarette packages and full disclosure of what was in a cigarette. The companies would stop marketing to children. The companies would pay $368 billion to settle the states' lawsuits. They would fund anti-smoking campaigns on a permanent basis. And the companies agreed to be regulated by the government.
Consulting Kessler and Koop
There was just one more thing to do. The agreement had to be turned into a federal law, passed by Congress and signed by Clinton. Moore believed Clinton would embrace it, as he had encouraged the negotiations. But that support never came.
Instead, as 1998 began, Moore's effort was still under attack from the public health community. Then after nine months of lobbying to turn the settlement into a law, Moore found an ally in McCain.
In only three weeks, using Moore's settlement as raw material, McCain drafted a comprehensive tobacco control bill that was much tougher on the industry. He also consulted Kessler and Koop to make sure they would have no objections.
Kessler said McCain "cleaned up in that legislation much of the problems we had with the public health measures."
Moore says they added some provisions, tightened up some regulations and increased the advertising and marketing restrictions, inflating price of the bill from $368 billion to $515 billion.
But by then, the tobacco companies had gotten uneasy. They thought the legislation was getting too punitive and continued to insist on some legal protection from lawsuits in return for the public health benefits.
McCain's bill struck a compromise: Big Tobacco could be held liable for unlimited sums of money if they lost in court. But they would not have to pay more than $6.5 billion in a single year.
On April 1, 1998, McCain's bill was approved by the Senate Commerce Committee in a 19-1 vote.
Things Fall Apart
Everyone believed the bill was now on its way to becoming law. But that is not what happened.
Koop and Kessler were still critical. "If you told me that this segment had been written by a representative of the tobacco industry, I would fully believe you," Koop said at the time. Kessler said, "No bill is better than a watered-down bill."
The tobacco companies were alarmed. They thought this bad situation could only get worse. So they too turned against the bill, unleashing a huge ad campaign that cast the legislation as a tax increase.
Pro-tobacco senators added to the opposition, using Koop and Kessler's objections as ammunition. The legislation died in the full Senate.
McCain is convinced to this day that Kessler and Koop are responsible for the bill's defeat.
"I was deeply, deeply disappointed at the behavior of both of them," McCain told ABC News' Peter Jennings. "They both personally assured me that they would [support the bill]." The McCain bill was "everything you ever worked for, everything you ever wanted, you could have," Kessler said in a recent interview with Jennings. "But there's only one little catch" — the provisions that Kessler says would allow Big Tobacco to survive.
"It's not about the dollars," Kessler said. "It's about assuring the industry its future."
Parrish says the tobacco industry was surprised by the bill's failure. He says he remembers someone telling him, "These guys don't know how to say yes."
In the six years since the McCain bill failed, Congress has not passed a single piece of tobacco control legislation. And 2.5 million more Americans have died from smoking.
This summer, the Senate overwhelmingly approved a bill that would give the FDA the authority to regulate the sale, marketing and advertising of tobacco in return for buying out tobacco farmers.
The House has yet to vote on the bill and is considering a rival buy out bill.
Copyright © 2004 ABC News Internet Ventures
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