Attorney General Gansler Represents Attorneys General at White House Signing of Legislation Regulating the Manufacture, Marketing, and Sale of Tobacco Products

BALTIMORE, MD (June 22, 2009) - Representing Attorneys General from across the country, Attorney General Douglas F. Gansler today joined President Barack Obama as he signed the “Family Smoking Prevention and Tobacco Control Act” (Act) at a ceremony at the White House. This legislation (H.R. 1256 and S. 982) represents an historic step forward in protecting the health and safety of the public, particularly our youth, from tobacco use.

The “Family Smoking Prevention and Tobacco Control Act” amends the Federal Food, Drug, and Cosmetic Act (FFDCA) to authorize the Food and Drug Administration (FDA) to regulate the manufacturing, marketing and sale of tobacco products. Tobacco products will not be regulated under the “safe and effective” standard currently used by the FDA for other products, but under a new standard - “appropriate for the protection of the public health.”

“The past 10 years have changed the way society views tobacco use,” said Attorney General Gansler. “The Attorneys General are pleased that President Obama has made protecting our families from the hazards of tobacco use a significant priority. We welcome strong federal legislation that goes beyond the Master Settlement Agreement while at the same time is careful not to preempt State authority to enact other tobacco control measures.”

Among its many provisions, the legislation:

• requires all tobacco product manufacturers to register with the FDA and provide the agency with a detailed product list;
  
• replaces the existing health warning labels with more explicit health warnings in bold type occupying at least 50% of the front and back of the product package;
  
• requires the manufacturer of a new tobacco product to obtain FDA approval before entering the market, unless the new product is determined to be substantially equivalent to a tobacco product already on the market or it represents a minor modification of an existing product;
  
• requires manufacturers seeking FDA approval, in order to market a product with a reduced-risk or reduced-exposure claim (including the use of descriptors such as “light,” “mild,” and “low”), to provide scientific evidence substantiating that claim and agree to conduct postmarket surveillance;
  
• authorizes the FDA to regulate the sale, distribution, advertising and promotion of tobacco products in order to protect public health;
  
• prohibits flavored (other than menthol) tobacco products;
  
• requires the FDA to regulate Internet tobacco sales;
  
• authorizes the FDA to establish tobacco product standards requiring changes to the design and characteristics of tobacco products in order to protect public health (e.g., reducing nicotine yields and eliminating other harmful constituents);
  
• requires the FDA to develop new regulations for the testing, reporting, and public disclosure of tobacco product ingredients and smoke constituents;
  
• preserves the authority of states and localities to take additional measures to restrict the distribution, advertising, promotion, sale, access to, and use of tobacco products;
  
• instructs the FDA to issue new record keeping requirements to help counter the illicit trade of tobacco products; and
  
• assesses user fees on manufacturers to pay for the cost of FDA tobacco regulation.

November 2008 marked the 10 year anniversary of the Master Settlement Agreement.
The MSA, signed by the attorneys general of 52 jurisdictions and now more than 40 tobacco companies, imposed sweeping changes in tobacco advertising, banned the tobacco companies from targeting children, allocated funding for tobacco education efforts and provided the states annual payments based on the number of cigarettes sold in the country. The total payments over the first 25 years are projected to exceed $206 billion, and payments will continue as long as cigarettes are sold.

In the lawsuits filed by Maryland and other states, the attorneys general sought restraints against the tobacco industry and monetary damages for state funds spent treating smoking-related illnesses. The attorneys general also accused the companies of marketing tobacco products to children and of concealing the dangers associated with tobacco use.

Since 1998, Maryland’s actions to enforce the MSA’s marketing restrictions include:

• Youth Targeting Through Magazine Ad Placements: Maryland supported California’s successful lawsuit against R.J. Reynolds Tobacco Company (Reynolds) in 2001 to enforce the MSA’s prohibition against targeting youth in advertising, marketing or promotion by placing advertisements in magazines with substantial youth readership.
  
• “Kool Mixx” Hip Hop Promotion: Maryland, New York and Illinois sued Brown & Williamson Tobacco Co. in 2004 in connection with the company’s “Kool Mixx” hip hop music promotion. The resulting nationwide settlement ended the promotion’s objectionable aspects along with the tobacco company paying $1.46 million to fund youth smoking prevention programs in urban areas targeted by the campaign.
  
• Flavored Cigarettes: Following an investigation by Maryland and other states as to whether Reynolds’ flavored cigarettes violated the MSA’s prohibition against youth targeted tobacco marketing, Reynolds agreed to cease marketing its existing flavored cigarettes and to significantly restrict future marketing of any such cigarettes, including limits on using certain names and descriptors in its advertising.
  
• Camel Farm Rocks Indie Music Campaign: In December 2007, Maryland sued Reynolds alleging that its November 2007 advertisement in Rolling Stone magazine and the distribution of Indie Rock music CDs violated tobacco marketing prohibitions against cartoons and brand name merchandise. The State’s action is pending in Baltimore City Circuit Court.

Other significant actions by the Maryland Attorney General to prevent youth smoking or otherwise related to the MSA include:

• Smoking in Movies - Since 2003, in response to research linking children’s viewing of tobacco depictions in movies and their initiation of smoking, the Maryland Attorney General has been a leader in the nationwide effort to eliminate tobacco brand appearances in movies and to reduce the depictions of smoking in movies viewed by children. To date, several studios have inserted anti-smoking PSA’s in DVD movies and Time Warner, Inc. has begun certifying that no payment was received for tobacco depictions.
  
• Internet Cigarette Sales - The Maryland Attorney General’s actions to prevent illegal underage or untaxed cigarette sales over the Internet, including notifications to one hundred Internet cigarette retailers, have resulted in settlements with two online retailers, Dirt Cheap Cigarettes (2003) and Valucigs (2008).
  
• National Tobacco Retailers - The Maryland Attorney General has reached multi-state agreements with national tobacco retailers including Exxon Mobil, Shell, BP Amoco, CVS, 7-Eleven, Walmart and Rite Aid, to establish best practices to prevent underage tobacco sales in approximately 1600 Maryland locations.