Richard Burr

Mr. BURR

Mr. BURR. Mr. President, I thank the doctor from Oklahoma, my colleague, my friend. Let me say from the start, 3\1/2\ years ago, Tom Coburn and I sat down and realized health care was unsustainable at its current level of investment. The American people have complained because they have seen a process that has gone too quickly. Well, in the Patients' Choice Act you find 3\1/2\ years worth of work--a bill that was designed to take 4 years before we thought we had the right information we needed to do health care reform adequately. With the change in the administrations, the new President and his timeframe, we accelerated it. But let me say, right from the start, it is unsustainable at its current level of investment. It is 17 percent of our gross domestic product. Health care has to be reformed. I personally believed the debate we were going to have in Washington was over what type of reform. Dr. Coburn raises a good point: cost. Where are we from the standpoint of our Nation? I happened to gaze, as I was waiting for the last speakers to finish, on the page of this publication. It says: Baucus Bill Projected at $829 billion. In the small box down at the bottom of the page--CBO: Deficit Hits Record $1.4 trillion for Fiscal Year 2009. Common sense would tell you that when you are in the type of financial shape the United States of America is in, not only do you stop spending, you begin to look for ways to curb spending and a way to invest to reduce the deficit. Because the deficit is what our children and our grandchildren will inherit. If you believe it is unsustainable at its current level of investment, then you sort of understand where Dr. Coburn and I are coming from. The worst place we can start is: How much more money do we need to spend to do health care reform? But the truth is, the Baucus plan is not health care reform. It is health care expansion. The debate in Washington is not about how to reform health care. It is about how to expand health care. And once you determine the pool you are going to expand it to, the $64 million question is: How do we pay for it so the CBO says we have paid for it? What I would like to do is spend a little bit of time exploring how the Baucus plan pays for it with the caveat up front of saying--as it relates to Dr. Coburn and myself--we don't believe we have to spend more to reform health care. I think from what he said about the Patients' Choice Act, we have made the point. We were the first two people in the Congress--House or Senate--to introduce comprehensive legislation. We cover the same amount of additional Americans that the Baucus plan covers. We do it without making additional taxpayer investments in the expansion of coverage. Why? Because in addition to expanding coverage, we reform health care. We actually bend the cost curve. We change the tax application to where it is fair and equal for all people. What we have to realize is, the Baucus plan is a 10-year plan. We collect revenues for 10 years and we pay out for the expansion in 6\1/ 2\ years. Let me say it again. We are collecting tax revenues for 10 years, but we are only paying benefit expansions for 6\1/2\ years. We have to look at years 10 through 20 if you want to see 10 years' worth of revenue collection and 10 years' worth of expenses. As a matter of fact, if you took the first 10 years and you applied what is done in the bill and said: Well, if they started making payments in the first year, this bill would actually cost $1.8 trillion, not $829 billion but $1.8 trillion. Incorporated in the Baucus bill are cuts to Medicare, cuts that equal $449 billion. Dr. Coburn talked about the imminent reduction to physician reimbursements: 21 percent projected. We all agree we are never going to make that. One of the attractions for health care professionals was the Baucus bill said in year one, we are not going to make those cuts. Well, they are going to cut Medicare over 10 years by $449 billion. This is giving with one hand and taking away with the other hand. Health care professionals around this country have realized that, even though their association that represents them doesn't. The Baucus bill cuts $117.4 billion in Medicare Advantage. My colleagues are probably saying: What is Medicare Advantage? Well, it is the preferred plan of 20 percent of America's seniors. Twenty percent of our seniors on Medicare have chosen Medicare Advantage, a private sector option to traditional Medicare, where they have looked at the two and they said: I would rather have Medicare Advantage, because when I go in the hospital, Medicare is going to charge me a $750 deductible right off the bat. Medicare Advantage? Zero. For traditional Medicare, you are going to have to have Part A, Part B, Part D. Medicare Advantage, you get it all as one lump sum. You don't have to make separate selections. They provide you the doctor coverage, the hospital coverage, the drug coverage all in one plan. Why is it under the target of some in Washington to cut $117 billion? They say it is because we pay 114 percent of Medicare per person allocations to Advantage, where we pay 100 percent in traditional fee for service. That is exactly right. I remember the debate we had in Washington when we did it. Because the objective then was: How do you get Medicare Advantage to offer this plan in rural America? To offer it in rural America meant you had to offer a greater reimbursement. This isn't reflective of a windfall for the insurance companies; it was an incentive to offer this choice not just to urban seniors but to seniors everywhere in America. In my State of North Carolina, 17 percent of all the Medicare beneficiaries are enrolled in Medicare Advantage. When anybody gets up and says pass this bill, the Baucus bill, and you can keep your health care if you like it, there is a caveat to that. Unless you are 17 percent of the seniors in North Carolina or you are 23 percent of the seniors nationally, you lose your plan. You are going to go back into traditional Medicare. You are going to go back to where, when you enter the hospital, they are going to say write me a check for $750 annually; where your Part B is a separate payment; where your Part D is something you have to figure out as to which plan you want versus something that is seamless and covers everything. I will assure everybody a $117 billion cut to Medicare Advantage will eliminate that product from the marketplace. Nobody will offer it. Twenty percent of America's seniors will lose the insurance they prefer, not keep it. Medicaid expansion. It seems like a sensible way to go if you want to expand coverage, which is where the debate has been in Washington. Well, let's simply take a coverage tool that is out there today-- Medicaid--and let's raise the income limit so more people qualify for it. So instead of 100 percent of poverty, we raise it to 133 percent of poverty. It costs $345 billion. There is $33 billion in direct State spending. As Dr. Coburn said, four States are sort of split out of it, and they say: Well, we are not going to charge you because you are in tough economic times. Well, North Carolina is at 10.8 percent. Why aren't we included? Our cost, when the Federal Government makes North Carolina ante up, is going to be south of $1 billion a year for a State that had a $4 billion shortfall. Where is my Governor in her outrage at the proposal to expand Medicaid to 133 percent of poverty? The tough thing is, this plan has been sold that it is not going to cost anybody anything, and the truth is it is going to cost seniors, it is going to cost taxpayers, it is going to cost the unemployed but, more importantly, it is going to cost people who have health care insurance today. People who have the money to purchase theirs and people whose employer offers them health care, their cost is going to go up because of the restrictions and the mandates that exist within the Baucus bill. The Baucus bill would impose an annual $6.7 billion fee on insurance companies; $6.7 billion a year; over 10 years, $67 billion. So a $67 billion new fee on the insurance companies that we are trying to make the American people believe are going to reduce premiums, reduce costs, and we are sticking them with a $67 billion pricetag. There is nobody in America when they hear this who believes that health care is going to go down for the American people. For every person who currently has a plan today, I will assure my colleagues their premium will go up. They will pay more money, not less money. We grow the IRS. There is something we haven't talked about because of the requirements in this bill to collect fees and to collect taxes. It is estimated by the Lewin Group that the IRS would need a 25-percent increase in their budget. The IRS currently gets $12 billion annually for their administrative costs. The administration costs for implementing the exchange subsidies would add nearly $40 billion from the Baucus bill. We have additional costs at the IRS because we have to increase by 25 percent the IRS requirements to go and collect and enforce this. We tax the chronically ill. I thought this one was one of those myths that late night TV talks about. We tax the chronically ill in the Baucus bill. Let me explain what I mean. Current law says that if your health care charges exceed 7.5 percent of your annual income, then you can deduct that off your taxes. Clearly, the lower your income, the more likely you are to utilize the 7.5 percent exclusion. So what does the Baucus bill do to raise money? It raises the exclusion to 10 percent. Instead of at 7.5 percent of your adjusted gross income being able to deduct anything that exceeds that, it says you have to exceed 10 percent of your adjusted gross income. For somebody who makes $1 million a year, this is no big deal. They probably have more than enough insurance to take care of it. For somebody who is on a limited income; for somebody who maybe doesn't have all the insurance they need; for somebody who walks in and is chronically ill, has a chronic disease and they are making payments, they are covering their copays, they occasionally go to the hospital, they have that $50 charge for walking in the door, even though they have insurance. They are making it at the end of the year, even though they make $20,000 or $25,000 a year, and all of a sudden, 2\1/2\ percent of their adjusted gross income is no longer a deduction they get. What is that? That is taxing the chronically ill in this country. Listen, I have to give them credit. They have left nobody out of this bill from taxes. They have left nobody out of this bill from instituting a new fee. As a matter of fact, some of it we are going to have to take for granted is going to be applied to us in an indirect way because incorporated in the Baucus bill we collect a new device tax. To the heart patient who goes in and gets a heart catheterization, to the senior who goes in and gets a hip replacement, it is a device. For any medical device that is used, there is a $40 billion device tax over 10 years. What does that do for the innovation of new devices? Dr. Coburn can speak to it better than I can. When we were able to switch from open heart surgery to bypass surgery, we probably went from $40,000 or $60,000. When we were able to catheterize somebody and put a stent in, we reduced significantly the cost, we reduced significantly the invasion, we were able to raise the quality of life. We couldn't have done that if somebody hadn't innovated a cath and a stent. We would still be doing all bypass surgeries. You think through all the medical procedures we do in this country and you think about all the devices that have been created by companies and by doctors so they can be less invasive because they understand every time they go into somebody, every time they cut in, there is a fear of infection today; there is a consequence of recovery. It means a stay in the hospital is longer. When you see a new device enter into the marketplace, you actually see a new efficiency come into health care. You see reduced health care costs because you are taking either somebody out of an inpatient setting and you are putting them in an outpatient setting, or you are taking an inpatient patient and you are getting them out of the hospital faster. Actually, you could make the case that innovation of medical devices is health care reform because it is driving down costs, because it is moving patients out, and the net result is the quality of life goes up. But, in this bill, we raise $40 billion over 10 years, or $4 billion a year on taxes on devices. If you listen to the things I have talked about, you are probably sitting at home trying to figure this out: I am going to pay more in health care because they are taxing devices. I am going to pay more in health care if, in fact, I have a chronic illness because I am not going to be able to deduct that out-of-pocket cost that is between 7\1/2\ percent and 10 percent of my adjusted gross income. I am going to have to cover, as a taxpayer, a 25-percent expansion in the IRS. They are going to impose a $6.7 billion so-called fee on the insurance industry, or $67 billion over 10 years, while I have an insurance policy, so that fee is going to be passed through to me as a covered life under the insurance plan. I am going to pick up, in the State in which I live, the increase in the limitations on Medicaid when we go from 100 percent of poverty to 133 percent of poverty. How can you make a claim that this bends the cost curve? If you tried to make the claim, it bends the cost curve up not down. Dr. Coburn and I listened very intently as the President kicked off this debate: Create a program that provides coverage for as many Americans as we possibly could. We did that. Bend the cost curve down. Well, we make a direct investment in prevention, wellness, and chronic disease management--the only three direct areas of savings in health care. We can talk all night about tort reform and about different aspects. They are indirect and there are significant savings we can achieve by incorporating those reforms into health care. In the Patients' Choice Act, we elected to keep it narrowly targeted, and we invest in prevention, wellness, and chronic disease management. Why? Because we went to States, businesses, and self-insured companies that went 4 years and didn't have an increase in health care costs. Why? Because they changed the lifestyle of their workers. They actually paid their workers, in some cases, to quit smoking, to lose weight, to get exercise, or to take an education program on a chronic disease they had to make sure they got the treatment they needed. The net result? In every case, the per-enrollee savings were so significant that the companies continued to try to figure out how they could spend more to reduce health care costs. The quality of life for their employees was better. The productivity of the employees was better, and they had no annual increase in their health care costs. We are sitting here ignoring everything that has been learned in America by private self-insured companies and by some insurers who are doing creative things, targeting chronic disease, and actually paying doctors to educate. We have ignored all of this. Why? Because we are having a debate in Washington with the Baucus bill about coverage expansion, not about health care reform. Coverage expansion costs a lot of money--$829 billion. We are having that debate and telling the American people this is about reform. If you read the fine print, the bottom of the page, and if you read the part they don't want you to remember, it says this year alone there is a $1.4 trillion deficit. That is $1.4 trillion we didn't have that we had to borrow. The last thing we need is more money in health care. It is 16 percent of our GDP, and we cannot maintain that level of investment. The challenge is on us to come up with the reforms that continue to invest and promote innovation, that expand coverage and, more important, reduce costs. What do the American people want? They want health care costs to go down, and they want quality to go up. We don't accomplish that in the Baucus bill, but you do in the Coburn-Burr bill. It is not perfect, but it heads in the right direction. I yield to my good friend from Oklahoma.

Mr. BURR

Mr. BURR. Mr. President, I rise to express my thoughts on the nomination of Judge Sonia Sotomayor to be a U.S. Supreme Court Justice. Votes on Supreme Court nominees are among the most important cast by a Senator. These nominations warrant a full and in-depth debate. We are, after all, considering a lifetime appointment to the highest Court in the land. I will not spend much time this morning going through the impressive background of Judge Sotomayor because I think all Members agree that her experience and her academic credentials meet the threshold of what the American people expect in a Supreme Court Justice. As an alumnus of two of the most prestigious schools in the Nation with a lengthy judicial record, Judge Sotomayor is certainly a quality nominee for the post. I am also sure she has inspired many throughout her noble career. More important than the Ivy League schools and the length of public service, however, is the judicial record of a nominee and the decisions she has made during her tenure on the bench. While many see a lengthy judicial record as something that could only be considered a positive factor in determining a nominee's suitability to serve on the highest Court in the land, others, including myself and many of my constituents, see it as an opportunity for a panoramic view into the decisionmaking process of a nominee. Just as I looked into the background and experience of Judge Roberts and Judge Alito, I did the same thing with Judge Sotomayor. With all the years she has served on the Federal bench, she has plenty of case material to examine and consider. Among the most important factors in determining one's suitability for the High Court is the nominee's understanding and appreciation for the role they are about to take on. Other than having the ultimate say in the judicial branch's analysis of the case at hand, the proverbial last word, it is no different than a judge's role on any lower court. I believe a judge's role is to adhere to the longstanding case precedent and to apply the law according to a strict interpretation of the Constitution. Let me say that again because I believe it is too important to go unheard. I believe a judge's role is to adhere to the longstanding case precedent and apply the law according to the strict interpretation of the U.S. Constitution. That is my understanding of the judge's role in our country. Others may have different views, and they certainly are entitled to them. As I have said, I am troubled by her decisions in cases where she has appeared to rely on something other than well-settled law to come to a decision. My fear is that she was unable to separate her personal belief system from that of the letter of the law. In our one-on-one meetings, Judge Sotomayor gave me her assurances that she would stick to the letter of the law. Her judicial record indicates otherwise, particularly in a couple of very significant places and recent occurrences. While my colleagues have mentioned both of them prior to me stating them again, today I think they bear repeating. Both cases highlight how Judge Sotomayor adheres to applicable case precedent. First is the Ricci case. I think it is important to take a close look at her decision in Ricci v. DeStefano. This is a case where she dismissed the claims of 19 White firefighters and one Hispanic firefighter who alleged reverse discrimination based on the New Haven, CT, decision not to use the results of a promotional exam because not enough minorities would be eligible for promotion. In the Ricci case, she rejected the firefighters' claim in a one-paragraph opinion. When questioned about it in the confirmation hearing, she maintained she was bound by precedent. A potentially and ultimately legal landmark case warranting a careful and thorough review of the facts at hand and the law to be interpreted, and Judge Sotomayor dismissed the claim in one paragraph. Clearly, a case with issues involving race and discrimination deserved more than a one-paragraph explanation and analysis. Even the Obama Justice Department could not defend her actions and submitted a brief to the Supreme Court on the matter. In it, they agreed that the decision by Judge Sotomayor should be vacated and that further proceedings on the case were warranted. This is the Justice Department of the Obama administration. When the Supreme Court issued their opinion in the case, they stated that the precedent relied on for her decision did not exist. When pressed in the confirmation hearing about her decision, she avoided citing the particulars and simply explained that she was following established Supreme Court and Second Circuit precedent. The most troubling thing for me to grasp about this response is the Supreme Court says, in their reversal of her decision, that precedent for Ricci did not exist at all. It was a 5-to-4 decision by the Supreme Court, but all nine Justices disagreed with her reasoning--a unanimous rejection of her argument by the Supreme Court. The Supreme Court said precedent did not exist. Maloney v. Cuomo, a second amendment case, is another decision of Judge Sotomayor that troubles my impression of her ability to separate her own beliefs from that of the letter of the law. It was just decided this year--so recently, in fact, that it has not even had a chance to be reviewed by the Supreme Court. Not to rehash the facts of the case in too much detail, but in Maloney v. Cuomo, Judge Sotomayor was faced with determining whether an individual right--in this case, the right to bear arms--could also be enforced against a State. She decided the Maloney case after the historic Heller decision specifically concluded, without any explanation, that the right to bear arms is, in fact, not a fundamental right--a conclusion no other court has ever reached. As a matter of fact, I cosponsored an amicus brief which supported the argument that the right to bear arms is a fundamental right and one that could not be taken away by government without the highest standard of review. This was the argument that ultimately favored the Supreme Court in their decision. To me, a nonlawyer, her decision in Maloney stands directly contrary to what the Supreme Court had just concluded in the Heller case. So not only did the Supreme Court set the precedent, she ignored the precedent of Heller in the ruling of the Maloney case. How could Judge Sotomayor so distinctly and openly come to the conclusion that bearing arms was not, in fact, a fundamental right when the Supreme Court, just months before, ruled the opposite way? Where did her reasoning come from? I am troubled by the lack of deference and adherence to the High Court's decision, and it leads me to call into question the commitment she made to me in a one-on-one meeting. Actions, in this case--actually, decisions--speak much louder than rhetoric. These are just two recent, clear examples of where her record as a judge, while lengthy, caused me to call into question her ability to apply case precedent to come to a decision that would affect the lives of North Carolinians and the whole Nation. These two decisions I have cited are not examples of missteps early in her career or decisions based on lack of experience. These are decisions Judge Sotomayor made after 17 years of experience on the Federal bench. These are decisions made within the last year or so by a seasoned Federal judge who is being considered for a lifetime appointment to the Supreme Court of the United States. My esteemed colleague from North Carolina mentioned in her speech supporting Judge Sotomayor that the late Senator Jesse Helms, who was a dear friend of mine, supported the nomination of Judge Sotomayor to be a judge on the Second Circuit Court of Appeals. What Senator Helms did not have when he reviewed her nomination, however, was the benefit of Judge Sotomayor's judicial record during her decade of service on the appellate court. It is imperative that all Members of the Senate look at the cases judges have decided and not just say they have been through the confirmation process in the Senate, therefore it should be automatic the second time. Their decisions weigh on the relevance of their nomination and on their confirmation. I am sure her impressive academic and professional resume influenced Senator Helms, and I am sure he gave her the benefit of the doubt without any reason to question how she might rule on the bench. I have, and the Senate has, the benefit of reviewing Judge Sotomayor's actual decisions as a circuit judge, in addition to her statements to the record. I have the benefit of seeing if she stuck to the letter of the law as she stated she would do in testimony when nominated for the appellate court in 1998. She has not stuck to the letter of the law. In 1998, she said, in response to a question from the current ranking member of the Judiciary Committee: Sir, I do not believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it. Quite frankly, I believe she bent the Constitution when she ruled in the Maloney case that the right to bear arms was not a fundamental right of the American people. I have repeatedly said that the decisions made by the Supreme Court affect the lives of every American. After taking into consideration Judge Sotomayor's answers to my questions, reviewing her decisions that appear to have departed from the normal principles of jurisprudence, I find little predictability in her decisions and the implications they might have. I am concerned by the several examples where I believe Judge Sotomayor strayed from the rules of strict statutory construction and legal precedence and went with her own deeply-held beliefs, while providing little in the way of explanations. Therefore, I am unable to support her nomination to the Supreme Court. I realize, at the conclusion of the next several days, Judge Sotomayor has the votes to be a Justice. I will continue to watch the decisions she makes based upon the answers she provided to me. But as most, if not all, have stated, this is a lifetime appointment. The debate that happens over the next 48 hours will determine, in many cases, whether a change might happen in this nomination. We cannot end this debate without the realization that we will live for generations to come with the decisions of this Court, the next Court, and the next Court. It will be just as incumbent on Members of the Senate in the future to make sure that those nominees are debated thoroughly, that their records are reviewed in great detail, and that their pledge to protect the Constitution and to follow it as a Justice is upheld. My hope is that I am incorrect about how Judge Sotomayor will, in fact, use the Constitution. Today, I announce that I will vote against her. I yield the floor.

Mr. BURR. I ask unanimous consent that the Republican time for the next hour be allocated as follows: 15 minutes to myself, 15 minutes to Senator Martinez, 10 minutes to Senator Bond, and 20 minutes to Senator Cornyn.

Mr. BURR. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BURR

Mr. BURR. Mr. President, I rise today to introduce legislation that will ensure the Department of Veterans Affairs provides health care to veterans and their families who were stationed at Camp Lejeune, North Carolina during the years when the base's well water was contaminated by numerous known and probable human carcinogens. Thousands of Navy and Marine veterans and their families who lived on Camp Lejeune have fallen ill with a variety of cancers and diseases believed to be attributable to their service at the base in the years before the EPA designated the base as a Superfund site in 1988. A recent National Research Council report on the contaminated water at Camp Lejeune assessed that there are numerous adverse health effects associated with human exposure to the chemicals known to have been in water at Lejeune that was used for drinking and bathing. Many years have passed while Lejeune veterans and their families have waited for some hope of progress on this issue. Some have died waiting. Today, there is much that we now know that was not known in the past, especially a growing body of scientific information about the adverse effects these chemicals have on the human body. The Lejeune veterans and their families deserve clarity on the cause of their conditions and closure on this tragic situation. It is vitally important we give those who are sick the benefit of the doubt. If a veteran or military family member was stationed at Camp Lejeune during the time the water was contaminated, they should be able to come in to a VA medical center for needed health care. This bill is a step toward providing the veterans of Lejeune and their loved ones with the respect they deserve. Quite frankly, it is the morally right thing to do.

Mr. BURR

Mr. BURR. Mr. President, I rise today to introduce legislation that will ensure the Department of Veterans Affairs provides health care to veterans and their families who were stationed at Camp Lejeune, North Carolina during the years when the base's well water was contaminated by numerous known and probable human carcinogens. Thousands of Navy and Marine veterans and their families who lived on Camp Lejeune have fallen ill with a variety of cancers and diseases believed to be attributable to their service at the base in the years before the EPA designated the base as a Superfund site in 1988. A recent National Research Council report on the contaminated water at Camp Lejeune assessed that there are numerous adverse health effects associated with human exposure to the chemicals known to have been in water at Lejeune that was used for drinking and bathing. Many years have passed while Lejeune veterans and their families have waited for some hope of progress on this issue. Some have died waiting. Today, there is much that we now know that was not known in the past, especially a growing body of scientific information about the adverse effects these chemicals have on the human body. The Lejeune veterans and their families deserve clarity on the cause of their conditions and closure on this tragic situation. It is vitally important we give those who are sick the benefit of the doubt. If a veteran or military family member was stationed at Camp Lejeune during the time the water was contaminated, they should be able to come in to a VA medical center for needed health care. This bill is a step toward providing the veterans of Lejeune and their loved ones with the respect they deserve. Quite frankly, it is the morally right thing to do.

Mr. BURR

Mr. BURR. Mr. President, an OLF at any of the proposed sites in North Carolina and Virginia would create 52 jobs. Fifty-two jobs, for a 30,000-acre footprint. The location at the Hale's Lake site is a 38,000-acre farm that currently employs 90 employees and has a local economic impact of approximately $6.5 million. Let me say that again. We are being asked to consider a 30,000-acre footprint at Hale's Lake where we are going to take 90 jobs and we are going to replace them with 52 jobs, where they have $6.5 million worth of economic impact and we are going to go to a situation where the Federal Government doesn't pay property taxes. The core of the Sandsbank outlying landing field site contains 1,269 acres of wetland. Let me say this again. The core of the Sandsbank 30,000 acres contains 1,269 acres of wetlands. In October of 2007, the North Carolina Division of Water Quality recommended that the Sandsbank site not be pursued. Why? Because of the significance of wetlands. I say to my colleagues--and I think we will probably lose this amendment and we will have a voice vote on it--I think it is important to understand, North Carolina has taken option after option after option to the Navy. As a matter of fact, this is our second round after they shortcut an environmental impact study and the courts got involved for a site they had picked and had already purchased the land. They are now in the unusual position of having a lot of land and they can't build the site there based upon where the environmental impact study sent them because they were trying to put it next to one of the largest migratory bird areas on the east coast. Not a smart thing when you want to have pilots taking jets in. It has to go through the environmental impact study whether they pick the Sandsbank site or whether they pick the Hale Lake's site. So I am not sure if the EIS will allow them to go to Sandsbank where there are 1,269 acres of wetlands that will be incorporated into this. Those are all out there. We have communities today that are being affected. They are being affected by the fact that property can't sell, that people don't want to move there because they don't know whether there is going to be a naval jet base. They don't know whether there is going to be a 30,000- acre protected area where all night long you are going to have aircraft going in, and it only produces 52 jobs for the local community. Not a very good trade-off on the part of North Carolina. Not a very good action on the part of the military. I ask my colleagues--I think we probably know the outcome of the vote, but we have to be vigilant. North Carolina is an incredible State when it relates to our military. That doesn't mean that the military can walk in and make a decision that is inconsistent with what is good for our State, and potentially forces an adverse relationship between the State and the military. They pushed it in and that is why the General Assembly did what they did. It is my hope that as this bill moves through conference, since the House has this provision in it, at least this provision will prevail. I thank my colleagues, I thank the Chair, and I thank the ranking member for their understanding and allowing me to bring this amendment up. It is important that every Member understand what is involved and at the core of this. It is the lives of the people in North Carolina. It is the ability to have predictability in the future and not necessarily a decision that may linger for 6 or 7 or 10 years with individuals not knowing what the disposition of the Navy decision is going to be and, therefore, a market for their property or the plans for the next generation of farmer as it might relate to Hale's Lake, not knowing exactly how to plan their lives. I would suggest that we call the question on this amendment.

Mr. BURR. Mr. President, most Members don't know much about this amendment. If you are not from Virginia or if you are not from North Carolina or you are not on the Armed Services Committee, this amendment will probably not make a lot of sense. This is about the proposed acquisition of land in North Carolina for an outlying landing field for carrier-based aircraft to practice their touch and goes for the purposes of night takeoffs and night landings. This is not new to North Carolina. Let me say to my colleagues, I don't think there is a State more friendly to the military than North Carolina. We are home to Fort Bragg, the Pentagon of the Army; we are home to Camp LeJeune, the east coast hub of the Marine Corps; Seymour Johnson Air Force Base. Our communities don't just welcome the military, they support the military. I think it is the most military- friendly State you can find. There is no military family that is stationed within North Carolina that has not been extended in-State tuition regardless of how long they are there or whether their kids are still in education once their parents might have been deployed elsewhere. This is not an issue of ``not in my backyard.'' There are two proposed sites. One thing my amendment very clearly does is it prohibits the establishment of an outlying landing field at the proposed Hale's Lake, Camden County/Currituck County landing sites and the Sandbanks, Gates County sites in North Carolina. It says to the Navy: You have to take them off your list; you can't include them. The Navy is proposing to construct an outlying landing field for their carrier-based fixed-wing aircraft squadrons stationed in Virginia Beach at the Naval Air Station Oceana. They propose to acquire 30,000 acres. So they get 30,000 acres to allow for the accommodation of fee- simple purchases, the purchase of restrictive use or through conservation easements. Approximately 2,000 acres would be used for the core area, which would include an 8,000-foot runway. Think about 30,000 acres relative to the airport that is in your local community and you get an idea of how much bigger this footprint is. I said earlier this is not about ``not in my backyard.'' As a matter of fact, North Carolina has proffered to the Navy currently a Marine air station in Cherry Point as a potential OLF site where we already have squadrons of Marine aircraft. We have the capacity and, more importantly, we have a community that wants to have this site. The Navy doesn't support the Cherry Point proposal, supposedly because it is considered to be in a location too far from Oceana. Well, let me describe for my colleagues, when you draw the line that says anything outside of this is too far, Cherry Point falls 20 miles outside of the line they have drawn. Twenty miles is the glidepath to land and the glidepath to take off. We are not talking about a big distance. It doesn't seem to make sense why the Navy is looking to condemn 30,000 acres for the purposes of constructing a new facility instead of using an existing facility, an existing military base that would be much more efficient and cost effective for the Navy and, more importantly, cost effective for taxpayers. Why am I here? Why is Senator Hagan offering this amendment? Because the people in Gates County, in Currituck County, in Camden County, don't want it. The Navy went into this process saying: If people don't want us, we won't go there. The truth is it doesn't stop there. I wish to enter into the Record, if I may--on May 27, 2009, the North Carolina General Assembly unanimously passed a bill, House bill 613, which states that the consent of the State is not granted to the Federal Government for acquisition of land for an outlying landing field in a county or counties which have no existing military base where squadrons are stationed. I ask unanimous consent to have printed in the Record this document, as well as a letter from the president of the North Carolina Senate.

Mr. BURR. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. BURR. Mr. President, I ask unanimous consent to set aside the pending amendment and call up amendment No. 1519.

Mr. BURR. Mr. President, what is the pending amendment?

Mr. BURR. Mr. President, this is a very simple amendment. Under current law, our military men and women, about every 3 years, are repositioned in the country or out of the country. Their orders change. When they make that change, it is beneficial to them, and I believe to society, that their spouses and children go with them. Years ago, we made accommodations for those military personnel so they could pick a State of residency, even though they moved frequently. They could choose the State in which they grew up or the State they might retire in or a State they had visited during their assignments that they thought was the best or most advantageous place for them to claim residency. That provided that every State they went to, they didn't have to change their driver's license or voter registration or basically change everything in their lives. Now with the size of our military and the constant deployments we are in--this continuation of every 3 years, getting reassigned to a different post--what we realized from a quality-of-life standpoint was that we forgot about the spouses as it relates to the accommodations of a new surrounding. When we think about it, spouses who leave and go with the servicemember, they go into a community unemployed. They have to look for a job. They have to go to the DMV, the department of motor vehicles, and get a driver's license and reregister to vote. I might also say their husband or wife could claim residency somewhere, and they may not be on the title of the house they own or the property they own. The fact that the spouse cannot claim a State of residency consistent with the servicemember means they are at a tremendous disadvantage from the standpoint of what they own. It is easier to put it in the servicemember's name because they are protected regardless of where their orders send them. Very simply, this amendment extends the same privilege to a spouse that it does to a servicemember, so they can claim that State of residency, keep that one constant driver's license, and they can pay joint taxes in a State versus being forced to file separate taxes where there may be tax implications so that those military families pay more taxes than if they could file jointly. They still have the challenge of walking into a community unemployed, and they might leave a business behind because they believe the fabric of their family is that important. That is what we ask all of our military families to deal with. This is a simple way to make life a little easier on the spouses of our servicemembers and to make sure they don't have to change everything in their lives just because their spouse has been reassigned but only certain things that they will have to deal with. I remind my colleagues there is a stand-alone bill, S. 475. It had a hearing in the Veterans' Affairs Committee. It was passed unanimously out of the Veterans' Affairs Committee. It is identical to my amendment today. I urge my colleagues to support this amendment. With the Chair's agreement, I ask for a voice vote.

Mr. BURR. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. BURR. Mr. President, I call up amendment No. 1554, the Military Spouses Residency Relief Act.

Mr. BURR. Mr. President, I ask unanimous consent to set aside the pending amendment.

Mr. BURR. What is the pending amendment?

Mr. BURR

Mr. BURR. Madam President, one of the privileges of being a Senator is that we have the opportunity to meet extraordinary people every day. Whether you are the Senator from Illinois or the Senator from Nebraska, extraordinary people walk through your door every day of the week. But sometimes we get to meet amazing individuals whom we can honestly call heroes, who lay their lives on the line for their country and sacrifice themselves for our freedom. MSG Brendan O'Connor, a medic in the 7th Special Forces Group, is one of those very special people. In June of 2006, Master Sergeant O'Connor was deployed to Afghanistan in support of Operation Enduring Freedom. His group was stationed near Kandahar and charged with a variety of things, including security, training of the Afghan Army, and counterterrorism operations against a ruthless enemy. We have all heard news reports and heard of suicide bombers driving cars loaded with explosives into markets and crowded areas killing innocent men, women, and children. We have all heard accounts of suicide bombers strapping explosives to their waists and walking through a market, intentionally killing individuals. All of these individuals have been branded as religious zealots willing to die for their cause. However, that is not always the case. Oftentimes, these Taliban warlords recruit suicide bombers in other ways. They go into small villages and they hold whole families hostage. They instruct the young men in the family that if they do not carry out a suicide mission, they are going to kill the rest of the family, or if they do, they will let them live. Brendan's team was tracking one of these Taliban warlords, one of these thugs, outside of Kandahar, who was notorious for this type of ``recruitment.'' They tracked the terrorist to a small farming village surrounded by vineyards and orchards. Once in the area, Brendan's team set up a perimeter and defensive position to root out these warlords. They arrived late one evening and, working under the cloak of darkness, proceeded to sweep the village, hoping to surprise the local Taliban leader. However, their arrival was tipped off to the Taliban, and they had fled just minutes before U.S. soldiers arrived. Having found evidence of the Taliban's existence, the soldiers knew it was only a matter of time before they engaged the enemy. That first skirmish started the next day at dusk. Brendan's team, about 70 soldiers comprised of 8 U.S. special ops and 60 Afghan soldiers, took some small arms and rocket propelled grenade fire, but it didn't last long. The Taliban attacked the U.S.-led forces several more times over the next day and night but never amounting to much. U.S.-led forces didn't even sustain a single injury during those firefights. After having arrived on Wednesday evening and sporadically fighting the Taliban for 2 days, Brendan's team decided it was time to take the fight to the enemy. On that Saturday, MSG Tom Maholluck led a small recon group to a Taliban stronghold, which was just outside the village in a cluster of farm buildings. The team was comprised of four special forces operators and a dozen Afghan Army. Sergeant Maholluck was able to get in close enough to the compound without being detected. Once he assessed the situation, Sergeant Maholluck thought he could take the compound with a simple recon team. He ordered two of his soldiers--SSG Matt Binnie and SSG Joe Feurst--to take a fire suppression position and cover Sergeant Maholluck and the remaining Afghan Army contingency while they stormed the compound. When the U.S.-led recon team launched its first attack on the Taliban compound, they were quickly greeted with heavy machine gunfire. The first fire expression team returned fire; however, the machine gun nest had a tactical advantage over the fire team--they had the higher ground. Matt was struck first by a bullet that grazed his neck and stunned him for a moment. Matt regained his senses, and he and Joe returned fire, as much as they could, but the Taliban had them pinned down. Then an RPG round came and struck Staff Sergeant Feurst directly in the leg. It didn't explode, thankfully, but badly wounded SSG Joe Feurst. As Staff Sergeant Binnie was tending to Joe's leg, he was shot through the shoulder. The only thing left of the fire suppression team was a young Afghan interpreter who had stayed with them. Master Sergeant Maholluck was cut off from Staff Sergeant Binnie and Staff Sergeant Feurst, so he radioed for help. Back at the main perimeter, Brendan O'Connor got the call and put a team together to go get his wounded soldiers. When Brendan's team got to the area, the Taliban had taken positions along the route to the wounded soldiers, leaving Brendan only one path--an exposed field. Brendan instructed his team to take up positions to support the wounded and started on his mission to save the lives of these soldiers. At first, Brendan started crawling through an open field with his gear on. He quickly realized this wasn't going to work. So under a hail of small arms, RPG, and machine gun fire, Brendan removed all his armor and crawled through an open field to get to the two wounded. Brendan couldn't locate the two soldiers by sight, only by calling out. And as he heard them, he would get closer and closer. When he arrived at the two wounded, he had to make a quick decision about Joe's injuries, which were life threatening. Brendan quickly got Staff Sergeant Binnie taken care of and instructed him to crawl through a culvert to get to safety. Staff Sergeant Feurst wasn't so easy. He was unconscious and unable to move. Brendan pulled him down as far as he could into the culvert. He started to drag him, but he realized he couldn't drag him the entire way. As if the actions of Brendan and his team weren't heroic enough at this point, the next part of this account will send chills down your spine. At this time during the fight, it was estimated that nearly 300 Taliban fighters had engaged the approximately 15-member U.S. force. I say approximately because several Afghan Army members who originally accompanied Brendan's team had fled by this point. As Brendan's natural cover was coming to an end, he pulled Joe on to his shoulder, and he ran across an area while 300 Taliban fighters were shooting at him. God was watching Brendan that day. God saw one man risk his life to save another, and he saw fit to keep Brendan from harm as he carried a wounded U.S. soldier to safety. Unfortunately, Joe Feurst died soon after Brendan got him back due to massive blood loss. SSG Matt Binnie survived because of Brendan's leadership and courage under fire. The battle that had gone on for nearly 3 days was coming to an end at this point. U.S. forces had air support, which escorted them out of the area. All told, the U.S.-led force killed 125 Taliban fighters and only lost 2 of their own, with 1 wounded. They weren't able to capture or kill the warlord that time; however, due to the losses to the Taliban that day in that strike, U.S. forces got him several weeks later. For their heroics in combat, MSG Tom Maholluck and SSG Matt Binnie were awarded the Silver Star. SSG Joe Feurst was awarded the Bronze Star. Brendan O'Connor was awarded the Distinguished Service Cross for his valor. It was the first time a member of the 7th Special Forces Group had been awarded the medal since 1964. It is an honor to have Brendan and his family in Washington today. He is joined by his beautiful wife Meg and their children, Ryan, Colin, Darby, and Dillon. It is this type of story that we rarely hear about on the nightly news, but this story was so amazing that ``60 Minutes'' felt compelled to do a piece on it after the soldiers arrived back home. MSG Brendan O'Connor is a person held in the highest regard by other warriors who have proudly served this country. He is a soldier who truly understands the price of freedom. The Senate salutes MSG Brendan O'Connor today. I thank the Chair, and I yield the floor.

Mr. BURR

Mr. BURR. Madam President, the Senator is correct. I believe the Senator from Nebraska, as well. I ask unanimous consent to be recognized after the Senator from Nebraska, it is my understanding, for up to 10 minutes as in morning business.

Mr. BURR

Mr. BURR. Mr. President, I came to the floor last week for north of 5 hours and spoke about the bill that will be disposed of as this week goes on and, specifically, on an amendment that, though nongermane postcloture, the majority leader has agreed to hold a vote on. To me, this will be one of the most important votes Members in this body cast this year. Again, I believe this is one of the most important votes Members in the Senate will cast this year. Let me try to say why. This is a debate about the regulation of tobacco and, to start with, Members need to be reminded that today this is not an industry without regulation. This is the current charted Federal regulation of the tobacco industry before we do anything. I point out that included in that regulatory structure is the Department of Transportation, Department of Treasury, Department of Commerce, Department of Justice, Office of the President, Department of Health and Human Services, Department of Education, Department of Labor, General Services Administration, Department of Veterans Affairs, Federal Trade Commission, Department of Agriculture, Environmental Protection Agency, U.S. Postal Service, and Department of Defense. One, no Member can come to the floor and claim this is not a regulated product. It is the most regulated product sold in America today. I think there is consensus, and I agree, that we can do better than this maze of regulatory oversight in jurisdiction that is currently structured within the Federal Government, because it has been cobbled together as the Federal Government has grown, as new areas saw they had a piece of this pie, and they wanted some jurisdiction. We are throwing this regulatory structure away, and the proposal in the base bill, H.R. 1256, is to centralize this regulation of tobacco within the FDA. For those who aren't familiar with the FDA, let me say the Food and Drug Administration regulates 25 cents of every dollar of the U.S. economy--25 percent of all of the products sold in the United States are regulated by this one agency. FDA's core mission is this: Responsible for protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs, biologic products, medical devices, our Nation's food supply, cosmetics, and products that emit radiation. Nowhere in there does it say tobacco, nor has it ever. A layperson would look at this and say if there is an agency whose responsibility it is to approve safety and effectiveness, for God's sake, you could not give them tobacco because they could never prove it was safe. It kills, and there is no dispute about that. We are trying to take a round peg and put it in a square hole. We are trying to find an agency that we think has punitive steps that they can take, but we are actually going much farther than that. You see, not only is there experience or expertise at the FDA to regulate tobacco, they are not. We are going to ask the FDA to surge, with their resources, their personnel, expertise, away from things such as lifesaving drugs, effective medical devices, and a responsibility to food safety at a time Americans have been killed because this agency couldn't effectively do their job. We are going to ask them to surge to handle a new product they have never, ever regulated. As a matter of fact, the last FDA Commissioner, von Eschenbach, said this: The provisions in this bill-- I might say this was slightly over 2 years ago. As I have pointed out and talked about last week for over 5 hours on H.R. 1256, the authors of the bill didn't even change the dates in the bill from the bill written 2 years ago. As a matter of fact, the section by section is the same bill written 10 years ago. So I think it is appropriate, if they are going to use an effective date of February 2007, that I use the comments of the FDA Commissioner at the time, who said: The provisions in this bill would require substantial resources, and FDA may not be in a position to meet all of the activities within the proposed user levels. . . . as a consequence of this, FDA may have to divert funds from other programs, such as addressing the safety of drugs and food, to begin implementing this program. This is not Richard Burr, this is the former Commissioner of the FDA saying we may have to divert funds from other programs, such as safety of drugs and food. If the American people are given this choice, they would say uphold the gold standard of the FDA. Let me go to bed at night as I take that medication my doctor prescribed and the pharmacist filled, and let me feel confident that the most qualified reviewer looked at that application, at the clinical trial date, and made a determination that this drug was safe and effective for me. Make sure when I go to the grocery store and buy food in a global marketplace, where the melons might have come from Chile or the spinach from Mexico, that they have the best and brightest addressing food safety. They have already flunked that several times in the last 3 years, and we have all dealt with the consequences of it. But think about what we are getting ready to do. We are getting ready to make it worse. We are getting ready to take an agency that has a seal of approval, a gold standard, and we are getting ready to say we want you to maintain that gold standard on drugs, and food, and biologics, and medical devices, but we understand you cannot hold tobacco to the same threshold. So we want you to ignore the fact that tobacco kills, and we want you to regulate it as we prescribe it in legislation. How does H.R. 1256 prescribe this in regulation? We will turn to this, which is my continuum of risk chart. It basically starts to my right, and your left, Mr. President. It has unfiltered cigarettes. You remember those. They had a risk of 100 percent. If you smoked them, there was a 100-percent likelihood that you were going to have a health problem from smoking. Then the industry came up with filtered cigarettes, and they reduced the risk by 10 percent, from 100 percent to 90 percent. But when one is looking for a way to play this, a 90-percent risk is not a good one. What H.R. 1256 says is: OK, we realize FDA is not the right agency, but we are going to place it there anyway, and we are going to tell the FDA: We want you to leave this alone; we don't want you to touch this 100-percent risk or 90-percent risk. We want to grandfather all the products that were made before February 2007. And, oh, by the way, that would include U.S. smokeless tobacco. The most risky we are grandfathering in and we say to the FDA: You can't change it. You basically can't regulate it. You can't regulate the 100 percent, you can't regulate the 90 percent, and you can't regulate this small but growing U.S. smokeless market that has a risk of 10 percent. One might look at the chart and say there are other things on there. There are electronic cigarettes, tobacco-heating cigarettes, Swedish smokeless snus. There are dissolvable and other products that have less risk. All those products in February 2007 were not in the marketplace. They are banned. They are eliminated. What are we asking the FDA to do? We are asking them to grandfather three categories of products and let all adults who choose to use a tobacco product choose from the most risky categories. What are we saying to the 40 million Americans who smoke today? If you are in this category of using cigarettes, we are not going to give you any options as to what you turn to as you realize that is not the best thing for your health. We are going to lock you in and hope it kills you fast so our health care cost goes down. Any claim--any claim--that H.R. 1256 reduces the cost of health care is only because we have grandfathered in smokers who will die sooner, not that we have allowed them a pathway through this bill to ever experience not only products that are currently on the marketplace that reduce the risk from 100 percent to as little as 1 percent, but we have completely eliminated any additional innovation in product in the future that would allow somebody to get from 100 percent to 1 percent and actually be a healthier American. I am not on the floor today suggesting that regulation is not in order. It is in order. At 4:20 p.m. today, Members of the Senate will have an opportunity to vote on a substitute amendment that has several changes from this current bill. One, it does not centralize the jurisdiction in the FDA. It creates, under the Secretary of Health and Human Services, a new agency called the Harm Reduction Center. Its sole job is to regulate tobacco. It regulates tobacco more specifically than does the FDA under H.R. 1256. But what it does allow is the development of new products that might encourage individuals to give up smoking and to turn to products that are less harmful. Here is a list of the organizations that support tobacco harm reduction: The American Association of Public Health Physicians, 2008; the World Health Organization, 2008; the Institute of Medicine, 2001; the American Council on Science and Health, 2006; the New Zealand Health Technology Assessment, 2007; the Royal College of Physicians, 2002, 2007; Life Sciences Research Office, 2008; Strategic Dialogue on Tobacco Harm Reduction Group, 2009--this year. People around the world are talking about reduced harm, except in the Senate. As a matter of fact, we don't need to look far across the pond before we find Sweden. During the past 25 years, Swedish men have shown notable reductions in smoking-related diseases: a decline in lung cancer incidence rate to the lowest of any developed country; no detectible increase in oral cancer rate; improvement in cardiovascular health. Tobacco-related mortality in Sweden is among the lowest in the developed world. Why? Every Member of this Congress should ask why. Because the sponsors of this bill have said this is what we are trying to do in the United States. How did Sweden do it? It is very simple. Sweden did it by allowing these products to come to market. As a matter of fact, Swedish smokeless snus is currently on the market in the United States. I am not going to tell you the market share is big, but I can tell you this. The risk of death or disease is less than 2 percent. But under H.R. 1256, which the Senate may or may not adopt this afternoon, what we would do is we would eliminate Swedish snus, and we would lock smokers into the categories that are currently on the market, all because of an arbitrary February 2007 date because somebody was too lazy to change the bill. Think about that: that we would take something Sweden found over 25 years had been an incentive to get people off cigarettes and move toward other products, to the degree that, in Sweden, they had a decline in lung cancer, they had no detectible increase in oral cancer, and they had an improvement in cardiovascular health; that tobacco- related mortality in Sweden is among the lowest in the developed world. Why is that? Because the authors of H.R. 1256 suggest that new product innovation can happen, and I would tell you there are three thresholds one has to meet for new products to come on the market. I will not talk about the first two. I will focus on the third one. The third one is this: that to have a product approved to be placed on the market, a company has to prove that a nontobacco user is no more likely to use that new product if that product is available. Then it goes on to say, in great congressional form, that unless you have an application that has been approved, you cannot engage the public on a product that has not been improved. How does one do a clinical study that proves to the FDA that no American is more likely to use tobacco on a product that wasn't in the marketplace if, in fact, you can't talk to them about the product until it is approved? It is a Catch-22. The authors of this bill knew exactly what they were doing. Let me say it again. The authors of this bill knew exactly what they were doing. What has changed over the weekend since I was out here for 5 hours- plus last week? Public health experts around the country are beginning to read the bill and they are beginning to go: Oh, my gosh. Do not pass this. This is a huge mistake. As a matter of fact, I will get into it in a little while. I have plenty of time that I am going to spend on it. Understand there are only three reasons we would consider new additional regulations: to reduce the rate of disease and death and to reduce the prevalence of youth access to tobacco products and specifically smoking. I know the Presiding Officer heard me say this last week. This is my chart of 50 States. In 1998, the tobacco industry came to a settlement with States called the Master Settlement Agreement, MSA. In that agreement, they committed $280 billion to defray the cost of health care for the States--specifically, their Medicaid costs--and also provided money to make sure they could have cessation programs to get people to quit smoking and to make sure youth access, youth prevalence went down. These are the CDC levels for last year, and I might say the CDC makes a recommendation to every State at the beginning of the year as to how much they should spend on programs that encourage youth not to smoke. I am just going to pull randomly a few States. Connecticut: Of the CDC recommendation, Connecticut spent 18.9 percent of what the CDC recommended; 21 percent of the youth in Connecticut have a prevalence of smoking; 23.2 percent of the youth in Connecticut have a prevalence of marijuana usage. The Presiding Officer's own State, Illinois: Of the CDC recommendation of what Illinois should spend on youth prevention, Illinois spends 6.1 percent; 19.9 percent of the youth have a prevalence to smoke. They are at 23.3 percent who have a prevalence of marijuana use. In Missouri, of the CDC recommendation on how much should be spent on the prevalence of youth smoking, Missouri spent 3.7 percent; 23 percent of the youth have a prevalence of smoking; 19 percent a prevalence of marijuana use. I can see that the Presiding Officer gets where I am going. We have constantly, since 1998, with the money provided by the tobacco industry to the States, chosen to build sidewalks over promoting programs to reduce youth prevalence of smoking. Now the authors of this bill would have us suggest that by allowing the FDA to have regulation of tobacco, the prevalence of youth smoking is going to go down because now we have one Federal agency that will have total jurisdiction over this product. Let me say this: If that were the case, the prevalence of marijuana usage by youth would be zero because it is illegal. There is no age limit. As a matter of fact, there is no agency need for jurisdiction because nobody in America--adult or youth--is supposed to use it. It is a myth for us to believe the authors of this bill that by simply dumping this in the FDA, somehow youth prevalence of smoking goes down. It is a joke. It is a joke, and the public health community has now recognized this. In 1975, Congress commissioned the University of Michigan to track youth smoking rates. At that time, youth smoking was at an alltime high. However, those rates started coming down and leveled off around 30 percent all the way up to 1993. For some unknown reason at that time, youth smoking started to rise and peaked at an alltime high in 1997. In 1998, 12th graders who said they tried a cigarette in the last 30 days was approximately 36 percent, according to the University of Michigan. Congress didn't have a good sense of why this was happening. Opponents of the tobacco industry started blaming all this on the alleged manipulation of young people by tobacco manufacturers through sophisticated marketing and advertising. The tobacco industry has a checkered past, I will be the first to admit that, when it comes to advertising in the market. But what I am suggesting is, it may not have been all due to tobacco marketing. There was another trend occurring during the 1993 to 1998 period that virtually mirrored that of youth smoking. It was the increase in illicit drugs in the United States. Let me say that again. What mirrored the trend from 1993 to 1998 of the increase in youth smoking was the increase of use of illicit drugs by teenagers. Something much broader was happening among our country's young people. The Senate's answer to the smoking rate increase was to pass this initiative, to give FDA jurisdiction. Senator Kennedy made the following remarks during the 1998 Senate floor debate to emphasize the need to protect kids. Let me quote him: FDA Commissioner David Kessler has called smoking a ``pediatric disease with its onset in adolescents.'' In fact, studies show that over 90 percent of the current adult smokers began to smoke before they reached the age of 18. It makes sense for Congress to do what we can to discourage young Americans from starting to smoke during these critical years. . . . Youth smoking in America has reached epidemic proportions. According to a report issued last month by the Centers from Disease Control and Prevention, smoking rates among high school students soared by nearly a third between 1991 and 1997. Among African-Americans, the rates have soared by 80 percent. More than 36 percent of high school students smoke, a 1991 year high. . . . With youth smoking at crisis levels and still increasing, we cannot rely on halfway measures. Congress must use the strongest legislative tools available to reduce youth smoking as rapidly as possible. Well, the Senate told the American public that the passage of a massive FDA tobacco regulation back in 1998 contained the strongest legislative tools available to address youth smoking issues. By the way, they have decreased since 1998--youth smoking has decreased. As a matter of fact, overall smoking has decreased. I don't want anybody to think there is no light at the end of the tunnel. As a matter of fact, what this shows is a comparison--a study done by the Centers for Disease Control and Prevention and then a Congressional Budget Office estimate after reviewing the Kennedy bill, or Waxman bill, H.R. 1256. What the CDC said was that if we do nothing, we reduce smoking to 15.97 percent by 2016, and the Congressional Budget Office, under H.R. 1256, said that if we pass the Kennedy bill, the rate would be 17.80 percent. As a matter of fact, I miscalculated when I put the chart together, and it is actually 2 percent higher, meaning we do 4 percent better if we do nothing. You see, my point is this, and it is exactly what I said at the beginning: The authors of this bill said its purpose is to reduce the risk of death and disease and to reduce youth smoking. I would tell you that a caveat to that should be that we should reduce smoking. Clearly, the Centers for Disease Control and Prevention says that if you do nothing, it goes to this point, and the Congressional Budget Office, after looking at the bill, suggests it is 2 percent or 4 percent higher if, in fact, we pass the bill. Why is that? How could it possibly be higher if you pass legislation that is supposed to fix it? Well, it is for this reason: It is because of what H.R. 1256 does. It is not a public health bill. It is a bill that locks in the most risky products and grandfathers them to the Food and Drug Administration and allows no pathway for reduced-harm products to come to market. It actually takes some reduced-harm products that are currently on the market, that haven't been sold since February 2007, and says, therefore, they are gone. There is no ability for the FDA to look at this product and say: My gosh, in the name of public health, let's keep this product on the market, because the Senate is legislatively telling the FDA what to do. Why does it matter what agency we put this in? If Congress believes they can fix it, then why haven't they fixed it up until now? If writing a bill that legislates how to fix it would work, why haven't we done it? Well, I would contend that all I have to do is go to this chart of 50 States, and for the majority of the States the prevalence of marijuana usage is higher than the prevalence of youth smoking, which tells you there is no regulatory body that can eliminate the usage of an illegal product by those who choose to use it, unless-- unless--it is through education. There is no education in H.R. 1256. Let me say it again: There is no education in H.R. 1256. If the goal is to reduce the risk of death and disease and education is the only way to accomplish that, if the goal is to reduce youth prevalence of smoking and the only tool to accomplish that is education, then I ask the sponsors to come to the floor and show me where the education is in FDA regulations. I am on day 5 now--maybe day 6 if you count that I was here for a short period of time last Monday, but I didn't make it yesterday, Monday--day 6, and I have yet to have anybody come to the floor and ask a question, refute anything I have said or question the facts I have produced. Why? Because I am using the same agencies most Members come to the floor and reference: the Centers for Disease Control and Prevention and the Congressional Budget Office. It is hard to say that they are wrong, that they are not reputable entities within the Federal Government, and then turn around next week and bring your own statistics using the same entities we use as a gauge. One can question whether the Royal College of Physicians came to the right conclusion when they said: In Sweden, the available low-harm smokeless products have been shown to be an acceptable substitute for cigarettes to many smokers, while ``gateway'' progression from smokeless to smoking is relatively uncommon. Let me say that again: ``. . . while gateway progression from smokeless to smoking is relatively uncommon.'' Some authors of H.R. 1256 have come to the floor and said: Well, my gosh, if we let reduced-harm products come to the marketplace, this is going to create a gateway to youth usage of tobacco products that will eventually turn them into smokers. Read the substitute bill. The substitute bill requires the Reduced Harm Center to actually list for the American public the most risky tobacco products and the least risky. The bill that consolidates all this jurisdiction for tobacco within the Food and Drug Administration doesn't even require the Food and Drug Administration to rank the most risky products. Why? Because those are the ones we have grandfathered. We have said they can't touch them. Compassion would tell you that if you want people to switch from smoking and give it up, you have to give them a tool to get there. But what we have said is that the future will consist of no new tools except those manufacturers that were on the market before February 2007--some magical date in history we will all look back on and probably find that to blame as to why this program doesn't work. In a little over an hour, we will have an opportunity to come to the floor and to vote on the substitute. Let me say to my colleagues, if you want a real public health bill, vote for the substitute. If you want to reduce the prevalence of youth smoking, vote for the substitute. If you want to reduce the rate of death and disease, vote for the substitute. Don't just listen to me, listen to public health experts and authors who now have written on this issue. This happens to be a book--and I am not sure how long ago it was published, although I am sure I can probably find that out--that I think I spent $50 today to get, either that or it is on loan. That seems like a lot of money, but the truth is, it is a book about how the Senate of the United States is getting shafted. It is a book about the collusion that happened behind closed doors between the authors of this bill and Philip Morris. It is written by an author named Patrick Basham. I want to read a few things he has printed in his book. Handing tobacco regulation over to the FDA, as Congress is poised to do, is an epic public health mistake. It is tantamount to giving the keys of the regulatory store to the Nation's largest cigarette manufacturer. It goes on: There are significant and numerous problems with the FDA regulating tobacco and virtually no benefits to public health. Let me say that again. There are significant and numerous problems with FDA regulating tobacco and virtually no benefits to public health. Do you get it? I mean, if you are going to bill it as a public health bill, for God's sake, put something in there that is to the benefit of the public health of this country. Mr. Basham goes on to say: Kennedy, Waxman, and the public health establishment present their legislation as a masterful regulatory stroke that will end tobacco marketing, preventing kids from starting to smoke, make cigarettes less enjoyable to smoke, and reduce adult smoking. But FDA regulation of tobacco will do none of these things. This is not a fan of the tobacco industry. This is an author, an individual, who has been covered in numerous publications. He is an adjunct scholar with the Cato Center for Responsible Government. He is a lecturer at Johns Hopkins University. He has written a variety of policy issues, and his articles have appeared in the New York Times, the Washington Post, USA Today, the New York Post, and the New York Daily News, just to name a few. His book is titled ``Butt Out! How Philip Morris Burned Ted Kennedy, the FDA & and the Anti-Tobacco Movement.'' This is no fan of tobacco. This is a guy who is calling balls and strikes. He is one person who is so concerned about the public health in this country and making sure what we do accomplishes good public health policy that he is willing to be outspoken. He goes on in his book and says this: The process of validating new reduced-risk products appears to be designed to prevent such products from ever reaching the marketplace, thus giving smokers the stark, and for many the impossible, choice of ``quit smoking or die.'' You might want to remember that part. We can now call the continuum of risk ``quit or die.'' Rather than making smoking safer for those who continue to smoke, it will deny smokers access to new products that might literally save their lives. That is hardly a sterling prescription for good public health. If the objective is public health, H.R. 1256 falls way short. Even if the idea of FDA regulation were good in theory and practice, several things, including the FDA's competence in tobacco policy and science, its public image, its fit with the tobacco file, its available resources, and its overall current competence, argue strongly against giving it regulatory responsibility for our Nation's tobacco policy. This is a scholar, Mr. President. FDA regulation of tobacco need not be a public health tragedy, however. By bringing the crafting of tobacco policy out into the light of day, by taking it out of the hands of the special interests and, most importantly, by keeping it away from the FDA, there is every opportunity to begin to create a policy that not only serves the interest of nonsmokers and smokers, but a policy that might really work. To Senators of the U.S. Senate: If you want a policy that really works, do not adopt H.R. 1256. Consider strongly the merits of the substitute amendment, which does focus on the public health of this country. Mr. Basham is a professor who studies and writes on a variety of topics, and when he took an objective view of the situation, he saw H.R. 1256 for what it was. He saw it as misguided legislation. Our amendment--mine and Senator Hagan's--accomplishes exactly what Mr. Basham raises. Our amendment sets up a new agency under the auspices of HHS and a Secretary who will examine all tobacco products and set up a regulatory framework that will save lives. That is in the public health interest of America. We don't preclude new reduced-risk products from entering the marketplace. We do not preclude reduced risk products from coming into the marketplace; H.R. 1256 does. We mandate the Tobacco Harm Center post the relative risk of each tobacco product currently on the market. Wouldn't that be incredible if we had a ranking between cigarettes and all the other things? We wouldn't need that if H.R. 1256 passed because we would only have nonfiltered cigarettes, filtered cigarettes, and smokeless tobacco. I can tell you the ranking would be unfiltered cigarettes the worst, filtered cigarettes next to the worst, and smokeless third. Those are the choices that adults would have in this country, and for somebody who is addicted to smoking, if smokeless wasn't something that enticed them to quit smoking, they would be left out because the legislation does not create a pathway for new products. We also give current users the information they need to decide whether they want to migrate from a more harmful product, such as cigarettes, to less harmful products. I have heard my colleagues and many other advocacy groups boast how the underlying bill will give the FDA authority to remove toxins in cigarettes, boast how granting the FDA the ability to regulate advertising will encourage people to not use, and current smokers to quit. I agree, better warning labels will act as a deterrent to nonsmokers. But what about current smokers? Dr. Basham sites a very interesting study conducted in Canada and the United States by an independent organization. The study consisted of showing smokers packages of their current cigarettes with an increased warning label and graphic pictorials of cancer and other diseases. The study concluded that no statistically significant change in smoking behavior could be expected to be followed from the redesigned packages. If you have noticed, over this 45 minutes, so far, I have sort of knocked all the things out that the sponsors of this bill said it accomplished. It does not do any of them. It does do one thing: it grandfathers the most risky products and consolidates their regulation at the FDA. It does not reduce risk of death, disease, or youth prevalence of smoking. Since H.R. 1256 bans any reduced risk smokeless products from entering the marketplace, it locks current smokers only into cigarettes. However, our amendment does not lock them into just cigarettes. We provide this consumer with the ultimate amount of choice. The purpose of my amendment, as I said, is to reduce the risk of death and disease and to reduce youth prevalence of smoking. The regulated products under my amendment? All tobacco and nicotine products. There are no holes in the substitute. It covers the entire scope of tobacco products. New smoking provisions in H.R. 1256, ``change current tobacco advertising to black and white only and require graphic warning labels on packages of cigarettes.'' We require graphic warning labels on the package of cigarettes, and we eliminate print advertising. Somehow the authors of this bill would have us believe if we go from color to black and white advertising that people under 18 actually will not read it or can't read it. Maybe today's youth can only read in color. But they suggest theirs is a stronger regulatory bill. But the substitute eliminates print advertising. No longer will the Vogue magazine that a mom finds in the grocery store attractive, that might not be one of those publications that is considered a publication that youth would purchase, but a 14- year-old might go to her mother's Vogue magazine and flip open and see a tobacco ad by mistake--it can't happen under the substitute legislation. It will happen under H.R. 1256, but only in black and white. H.R. 1256 uses user fees to fund the FDA, about $700 million over 3 years. We asked the Secretary of Health and Human Services: How much do you need to stand up a complete new agency that is only focused on tobacco legislation? One hundred million dollars a year because these fees that we charge the tobacco companies are passed on to the consumers, the people least likely to fund it, the ones who are already funding the Children's Health Insurance Program, funding the majority of the State Medicaid programs. Let's give these folks a break. Let's not put this entire burden on their backs, especially if it is not going to do any good. It is not just Mr. Bashan. As a matter of fact, Brad Rodu wrote, March 26--Brad Rodu, the Endowed Chair of Tobacco Harm Reduction Research, School of Medicine, University of Louisville--I will read a couple of excerpts of what he wrote. According to the American Association of Public Health Physicians, the bill ``will do more harm than good in terms of the future tobacco-related illnesses and death.'' While the AAPHP favors ``effective regulation of the tobacco industry. . . . This bill does not meet this standard.'' The bill, introduced by Rep. Henry Waxman, is supported by medical groups that are engaged in a crusade against the tobacco industry. That's the problem: In a blind desire to kill tobacco manufacturers, the Waxman bill may end up hurting smokers. It goes on and on. Again, an endowed chair of a major academic institution says don't do this. How about Michael Siegel, Professor in the Social and Behavioral Sciences Department at--get this--Boston University School of Public Health, home of the authors of the bill. The Los Angeles Times, op-ed, June 3--not long ago. Let me read a couple of excerpts out of Mr. Siegel's op-ed. In the end, it ensures that federal regulation of tobacco products will remain more about politics than about science. H.R. 1256 gives the FDA the ability to lower nicotine levels in cigarettes. Since H.R. 1256 locks current users into cigarettes only by banning reduced risk products, H.R. 1256 ensures that 40 million Americans who currently smoke are doomed to death and disease associated with cigarette smoking. H.R. 1256 will cost lives, not save lives. This is a professor in the Boston University School of Public Health, talking about his Senator's bill. He goes on to say: Even worse, by giving a federal agency the appearance of regulatory authority over cigarettes without the real ability to regulate, the legislation would seemingly create a FDA seal of approval for cigarettes, giving the public a false sense of security about the increased safety of the product. In fact, the bill's crafters are apparently so worried about the harmful effects of such a public perception-- Get this-- that they have written a clause into the bill that prohibits the cigarette companies from even informing the public that cigarettes are regulated by the FDA or that the companies are in compliance with FDA regulations. The legislation forbids a company from even referring to the regulator. He goes on to say: This is clearly an unconstitutional provision, as it violates the free speech rights of the tobacco companies; nevertheless, it suggests that even the supporters of the legislation are aware that the bill creates a false perception of the increased safety of cigarette smoking. There is a charge I have not made. The bill is actually unconstitutional. When we recognize things as unconstitutional, I know it is the inclination of some Members of the Senate to wait and have it passed and somebody refer it to the Supreme Court so the Supreme Court can tell us it is unconstitutional. When scholars tell us it is unconstitutional, I believe our responsibility is then: don't pass it, don't do it. Let me conclude with Michael Siegel, professor in the School of Public Health, Boston University. During the previous administration, the FDA was accused of making decisions based on politics, not health. If the Senate passes the FDA tobacco legislation, it will be institutionalizing, rather than ending, the triumph of politics over science in federal policymaking. This is not the way to restore science to its rightful place. I am not saying it. It is a professor from the School of Public Health at Boston University. What is this bill about? Its author said reducing the rate of death and disease and prevalence of youth smoking. Michael Siegel's assessment: It is about politics. Patrick Bashan's conclusion in ``Butt Out,'' the book: It is about politics. As a matter of fact, it says on the back of the book: Philip Morris outwitted this coalition of useful idiots at every turn. The decision in front of Members of the Senate is simple. Do you want to reduce the risk of death? Do you want to reduce the risk of disease? If you want to reduce the prevalence of youth smoking you only have one chance, and that is support the substitute amendment. If you want to do politics as usual, if you want to let politics trump science, if you want to lock in a category of products that have a high likelihood of risking the American people, if you want to ignore the research from around the world that suggests by allowing lower harm smokeless products on the marketplace it allows smokers to get off the tobacco products, support H.R. 1256. I believed 5 days ago when I came to the Senate floor that was all I needed to put up to win this debate. I actually believed that was all I needed to put up for the American people. I have learned over the past 5 days just how stubborn Members of the Senate are. I hope that now, after 6\1/2\ hours of coming to the Senate floor on this one bill, staff members through every office--Republican, Democrat, and Independent--have taken the opportunity to check the facts that I have presented, and they have found I am right; they have found a study did exist in Sweden. I didn't make it up; they have found that CDC did do a study--if we did nothing we would reduce smoking more than if we pass this bill; they have found that in Sweden, people did become healthier because of the decision to use smokeless products. I thought this was all it took for the American people to understand it; that you can't take an agency of the Federal Government that is ``responsible for protecting the public health by assuring the safety, efficacy and security of human and veterinary drugs, biologic products, medical devices, our Nation's food supply, cosmetics and products that emit radiation''--it is impossible to take an agency where that is their core mission and give them a product where you ask them to ignore the gold standard on everything else they regulate. I think the American people would say it seems reasonable to create a new entity to regulate tobacco, if for no other reason than--if you didn't believe any other science that I have shown and the data that has been proven-- if for no other reason than why would we jeopardize this gold standard? Why would we make one American at home wonder whether that pharmaceutical product they were taking was actually safe or effective? Why would we have them question for a minute whether that medical device was approved and reviewed by the most seasoned reviewer versus maybe somebody who was fresh on the job because that seasoned person went over to regulate tobacco products? Why would we put the American people in a more difficult situation today on their question of food safety with the incidents we have had of death in the United States of America because the Agency could not quite meet their mission statement? Why would we dump on them now? Why would we do this to the American people? It is beyond me. But when you turn to some of the folks who have written on this issue--whether it is Brad Rodu, whether it is Patrick Basham, whether it is Michael Siegel, in the public health department at Boston University--I guess the only answer is, it is politics over science, that for 10 years people have said we have to put this in the FDA, that Matt Meyers, head of Campaign for Tobacco- Free Kids, is the most powerful ``U.S. Senator'' because he is getting his wish, he is getting exactly what he has been trying to do for decades. He is not a science expert. If he was, he would be voting for the substitute, if he were here. He wrote the bill. I am surprised he did not catch the mistake of February 2007. Nobody caught that. But the truth is, the bill has not changed much in 10 years, though the world has changed a lot. The science has changed a lot. Health care has changed a lot. There is a real opportunity to do the right thing in the Senate. But Members will have to show a degree of independence and vote for the substitute and not wait for the base bill. I hope Members will heed the words of people who have no dog in this fight who have suggested, if we pass this bill--not the substitute, the base bill--we will have done a great disservice to the public health of America. More importantly, we will have done a disservice to those individuals to get locked into these categories, as shown on this chart, because their certain future is death and disease. They are counting on us. They are. They are counting on us to do the right thing. I can leave this debate tonight and say: I left nothing in the bag. I have tried everything to convince my colleagues not to make a huge mistake. I will sleep well tonight. If this substitute does not pass, if H.R. 1256 passes and becomes law, it is others who are going to have to live with the way they voted. When people die because of what they did, it is others who are going to have to live with it. There are going to be more articles. This is just the tip of the iceberg of health professionals, of public health individuals, people who detail in great quantity exactly what has been going on. As a matter of fact, as they say, the wool has been pulled over our eyes. Well, it has not. That is why we have a substitute amendment. That is why the majority leader allowed a nongermane amendment to come to the floor. Well, it might have had something to do with that he did not have the votes for cloture without allowing it to come to the floor, but I give him the benefit of the doubt that he understood this was an important debate to have, that this was worth extending the opportunity for people to vote up or down. I see my colleague is here to speak, and I am not going to prolong this debate. In less than an hour, Members will have an opportunity to come to the floor. Most Members will get probably 2 minutes equally divided; 60 seconds to hear what it has taken me 6 hours to say in this debate. Clearly, that is not much time. But now it is in their hands. It is a decision Members of the Senate will have to make about the future of the public health policy of this country. I urge my colleagues, on both sides of the aisle, to support the substitute amendment today at 4:20 and make sure the future of our country is one we will be proud of and not one we will find as an embarrassment. I yield the floor.

Mr. BURR

Mr. BURR. Mr. President, I ask unanimous consent to speak for up to an hour as in morning business.

Mr. BURR

Mr. BURR. Mr. President, I ask for the yeas and nays.

Mr. BURR

Mr. BURR. When I ended talking about the substitute, I held up this can of Camel Orbs and I told the Members of the Senate that this was a product that currently is rated at about a 1-percent risk, or an 89 percent reduction from typical nonfiltered cigarettes. It is an 89 percent reduction from nonfiltered cigarettes. I will hold one up. It is a dissolvable tobacco. You don't get lung cancer or COPD from it, and it doesn't cause heart disease. There is a 1-percent risk. But under H.R. 1256, this product is outlawed. Why? Because it wasn't sold before February 2007. Let me say to my colleagues, if the intent of passing Federal regulation of the tobacco industry--and I am supportive of it--is to reduce death and disease, why would you exclude a product that has a 1- percent risk but then grandfather in products with a 100-percent likelihood of killing you? Even if you are not debating whether it is in the FDA or in the harm reduction center, how in the world can a Member of the Senate say it is OK to eliminate the ability for an adult to choose to use this and to be locked into a certain death? We are supposed to pass policy that makes sense and that works for the American people, that actually reduces the risk of death, disease, and usage of tobacco. When you lock them into the highest risk and likelihood of death, you haven't fulfilled that. When you don't require States to use the money they were given for cessation programs, how can you expect that you are going to reduce youth usage? When you see that 48 States have a higher prevalence of marijuana use among youth than they do of tobacco, how can you conclude that by giving the FDA jurisdiction to regulate tobacco, somehow that means you are going to have a reduction in youth usage? It is just not going to happen. The American Association of Public Health Physicians states that this product, Orbs, is the most effective way to fight death and disease associated with current tobacco use. Again, the American Association of Public Health Physicians states that these are the best tools we have to get people to quit smoking. As a matter of fact, I am proud to say that yesterday the American Association of Public Health Physicians endorsed the substitute amendment and not the base bill because they recognize that the base bill does nothing but provide a pathway to certain disease or death. Just so I am clear, under the base bill, H.R. 1256, Marlboro is cemented on the retail shelves. Camel Orbs, which reduces death and disease associated with tobacco use, is banned, can't be sold; It wasn't on the market before January 2007, and Marlboros are on the shelf. Snus is banned. In the past 25 years, Swedish men showed a notable reduction in smoking-related disease, a decline in lung cancer incidence rates to the lowest of any developed nation, with no detectable increase in the oral cancer rate, improvement in cardiovascular health, and the tobacco-related mortality rate in Sweden is among the lowest in the developed world. But in our infinite wisdom in this austere body, we are getting ready to pass a bill that takes a product that Sweden used to get people off cigarettes, to reduce lung cancer, to bring down cardiovascular disease, to reduce mortality by tobacco products, and we are going to eliminate it and we are going to lock them into everything Sweden is trying to get rid of. Think about this before you do it, for God's sake. Once you pass this, it is too late. Mr. President, the current cessation programs don't work. I said earlier that those products have a 95-percent failure rate. Giving current smokers an opportunity to migrate to a less harmful product--it is a public health initiative, and not creating a pathway to reduce harmful products is not a public health bill. But those products are banned in H.R. 1256. Senator Hagan's and my amendment allows these products to be marketed and regulated correctly. Our amendment establishes a tobacco harm reduction center within the office of Health and Human Services. We provide the harm reduction center with the regulatory authority to better protect our children from tobacco use and significantly increase the public health benefits of tobacco regulation. We require tobacco manufacturers to publish ingredients of products. We require the harm reduction center to rank tobacco products according to their risk of death and disease associated with each type of tobacco product in order to inform the American public more fully about the risk and harm of tobacco products. We ban candy and fruit descriptors of cigarettes. We ban the use of the terms ``light'' and ``low tar.'' We give the Harm Reduction Center the authority to review smoking articles and adjust accordingly to what is in the best interest of public health. What we don't do is give an already overburdened agency the responsibility to regulate tobacco. We have a change in administrations. As supportive as I am of the new Commissioner of the FDA, Margaret Hamburg--she will do a wonderful job--let me turn to the former Commissioner of the FDA. Two years ago, Andy von Eschenbach gave his opinion on the FDA regulation of tobacco. You might say: Gosh, this was 2 years ago. I think I already made a credible case that most of what is in this bill was written 10 years ago. Even some of the deadlines that are in the bill have not been changed since the bill was updated 2 years ago. So I think it is very credible to use the comments of the former FDA Commissioner 2 years ago: The provisions in this bill would require substantial resources, and FDA may not be in a position to meet all of the activities within the proposed user fee levels . . . As a consequence of this, FDA may have to divert funds from its other programs, such as addressing the safety of drugs and food, to begin implementing this program. All of a sudden, we are right back where I started 3 days ago. Why in the world would we jeopardize the gold standard of the Food and Drug Administration, the agency that provides the confidence to every consumer in the country that when they get home at night, after having a prescription filled, they don't have to worry about whether it is safe or effective; that if they go to a doctor or hospital and they use a device on them, it wasn't something crafted in the back room and nobody reviewed that it was safe or effective; that it had the gold standard, the seal of approval of the Food and Drug Administration; that as biologics were created that did not exist 10 years ago, that we could feel certain that the FDA looked at this new product and approved it for use in humans; that when we went to buy food, our food would be safe. Do we want to jeopardize the FDA having to divert funds from food safety right now when we have had Americans who have been killed? Do we want a reviewer at FDA, whose gold standard is to prove safety and efficacy on all the products they regulate, except for the tobacco, to lower their guard and let something through that did not meet the threshold of safe and effective? I am not sure that is in the best interest of America. I am not sure it is in the best interest of the American people. My colleague from Connecticut came to the floor and said the Food and Drug Administration is the only agency that has the experience, the expertise, and the resources. The Commissioner of the Food and Drug Administration said: I don't have the resources, and if you give this to me, I might have to divert funds from other programs. As a matter of fact, they would have to divert people from reviewing the applications for new drugs, new biologics. It could be that somebody who is waiting for a new therapy dies before the therapy is available because we had to divert funds or people to take care of regulating a product that the FDA has never regulated and for which Commissioners of the FDA told us they did not have the funds. I am not sure how clear we need this. I said when I started on Monday this was an uphill climb, the deck was stacked against me. I understood the threshold was come to the Senate floor and to spend as much time as it took to convince my colleagues--Republicans and Democrats and Independents--that this was not a bill where one party trumped the other. Senator Hagan is a Democrat; I am a Republican. We have come to the floor passionately with our substitute amendment because we think it trumps H.R. 1256 from a policy standpoint. The American people expect us to pass the right policy, not any policy. If the FDA is not the appropriate place to put it, the American people expect us to find something else that meets the threshold of the right regulation but does not encumber the gold standard of an agency on which we are so reliant. I am hopeful we are going to have a vote this afternoon on the substitute. It will be next week before the base bill is voted on. I say to my colleagues, they are only going to have one opportunity to change this bill. That one opportunity is to vote for the substitute amendment. If they vote for the substitute amendment, they are going to vote for a bill that actually reduces the risk of death and disease for adults who choose to use tobacco products. If they vote for the substitute, they are actually going to vote for a bill that actually reduces youth usage in a real way. If they pass on supporting the substitute--and it will be a close vote--if they pass on supporting it, they are going to have to live with what they do to the FDA. They are going to have to live with the consequences. When I came to the Congress, the House of Representatives, in 1995, I was given the task of modernizing the Food and Drug Administration. We opened the Food and Drug Administration in its entirety. It took 2\1/2\ years to produce a bill. It was a bipartisan bill. As a matter of fact, I think in the Senate and in the House it passed by voice vote. Why did it take 2\1/2\ years, two Congresses? It is because we understood, at that time, the delicacy of what we were attempting to do. We were attempting to modernize the Agency and to maintain the gold standard. At the end of the day, no Member of the House or the Senate offered an amendment to give the FDA jurisdiction over tobacco. In 1998, that bill became law. Why didn't they? It is because every Member knew it was not worth the risk of giving them the responsibilities of tobacco when we had spent 2\1/2\ years trying to protect the gold standard. We are not that forgetful. Don't forget our commitment to make sure the gold standard of the FDA is intact. Don't jeopardize it by giving them tobacco. Don't let our kids be sold short by producing a bill that does not do the education they need so they never pick up a tobacco product. Don't lock the adults who choose to use risky products to risky products forever. Give them an opportunity to have less harmful products. That can only be done one way. That can only be done if Members of the Senate vote to support the Hagan-Burr substitute. It does keep kids from smoking. It does preserve the core mission of the FDA. It does reduce the risk of death and disease. I yield the floor.

Mr. BURR. Mr. President, when I yielded the floor to allow Senator Brown to speak, I was in the process of describing the substitute amendment to the base bill, H.R. 1256. Before I go back to that, let me share with my colleagues the response to a letter from the Campaign For Tobacco-Free Kids. They assessed the substitute bill and they provided in a letter to the committee why they found the substitute to be wrong. I will use that word. Let me take on some of the things they raised in that letter. One, they said that the Burr-Hagan bill would create a new bureaucracy that lacks the experience, expertise, and resources to effectively regulate tobacco products. I think I made it abundantly clear earlier today that under the current regulatory framework for tobacco, every Federal agency in the United States has jurisdiction in it, except for the Food and Drug Administration. So to suggest that the Food and Drug Administration has the experience or the expertise or the resources to effectively regulate this would be disingenuous. They have no experience, because they haven't been involved in regulation. They do have expertise, but expertise to prove safety and efficacy of products, not to come to the conclusion that a product is unsafe and kills. Yet they are not going to do anything to restrict its access or provide resources to effectively regulate tobacco products. Incorporated in this base bill H.R. 1256 is, in fact, a surcharge on the tobacco industry of $700 million over the first 3 years to fund--to provide the resources--for the FDA to regulate the industry. And it doesn't stop there, because they can't hire the folks, they can't set up the regulation until they have the ability to do the surcharge it requires, in putting it in the FDA, that you come up with $200 million to fund the initial effort to set up the infrastructure to regulate this product. So, in fact, there were no resources. Within H.R. 1256, it creates the resources to create the framework, to create the personnel, to regulate a product they have never regulated before. I remind my colleagues that in the substitute amendment, we set up a new Harm Reduction Center under the guidelines of the Secretary of Health and Human Services, within Health and Human Services, the same place that the FDA is. When we asked the Secretary of HHS how much does it take to fund that, they gave us a number of $100 million a year; $700 million for the baseline, H.R. 1256; $100 million for this new Center of Harm Reduction, overseen by the same Secretary of Health and Human Services. Granted, I will be the first to say that if we are creating a new agency, the agency for harm reduction, it does not have the experience, the expertise, or the resources yet, but it can search within the global marketplace to find the individuals, and the Secretary of HHS has already said $100 million will permit us to do that function in a harm reduction center. So the first complaint, hopefully, I have disposed of. The second complaint from the Campaign For Tobacco-Free Kids as to why they would not support the substitute amendment: The Burr-Hagan bill does not give the FDA any meaningful authority to require changes in tobacco products. Well, I do hope somebody from Campaign For Tobacco-Free Kids is watching, because what the base bill, H.R. 1256, does is it locks in these products, nonfiltered and filtered cigarettes, and legislatively says to the FDA: You can't do anything with those products. They are grandfathered. As you heard me say, H.R. 1256 does not allow these reduced-risk products to come to market. So the tobacco industry, based upon how the legislation is written, would basically limit tobacco uses to these two categories, the 100 percent risky and the 95 percent risky. I misspoke. Let me correct it, because within H.R. 1256 it does state that any product that was sold prior to February 2007 could, in fact, be sold. Some, not all, smokeless products fall into that category of having been sold prior to February of 2007. One has to ask: Why February of 2007? Why is that magic? It is very simple. That is the last time they updated this bill. I am sure they updated before the markup in 2009, but they weren't even careful enough to change the effective date that cut off when a product could be sold. There can't be any other reason, because there is nothing magical to February of 2007, except that U.S. smokeless products were included, and if you include U.S. smokeless products and filtered and nonfiltered cigarettes, you might have one manufacturer that then controls about 70 percent of the market. And because you have grandfathered it all in and you have forbidden FDA from ever changing it, you have basically given an unbelievable market share to one company, and you have not allowed any other company in the world to participate because if they weren't sold before February of 2007, they can't be sold in the future. Because, as I discussed earlier, to bring a new product to the marketplace, you have to make the claim that no nontobacco user would use the product. Yet how can you make that claim if the same provision disallows you from talking to a non-tobacco user about whether they would use the product? It is a catch-22. Yes, we created a pathway, but we also designed it in a way that you couldn't meet the threshold needed to have an application approved. It is very simple. Two was that the Burr-Hagan bill doesn't give the FDA meaningful authority to require changes in tobacco products. They are 100 percent correct. Nor does H.R. 1256. As a matter of fact, not only does it not allow for changes, it legislates there cannot be changes to products sold before 2007. If the Campaign for Tobacco-Free Kids is trying to reduce the risk of death and disease and usage, it has supported the wrong bill. Third, the Burr-Hagan bill will harm public health because it perpetuates the consumers' misconception that they can reduce their risk of disease by switching to so-called low-tar cigarettes. Our bill goes further than the Kennedy-Waxman legislation by banning the use of terms such as ``light,'' ``ultra-light,'' ``medium,'' and bans the use of candy, fruit, or alcohol descriptors on cigarettes even if not characterized in the legislation. In addition, the risk reduction center is required to establish a relative risk ranking for tobacco and nicotine products annually and disseminate that information to the public. This preempts any unsubstantiated lower or reduced-risk consumer communications by a tobacco manufacturer. In other words, under H.R. 1256, the FDA does not have to inform the public about the relative risk of the products they regulate. So they are not going to share with the people that if you smoke filtered cigarettes, it is a 100-percent risk, and unfiltered is a 90-percent risk. In the substitute that is being offered, we require the harm reduction center to annually print a list of what the risks of the products are that are tobacco related and that they regulate. The fourth complaint by the Campaign for Tobacco-Free Kids is that the Burr-Hagan bill doesn't strengthen warning labels in a meaningful way. Well, actually, our bill incorporates the same warning levels for cigarettes contained in the Kennedy-Waxman legislation and requires they be placed on the bottom 30 percent of a cigarette pack, including Senator Enzi's graphic warning label language. Also, our amendment goes further than H.R. 1256 by requiring the disclosure of ingredients on the back facing of a tobacco product packaging. Let me state what the claim was: The Burr-Hagan bill doesn't strengthen warning labels. The only thing I can think is that the Campaign for Tobacco-Free Kids didn't read my bill or it doesn't know the difference between identical language in H.R. 1256 and the Burr- Hagan substitute because the wording is actually the same. In addition, we require that the ingredients in those products be listed on the pack, which I think is beneficial to consumer choice. Fifth, the Burr-Hagan bill doesn't adequately protect consumers from misleading health claims about tobacco products. Well, once again, our bill requires the same rigorous standards used in H.R. 1256 for reducing the risk of tobacco products. Furthermore, it requires the harm reduction center to establish and publish the relative risk of tobacco and nicotine products on an annual basis. Unlike Kennedy- Waxman, this legislation also requires disclosure on individual packs of all ingredients. The sixth complaint by the Campaign for Tobacco-Free Kids is that the Burr-Hagan bill gives the tobacco industry license to create ways to market to youth. We have covered this. Our bill is much more comprehensive. It eliminates print advertising. There are marketing prohibitions and restrictions over and above what H.R. 1256 does. Last, the bill gives the tobacco industry undue influence and creates gridlock on an important scientific advisory committee by giving the tobacco industry the same number of voting representatives as health professionals and scientists--a 19-member board with 10 health care experts, 4 members of the general public, 2 representatives of tobacco manufacturing, 1 representative of small tobacco manufacturing, 1 representative of the tobacco growers, and 1 expert on illicit trade of tobacco products. Somehow, 14 health care experts and 1 trade expert can be depicted by the Campaign for Tobacco-Free Kids as being the same number as 4 tobacco-related members of the advisory board. So clearly, 15 without a tie to tobacco, 4 with a remote tie to tobacco, and the Campaign for Tobacco-Free Kids said that by giving the tobacco industry the same number of voting representatives as health care professionals and scientists--Mr. President, the American people deserve an honest debate. They deserve the information on one side of a bill or another to be factual. I am not sure how you can look at 15 individuals in one category and 4 in another and portray for a minute that is the same number. But that is what the Campaign for Tobacco-Free Kids does. If, in fact, they have misled in the letter to the committee about H.R. 1256 and the substitute, what else haven't they told us or what else have they told us that is not accurate? It brings into question that effort and, clearly, in 1256, the effort is not to reduce the risk of disease or use of tobacco products. Mr. President, how much time do I have?

Mr. BURR

Mr. BURR. Mr. President, I ask unanimous consent to be recognized for up to 30 minutes.

Mr. BURR. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.