Tom Harkin

Mr. HARKIN

Mr. HARKIN. I respond to the Senator this way, and we had this discussion earlier. The Synar regulation of SAMHSA is not an enforcement program. FDA is. SAMHSA provides no incentives for retailers to stop illegal sales to kids. Through its tobacco initiative, FDA will educate retailers about their responsibility, and can assess penalties and penalize retailers if they repeatedly sell to kids. SAMHSA does not provide enforcement power or enforcement money.

Mr. HARKIN. That is true.

Mr. HARKIN. I yield for a question from the Senator from Kentucky.

Mr. HARKIN. I will yield for a question.

Mr. HARKIN. No, because the States will contract with FDA to help carry out the FDA rule. But there is no mandate that the States have to enforce the FDA rule. We are seeking, with this amount of money, $34 million, a way of implementing the rule through the use of State and local governments to help enforce this rule. But there is no mandate that they have to do so; absolutely none whatsoever.

Mr. HARKIN. The Senator is absolutely correct, there is no way we could make them enforce it.

Mr. HARKIN. That is true.

Mr. HARKIN. If I may respond again to the Senator, I think there is a bit of confusion here. It is my understanding that the FDA rule does not impose a mandate on States. It imposes an obligation on retailers who sell tobacco or tobacco products not to sell them to anyone under the age of 18. In fact, the rule says that anyone under the age of 27 must provide a valid photo ID to prove their age is over the age of 18. The money that we are seeking here is to go out to the States and local communities to help them, and to help retailers, enforce and comply with the FDA rule. The FDA rule does not apply to a State. It applies to retailers, and not to a State.

Mr. HARKIN. I am told that figure is $34 million. And that is what they are requesting. They are requesting $34 million to expand it from 10 States to 50 States.

Mr. HARKIN. If I might respond, that $4.9 million only covers 10 States. We want to cover 50 States. Thus the need for the $34 million.

Mr. HARKIN. As I understand it, what the Senator is suggesting is that this money is to help the Federal Government meet its obligations of ensuring that we do not mandate States to do things which we do not fund.

Mr. HARKIN. I am sorry.

Mr. HARKIN. Yes.

Mr. HARKIN. Yes. It raises the 4.9 up to 34.

Mr. HARKIN. No, they have asked for $34 million. That includes the $4.9 million.

Mr. HARKIN. The Senator from Arkansas is correct with respect to the $4.9 million. As I understand it, the $4.9 million is what is expected to be spent this year for the first step in this initiative, this FDA initiative to cut down on tobacco sales to minors under the age of 18. The $4.9 million is the first step in that process.

Mr. HARKIN. This Senator is not aware of any. However, I would not unequivocally state there is not.

Mr. HARKIN. I understand that that is, indeed, what the FDA initiative is for, is to provide funds to the States to implement it and to carry it out.

Mr. HARKIN. Yes, that is true.

Mr. HARKIN. I yield only for a question.

Mr. HARKIN. Well, Mr. President, I think that we are all very clear on this. Now, I had in good faith with the Senator from North Carolina made an agreement earlier that I would be permitted the yeas and nays on my amendment, which required unanimous consent at that point, that the Senator would then be allowed to modify his amendment, which he did, and then we asked for the yeas and nays on the amendment of the Senator from North Carolina. We could then have a vote on his amendment and then have a vote on my underlying amendment--in other words, a vote first on the amendment of the Senator from North Carolina. If that prevailed, well, that would be the end of it. If it went down, then there would be an up-or-down vote on my amendment. And the Senator can correct me if I am wrong, but I believe that was the agreement and we shook hands on it.

Mr. HARKIN. Mr. President, I still have the floor.

Mr. HARKIN. Mr. President, first of all, I say to my friend from Mississippi that the amendment I offered is an entirely separate matter the proposed tobacco settlement that is being worked out with the attorneys general and the tobacco companies. In fact, I submitted for the Record earlier a copy of a letter from 33 attorneys general involved in the tobacco settlement supporting full funding for FDA's tobacco initiative. I have also a letter here from Michael Moore, who is the attorney general of the State of Mississippi who is the lead attorney general in the negotiations. He stated here, ``I would like to express my strong support for your amendment.'' Dated July 21. That would be 2 days ago. And he said, ``There has been some confusion regarding your amendment and whether it would interfere or conflict with the proposed settlement with the tobacco industry.'' He went on to say that he supported it. So this has nothing to do with the proposed tobacco settlement whatsoever. What this has to do with is the part of the proposed FDA rule that was upheld by the court in Greensboro, NC. The court upheld the authority of FDA to regulate tobacco sales to minors. The FDA promulgated the rule. It was upheld by the courts. Now, the administration has requested $34 million to implement the rule. It needs this amount to carry out the rules upheld by the court. However, in the Agriculture appropriations bill there is only $4.9 million to implement it. So we cannot reach out to all 50 States to get this rule implemented to cut down on sales of tobacco to young people. And due to the involvement, I might say the good involvement, of the Senator from West Virginia, a provision was added to our amendment that says that in carrying out the responsibilities under the Food and Drug Administration initiative, States are encouraged to coordinate enforcement efforts with the enforcement of laws that prohibit under- age drinking. That is, I might add, a very worthwhile addition to this amendment. So I hope Senators are not confused. This has nothing to do with the tobacco settlement whatsoever. This has everything to do with whether or not we are going to have enforcement of the FDA rule to prevent sales of tobacco to kids. I would also point out there is some talk that somehow this FDA initiative is duplicative of the SAMHSA regulations. I am informed that it is not. This is because SAMHSA is not an enforcement program but FDA is. SAMHSA provides no incentives for retailers to stop illegal sales to kids. FDA will educate retailers about their responsibility and penalize retailers if they repeatedly sell to kids. And so SAMHSA is a lot different than FDA's tobacco initiative. Now, why does the FDA need the full $34 million? Well, basically, the Court provided FDA with full authority to regulate cigarettes and smokeless tobacco products and with full authority to continue implementing provisions of the FDA initiative that sets a minimum age of 18 for buying tobacco and requires retailers to check the photo ID of consumers seeking to purchase tobacco. Given that there are more than a half a million retailers in this country, it will be a big task to educate retailers about their responsibilities. Funds are also needed to conduct periodic compliance checks. So the $34 million is not that much money given the task at hand. The Court did strike down parts of the FDA rule, but resources are needed to enforce the minimum age and ID check rules that were fully upheld by the Court. Mr. President, $34 million is a very small investment when you realize that tobacco use drains more than $50 billion from our health care system each year. So this is a very small amount of money. Now, Mr. President, I have a parliamentary inquiry. Might I inquire of the Chair, what is the business before the Senate? I make a parliamentary inquiry.

Mr. HARKIN. Will the Senator yield for a question?

Mr. HARKIN. If the Senator will yield.