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In tobacco legislation, liability still key sticking point

From the April 1998 ACP Observer, copyright й 1998 by the American College of Physicians.

By Elizabeth Prewitt

With the 105th Congress nearing the end of its current session, it is unclear whether comprehensive tobacco control legislation will pass. While lawmakers seeking re-election in the fall know the public supports such legislation, solutions to many complex issues remain elusive.

One of the thorniest issues is liability for the tobacco industry. Two of the most trusted and authoritative public health experts, former Surgeon General C. Everett Koop, MD, and former FDA Commissioner David A. Kessler, MD, have taken a "no concessions for the industry" stance, while major public health groups such as the National Center for Tobacco-Free Kids and the American Cancer Society remain open to the idea of limited liability. President Clinton has tried to keep the focus of the debate on his five-point policy (see box, below), but he has conceded that liability should not be a deal breaker.

As a member of the Effective National Action to Control Tobacco (ENACT) coalition, the College has aligned itself with those who want the strongest possible legislation and has remained open to the idea of limited immunity, as long as all other public health goals are achieved. At its March meeting, ACP's Board of Regents debated which legislative strategy will best serve the public health.

In the debate over how to deal with the tobacco industry, some argue that if liability is not limited, the tobacco industry will fight proposed advertising restrictions in court on constitutional grounds. Only by agreeing to the industry's demands of limited liability, they say, can an enforceable agreement be worked out. Opponents to such concessions, however, counter that the industry's record of mendacity and promotion of smoking among young people make any such concessions untenable.

The question remains: Is comprehensive tobacco legislation achievable without the voluntary compliance of the industry on advertising restrictions? According to newspaper accounts, Dr. Kessler has avoided saying whether he would endorse concessions to obtain restraints on tobacco advertising. Five of the 20 signatories of an anti-immunity letter to Congress written by Drs. Koop and Kessler said in a subsequent letter that they would evaluate proposals—including those that contained limited liability protections—if the legislation could save "millions of lives by reducing tobacco use dramatically." The bottom line is that no one wants to concede anything to the industry unless it is the only way to pass comprehensive legislation.

While the College tackles the question of liability, it will continue to revise and expand its current public health policies on tobacco. ACP strongly supports FDA authority to regulate tobacco, the pricing of tobacco to reduce demand and public health initiatives to support education and cessation programs. See ACP's Web site (www.acponline.org) for information on ACP's tobacco position.

Elizabeth Prewitt is Director of Public Policy in ACP's Washington, D.C., office.


The president's five principles

President Clinton has proposed the following five principles to guide comprehensive tobacco legislation:

  • 1. A reduction in youth smoking by raising the price of a pack of cigarettes by up to $1.50 over 10 years.
    2. Full authority for the FDA to regulate tobacco products.
    3. Changes in the way the tobacco industry does business, including an end to marketing to children.
    4. Progress toward other public health goals such as a reduction of second-hand smoke and promotion of smoking cessation programs.
    5. Protection for tobacco farmers and their communities.

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