I

103D CONGRESS

1ST SESSION H. R. 3614

To prescribe labels for packages and advertising for tobacco products, to

restrict the advertising and promotion of tobacco products, and for other

purposes.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 22, 1993

Mr. WAXMAN (for himself, Mr. SYNAR, Mr. WYDEN, Mr. DURBIN, and Mrs.

SCHROEDER) introduced the following bill; which was referred to the

Committee on Energy and Commerce

A BILL

To prescribe labels for packages and advertising for tobacco

products, to restrict the advertising and promotion of

tobacco products, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Tobacco Education

5 and Child Protection Act’’.

6 SEC. 2. PURPOSE.

7 It is the purpose of this Act to assure that accurate

8 information on the adverse health effects of tobacco use
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1 are displayed on tobacco product packaging, advertising,

2 and promotion in an effective means that will assist—

3 (1) adolescents who are tempted to start using

4 tobacco products,

5 (2) adolescents who are experimenting with to6 bacco and are not yet addicted to tobacco, and

7 (3) adults and adolescents who are considering

8 quitting,

9 to reduce serious risks to their health.

10 SEC. 3. FINDINGS.

11 The Congress finds the following:

12 (1) Tobacco products are the largest prevent13 able cause of illness and premature death in the

14 United States.

15 (2) Tobacco is a uniquely harmful product in

16 that it is the only product which kills when used as

17 intended.

18 (3) Cigarettes and smokeless tobacco products

19 are powerfully addictive because they contain nico20 tine which is a poisonous, addictive drug.

21 (4) The vast majority of new smokers are teen22 agers or younger, and children are beginning to

23 smoke today at a younger age than ever before.

24 (5) In 1990, the Office of Technology Assess25 ment estimated that the United States health care
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1 system spent an estimated $21,000,000,000 to treat

2 diseases caused by tobacco use, of which the Federal

3 Government paid about $6,300,000,000, while lost

4 productivity costs due to smoking related illness and

5 premature death were $47,000,000,000.

6 (6) In 1993 the tobacco industry will spend

7 over $4,000,000,000 on advertising and promotion

8 to attract new users, retain current users, increase

9 current consumption, and generate favorable long10 term attitudes toward smoking and tobacco use.

11 (7) The Federal Government has a substantial

12 interest in ensuring that those who do not use to13 bacco products are not encouraged to use them and

14 those who use tobacco products are discouraged

15 from continuing their use.

16 (8) A failure to provide adequate and complete

17 health warnings and labeling information to fully in18 form consumers about the risks and dangers of to19 bacco use is misleading.

20 (9) Health warnings on cigarette packages have

21 not been updated since 1984 and do not fully reflect

22 current scientific knowledge on the adverse health

23 effects of tobacco use.
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1 (10) The display format of tobacco health

2 warnings can be more effective as a vehicle for pro3 moting public knowledge of the health risks.

4 (11) Health warnings are most effective when

5 directed at those people who are tempted to try

6 smoking, who are experimenting with smoking, or

7 who are considering a decision to quit smoking.

8 (12) Health warnings will be most effective

9 when they are present each time the opportunity to

10 use a tobacco product occurs and each time tobacco

11 products are promoted and advertised.

12 (13) Health warnings must be displayed on all

13 materials that bear a tobacco product brand name or

14 logo because a growing percentage of tobacco adver15 tising expenses have been shifted to activities that

16 are not presently required to display Federal health

17 warnings.

18 (14) Changes in warning format and revisions

19 in the text of health warnings further the Federal

20 government’s commitment to reduce tobacco related

21 disease and are a low cost means of enhancing the

22 effectiveness of other tobacco reduction programs.

23 SEC. 4. PRODUCT PACKAGE LABELING.

24 (a) IN GENERAL.—
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1 (1) CIGARETTES.—It shall be unlawful for any

2 person to manufacture, package, or distribute for

3 sale within the United States any cigarettes unless

4 the cigarette package bears, in accordance with the

5 requirements of this section, one of the following

6 warning labels:

7 SURGEON GENERAL’S WARNING: Ciga8 rettes Can Kill You

9 SURGEON GENERAL’S WARNING: Ciga10 rettes Cause Lung Cancer and Emphysema

11 SURGEON GENERAL’S WARNING: Ciga12 rettes Are a Leading Cause of Infant Mortality

13 SURGEON GENERAL’S WARNING: Ciga14 rettes Cause Heart Disease and Stroke

15 SURGEON GENERAL’S WARNING: This

16 Product Contains Nicotine, an Addicting Drug

17 SURGEON GENERAL’S WARNING: Quit18 ting Cigarettes Will Improve Athletic Perform19 ance

20 SURGEON GENERAL’S WARNING: Smok21 ing During Pregnancy Can Harm Your Baby

22 SURGEON GENERAL’S WARNING: Ciga23 rette Smoke Can Be Harmful to Child Develop24 ment
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1 SURGEON GENERAL’S WARNING: Smoke

2 From These * Cigarettes Can Cause Cancer in

3 Nonsmokers.

4 For purposes of the last warning in the preceding

5 sentence, * denotes the name of the brand of ciga6 rettes required to bear such label.

7 (2) SPIT TOBACCO PRODUCT.—It shall be un8 lawful for any person to manufacture, package, or

9 distribute for sale within the United States any spit

10 tobacco product unless the product package bears, in

11 accordance with the requirements of this section, one

12 of the following warning labels:

13 SURGEON GENERAL’S WARNING: Spit

14 Tobacco Can Cause Mouth Cancer

15 SURGEON GENERAL’S WARNING: Spit

16 Tobacco Is Not a Safe Alternative to Cigarettes

17 SURGEON GENERAL’S WARNING: This

18 Product Contains Nicotine, an Addicting Drug.

19 SURGEON GENERAL’S WARNING: Use of

20 * Spit Tobacco Can Cause Gum Disease and

21 Tooth Loss

22 For purposes of the last warning in the preceding

23 sentence, * denotes the name of the brand of spit to24 bacco required to bear such label.

25 (b) LABEL FORMAT.—
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1 (1) IN GENERAL.—The warning labels required

2 by subsection (a) shall—

3 (A) appear on the top of the 2 most promi4 nent sides of the product package on which the

5 label is required,

6 (B) be in a size which is not less than 25

7 percent of the side on which the label is placed,

8 (C) appear in white letters on black back9 ing or in black letters on white backing, which10 ever is more conspicuous and prominent in con11 trast to the color of the package, except that

12 the words ‘‘SURGEON GENERAL’S WARN13 ING’’ shall appear in bright red letters,

14 (D) be in a rectangular shape enclosed in

15 a border of color contrasting to the color of the

16 backing prescribed by subparagraph (C) and to

17 the predominant color of the package, and

18 (E) include letters in a height, thickness,

19 and type face which assures that the letters in

20 the space provided for the statement will be no

21 less legible, prominent, and conspicuous than

22 the most legible, prominent, and conspicuous

23 typeface, typography, and size of other matter

24 printed on the side of the package on which the

25 label statement appears.
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1 (2) LABEL REQUIREMENT FOR OTHER PROD2 UCTS.—Any non-tobacco product—

3 (A) which bears the name of a tobacco

4 product brand or brand family or which uses a

5 color or color combination, logo, or symbol asso6 ciated with a tobacco product brand or brand

7 family in its packaging, advertising, or pro8 motion, and

9 (B) the production or marketing of which

10 is substantially controlled by the manufacturer

11 of the tobacco product referenced on the non12 tobacco product,

13 shall incorporate, in its packaging, advertising, and

14 promotion, any label which is required for the pack15 aging of the tobacco product which is referenced.

16 (c) ROTATION.—The warning labels required by sub17 section (a) shall be rotated by each manufacturer of ciga18 rettes and spit tobacco products on each brand of ciga19 rettes and spit tobacco products in accordance with a plan

20 approved for the manufacturer by the Secretary. Each

21 such plan shall provide for an approximately even distribu22 tion of the labels among the packages of a brand of the

23 cigarettes and spit tobacco products of each manufacturer

24 each year.
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1 SEC. 5. LABELING IN ADVERTISING.

2 (a) IN GENERAL.—

3 (1) CIGARETTE ADVERTISING.—It shall be un4 lawful for any person to manufacture, package, or

5 distribute for sale within the United States any

6 brand of cigarettes unless the advertising for such

7 brand bears the warning label required for cigarettes

8 by section 4(a)(1).

9 (2) SPIT TOBACCO.—It shall be unlawful for

10 any person to manufacture, package, or distribute

11 for sale within the United States any spit tobacco

12 product unless the advertising for such product

13 bears the warning label required for spit tobacco

14 products by section 4(a)(2)).

15 (b) FORMAT.—

16 (1) WARNING LABELS.—The warning label re17 quired by subsection (a) for advertising shall—

18 (A) appear in white letters on black back19 ing or in black letters on white backing, which20 ever is most prominent relative to the color of

21 the advertisement, except that the words ‘‘SUR22 GEON GENERAL’S WARNING’’ shall appear

23 in bright red letters,

24 (B) be in a rectangular shape which occu25 pies 25 percent of the space of each advertise26 ment and which is located at the top of the ad-
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1 vertisement and enclosed in a border of color

2 contrasting to the color of the backing pre3 scribed by subparagraph (A) and to the pre4 dominant color of the advertisement of the to5 bacco product being advertised, and

6 (C) include letters in a type face and size

7 which, within the space limitation prescribed by

8 subparagraph (B), assure that the letters in the

9 statement will be no less legible, prominent, or

10 conspicuous than the most legible, prominent,

11 and conspicuous typeface, typography, and size

12 of other matter printed on the advertisement.

13 (2) BILLBOARDS WITH LIGHTING.—The warn14 ing label on billboards which use artificial lighting

15 shall be no less visible than other printed matter on

16 the billboard when the lighting is in use.

17 (c) ROTATION.—

18 (1) NON-BILLBOARD ADVERTISING.—Warning

19 labels on advertising (other than billboard advertis20 ing) shall be rotated quarterly in alternating se21 quence for each brand of cigarettes or spit tobacco

22 product manufactured by the manufacturer or im23 ported by the importer in accordance with a plan

24 submitted by the manufacturer or importer and ap25 proved by the Secretary.
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1 (2) BILLBOARDS.—Warning labels on advertis2 ing displayed on billboards shall be rotated annually

3 or whenever the advertisement is changed, whichever

4 occurs first.

5 SEC. 6. ADVERTISING AND PROMOTION REQUIREMENTS.

6 (a) ADVERTISING.—It shall be unlawful for any per7 son to manufacture, package, or distribute for sale within

8 the United States any tobacco product unless the advertis9 ing for such tobacco product conforms with the following

10 requirements:

11 (1) AUDIO TAPE, AUDIO DISCS, VIDEOTAPE,

12 AND FILM.—No tobacco product may be advertised

13 on any audio tape, audio disc, videotape, video ar14 cade game, or film.

15 (2) LOCATION.—No tobacco product advertise16 ment shall be located—

17 (A) in or on a sports stadium or other

18 sports facility or any other facility where sport19 ing activity is performed, or

20 (B) within 2,000 feet of any school which

21 students under the age of 18 years of age regu22 larly attend.

23 (3) CONTENT.—

24 (A) IN GENERAL.—Except as provided in

25 subparagraph (B), no tobacco advertisement or
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1 package label shall contain any representation

2 with respect to health or safety, including rep3 resentations concerning the level of or removal,

4 reduction, or addition of ingredients, tar, nico5 tine, carbon monoxide, or filters or any other

6 mechanism, device, or constituent.

7 (B) EXCEPTION.—A tobacco advertisement

8 tobacco product package label may contain a

9 representation described in subparagraph (A)

10 if—

11 (i) the Secretary has determined by

12 regulation that such representation is sig13 nificant in terms of affecting health and

14 safety and is based upon significant sci15 entific agreement, and

16 (ii) such representation is presented

17 in such form as the Secretary may by reg18 ulation prescribe.

19 (b) PROMOTION.—It shall be unlawful for any person

20 to manufacture, package, or distribute for sale within the

21 United States any tobacco product unless the promotion

22 for such tobacco product conforms with the following

23 requirements:
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1 (1) DISTRIBUTION.—No tobacco product may

2 be distributed or caused to be distributed as a free

3 sample.

4 (2) VENDING MACHINE.—No tobacco product

5 may be sold or distributed through a vending ma6 chine unless the machine is located in a facility

7 which prohibits entry to all individuals under age 18

8 and which displays a health warning pursuant to

9 regulations of the Secretary which assure promi10 nence equivalent to that required by section 5(b)(1).

11 (3) SPONSORSHIP.—No athletic, music, artistic,

12 or other event may be sponsored or caused to be

13 sponsored in the name of a tobacco product trade14 mark or in a manner so that a tobacco product

15 trademark is publicly identified as a sponsor of, or

16 in any way associated with, such an event unless the

17 Secretary has approved a plan for the simultaneous

18 dissemination of health information at such event in

19 the same proportion or prominence as the sponsor

20 has sponsored such event.

21 (4) APPEARANCE WITH ENTERTAINMENT.—To

22 pay or cause to be paid to have any tobacco product

23 or any tobacco product trademark appear in any

24 movie, music video, television show, play, video ar25 cade game, or other form of entertainment.
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1 (5) SPORTS EQUIPMENT.—No tobacco product

2 trademark may appear on any vehicle, boat, or other

3 equipment or clothing used in sports unless such

4 equipment or clothing displays a health warning pur5 suant to regulations of the Secretary which assure

6 prominence equivalent to that required by section

7 5(b)(1).

8 SEC. 7. AUTHORITY TO REVISE HEALTH WARNINGS.

9 The Secretary may by regulation revise any health

10 warning required by section 4 or 5 and the format for

11 the display of such warning if the Secretary finds that

12 such revision would promote greater understanding of the

13 risks of tobacco.

14 SEC. 8. ENFORCEMENT.

15 (a) IN GENERAL.—

16 (1) The Secretary shall issue such regulations

17 as may be appropriate for the implementation of this

18 Act. The Secretary shall issue proposed regulations

19 for such implementation within 180 days of the date

20 of the enactment of this Act. Not later than 180

21 days after the date of the publication of such pro22 posed regulations, the Secretary shall issue final reg23 ulations for such implementation. If the Secretary

24 does not issue such final regulations before the expi25 ration of such 180 days, the proposed regulations
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1 shall become final and the Secretary shall publish a

2 notice in the Federal Register about the new status

3 of the proposed regulations.

4 (2) In carrying out the Secretary’s duties under

5 this Act, the Secretary shall, as appropriate, consult

6 with such experts as may have appropriate training

7 and experience in the matters subject to such duties.

8 (3) The Secretary shall monitor compliance

9 with the requirements of this Act.

10 (4) The Secretary shall recommend to the At11 torney General such enforcement actions as may be

12 appropriate.

13 (b) INJUNCTION.—

14 (1) The district courts of the United States

15 shall have jurisdiction over civil actions brought to

16 restrain violations of sections 4, 5, 6, 7, and 8. Such

17 a civil action may be brought in the United States

18 district court for the judicial district in which any

19 substantial portion of the violation occurred or in

20 which the defendant is found or transacts business.

21 In such a civil action, process may be served on a

22 defendant in any judicial district in which the de23 fendant resides or may be found and subpoenas re24 quiring attendance of witnesses in any such action

25 may be served in any judicial district.
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1 (2) Any interested organization may bring a

2 civil action described in paragraph (1). If such an

3 organization substantially prevails in such an action,

4 the court may award it reasonable attorney’s fees

5 and expenses. For purposes of this paragraph, the

6 term ‘‘interested organization’’ means any nonprofit

7 organization one of whose purposes, and a substan8 tial part of its activities, include the promotion of

9 public health through reduction in the use of tobacco

10 products.

11 (c) CIVIL PENALTY.—Any person who manufactures,

12 packages, distributes, or advertises a tobacco product in

13 violation of section 4, 5, 6, 7, or 8 shall be subject to a

14 civil penalty of not more than $100,000 for each violation

15 per day.

16 SEC. 9. PREEMPTION.

17 (a) FEDERAL ACTION.—No statement relating to the

18 use of a tobacco product and health effects, other than

19 a statement required by or under this Act, shall be re20 quired by any Federal agency to appear on any tobacco

21 product package or in any advertisement of a tobacco

22 product.

23 (b) STATE AND LOCAL ACTION.—No statement relat24 ing to the use of a tobacco product and health effects,

25 other than a statement required by or under this Act, shall
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1 be required by any State or local statute or regulation to

2 be included on any package of a tobacco product or in

3 any advertisement of a tobacco product.

4 (c) EFFECT ON LIABILITY LAW.—Compliance with

5 any requirement of this Act, the Federal Cigarette Label6 ing and Advertising Act (15 U.S.C. 1331 et seq.), or the

7 Comprehensive Smokeless Tobacco Health Education Act

8 of 1986 (15 U.S.C. 4401 et seq.) shall not relieve any per9 son from liability to any other person at common law or

10 under State statutory law.

11 SEC. 10. DEFINITIONS.

12 As used in this Act:

13 (1) The term ‘‘advertisement’’ means—

14 (A) all newspapers and magazine adver15 tisements and advertising inserts, billboards,

16 posters, signs, decals, banners, matchbook ad17 vertising, point-of-purchase display material

18 and all other written or other material used for

19 promoting the sale or consumption of tobacco

20 products to consumers,

21 (B) advertising promotion allowances,

22 (C) utilitarian items,

23 (D) any reference to the brand name of a

24 tobacco product, and
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1 (E) any other means used to promote the

2 identification or purchase of tobacco products.

3 (2) The term ‘‘brand’’ means a variety of to4 bacco products distinguished by the tobacco used,

5 tar and nicotine content, flavoring used, size of the

6 tobacco product, filtration, or packaging.

7 (3) The term ‘‘cigarette’’ means—

8 (A) any roll of tobacco wrapped in paper

9 or in any substance not containing tobacco

10 which is to be burned,

11 (B) any roll of tobacco wrapped in any

12 substance containing tobacco which, because of

13 its appearance, the type of tobacco used in the

14 filler, or its packaging and labeling is likely to

15 be offered to, or purchased by consumers as a

16 cigarette described in subparagraph (A),

17 (C) little cigars which are any roll of to18 bacco wrapped in leaf tobacco or any substance

19 containing tobacco (other than any roll of to20 bacco which is a cigarette within the meaning

21 of subparagraph (A)) and as to which one thou22 sand units weigh not more than 3 pounds, and

23 (D) loose rolling tobacco and papers or

24 tubes used to contain such tobacco.
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1 (4) The term ‘‘constituent’’ means any element

2 of tobacco or cigarette mainstream or sidestream

3 smoke, including tar, nicotine, and carbon monoxide.

4 (5) The term ‘‘distributor’’ does not include a

5 retailer and the term ‘‘distribute’’ does not include

6 retail distribution.

7 (6) The term ‘‘ingredient’’ means any substance

8 the intended use of which results, or may reasonably

9 be expected to result, directly or indirectly, in its be10 coming a component or otherwise affecting the char11 acteristics of any tobacco product.

12 (7) The term ‘‘representation’’ means any

13 statement, reference, or claim which is (A) expressed

14 or implied, (B) direct or indirect, or (C) oral, writ15 ten, or printed or in graphic form or in any com16 bination of such forms.

17 (8) The term ‘‘Secretary’’ means the Secretary

18 of Health and Human Services.

19 (9) The term ‘‘spit tobacco’’ means any finely

20 cut, ground, powdered, or leaf tobacco that is in21 tended to be placed in the oral cavity.

22 (10) The term ‘‘tobacco product’’ means—

23 (A) cigarettes,

24 (B) little cigars,
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1 (C) cigars as defined in section 5702 of

2 the Internal Revenue Code of 1954,

3 (D) pipe tobacco,

4 (E) loose rolling tobacco and papers used

5 to contain such tobacco,

6 (F) products referred to as spit tobacco,

7 and

8 (G) any other form of tobacco intended for

9 human consumption.

10 (11) The term ‘‘trademark’’ means any word,

11 name, symbol, logo, or device or any combination

12 thereof used by a person to identify or distinguish

13 such person’s goods from those manufactured or

14 sold by another person and to indicate the source of

15 the goods.

16 (12) The term ‘‘United States’’ includes the

17 States and installations of the Armed Forces of the

18 United States located outside a State.

19 (13) The term ‘‘State’’ includes, in addition to

20 the 50 States, the District of Columbia, Guam, the

21 Commonwealth of Puerto Rico, the Northern Mari22 ana Islands, the Virgin Islands, American Samoa,

23 and the Trust Territory of the Pacific Islands.
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1 SEC. 11. EFFECTIVE DATES AND CONFORMING AMEND2 MENTS.

3 (a) EFFECTIVE DATES.—This Act shall take effect

4 on the date of the enactment of this Act, except that

5 (1) sections 4, 5, and 6 shall take effect one

6 year after the date of the enactment of this Act,

7 (3) section 7 shall take effect 3 years after the

8 date of the enactment of this Act.

9 (b) CONFORMING AMENDMENTS.—Effective one year

10 from the date of the enactment of this Act, the Federal

11 Cigarette Labeling and Advertising Act (other than sec12 tions 6, 9, 10, and 11) (15 U.S.C. 1331 et seq.) and the

13 Comprehensive Smokeless Tobacco Health Education Act

14 of 1986 (other than sections 1, 2, 3(f), and 8) (15 U.S.C.

15 4401 et seq.) are repealed.

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