I

107TH CONGRESS

1ST SESSION H. R. 1044

To prevent children from using tobacco products, to reduce the health costs

attributable to tobacco products, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MARCH 15, 2001

Mr. WAXMAN (for himself, Mr. HANSEN, Mr. MEEHAN, Mrs. MORELLA, Mr.

DOGGETT, Mr. BONIOR, Ms. DEGETTE, Mrs. CAPPS, Ms. DELAURO, Mr.

LANTOS, Mr. MARKEY, Mr. STARK, Mr. ALLEN, Mr. MCDERMOTT, Ms.

SCHAKOWSKY, Mr. OLVER, Mr. HINCHEY, Ms. NORTON, Mrs.

TAUSCHER, Mr. OBERSTAR, Mr. GEORGE MILLER of California, Ms. RIVERS, Mr. BALDACCI, Mr. PAYNE, Mr. BORSKI, Ms. ROYBAL-ALLARD, Mr.

LAFALCE, Mr. KILDEE, Mr. DEFAZIO, Ms. SLAUGHTER, Ms. PELOSI,

Mr. COYNE, Mr. BLUMENAUER, Mrs. MALONEY of New York, Mr.

WEXLER, Mr. MCGOVERN, Ms. CARSON of Indiana, and Ms. SOLIS,) introduced the following bill; which was referred to the Committee on Energy and Commerce

A BILL

To prevent children from using tobacco products, to reduce

the health costs attributable to 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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Child Tobacco Use Prevention Act of 2001’’.
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1 (b) TABLE OF CONTENTS.—The table of contents of

2 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—FDA JURISDICTION OVER TOBACCO PRODUCTS

Sec. 101. Reference.

Sec. 102. Definitions.

Sec. 103. Amendments to chapter V.

Sec. 104. Validation of the FDA rule.

Sec. 105. Special provisions for tobacco products.

Sec. 106. General provisions.

Sec. 107. Repeal.

TITLE II—PERFORMANCE OBJECTIVES TO REDUCE CHILD

TOBACCO USE

Sec. 201. Annual performance surveys.

Sec. 202. Performance objectives.

Sec. 203. Additional measures to reduce child tobacco use.

Sec. 204. Proceeds of price increases.

Sec. 205. Judicial review.

Sec. 206. General provisions.

Sec. 207. Use of tobacco products among minority populations.

Sec. 208. Definitions.

TITLE III—SMOKE-FREE ENVIRONMENTS

Sec. 301. Smoke-free environment policy.

Sec. 302. Citizen actions.

Sec. 303. Regulations.

Sec. 304. Definitions.

Sec. 305. Preemption.

Sec. 306. Effective date.

TITLE IV—TOBACCO PREVENTION INITIATIVES

Sec. 401. National public awareness campaign.

Sec. 402. Federal implementation.

Sec. 405. Minority populations.

Sec. 406. Inflation adjustment.

3 TITLE I—FDA JURISDICTION

4 OVER TOBACCO PRODUCTS

5 SEC. 101. REFERENCE.

6 Whenever in this title an amendment or repeal is ex7 pressed in terms of an amendment to, or repeal of, a sec8 tion or other provision, the reference shall be considered
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1 to be made to a section or other provision of the Federal

2 Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).

3 SEC. 102. DEFINITIONS.

4 (a) DRUG.—Section 201(g)(1) (21 U.S.C. 321(g)(1))

5 is amended by striking ‘‘; and (D)’’ and inserting ‘‘; (D)

6 nicotine in tobacco products; and (E)’’.

7 (b) DEVICES.—Section 201(h) (21 U.S.C. 321(h)) is

8 amended by adding at the end the following: ‘‘Such term

9 includes a tobacco product.’’.

10 (c) OTHER DEFINITIONS.—Section 201 (21 U.S.C.

11 321) is amended by adding at the end the following:

12 ‘‘(kk) The term ‘tobacco product’ means any product

13 made or derived from tobacco that is intended for human

14 consumption.’’.

15 SEC. 103. AMENDMENTS TO CHAPTER V.

16 (a) MISBRANDING.—Section 502 (21 U.S.C. 360) is

17 amended by adding at the end the following:

18 ‘‘(u) In the case of a tobacco product, if it does not

19 comply with a requirement under subchapter F.’’.

20 (b) CLARIFICATION OF AUTHORITY.—Section 520(e)

21 (21 U.S.C. 360j(e)) is amended by adding at the end the

22 following:

23 ‘‘(3) In the case of tobacco products, the restrictions

24 on sale and distribution authorized by paragraph (1) shall
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1 include restrictions on advertising and promotion of to2 bacco products.’’.

3 (c) PREEMPTION.—Section 521(a) (21 U.S.C.

4 360k(a)) is amended—

5 (1) by striking ‘‘Except as provided in sub6 section (b)’’ and inserting ‘‘Except in the case of to7 bacco products and as provided in subsection (b)’’;

8 and

9 (2) by adding at the end the following:

10 ‘‘TOBACCO PRODUCTS

11 ‘‘(c) If the package or advertisement of a tobacco

12 product is required to bear a warning under this Act, no

13 statement relating to the use of the tobacco product and

14 health, other than a statement required under this Act,

15 may be required by any State or local statute or regulation

16 to be included on any package or in any advertisement

17 of such tobacco product.’’.

18 SEC. 104. VALIDATION OF THE FDA RULE.

19 (a) IN GENERAL.—All provisions of the regulations

20 related to tobacco products promulgated by the Secretary

21 of Health and Human Services on August 28, 1996 (61

22 Fed. Reg. 44396) shall be considered to be lawful, and

23 to have been lawfully promulgated, under the Federal

24 Food, Drug, and Cosmetic Act.
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1 (b) EFFECTIVE DATE.—All provisions of such regula2 tions shall take effect upon the expiration of 1 year after

3 the date of the enactment of this Act.

4 SEC. 105. SPECIAL PROVISIONS FOR TOBACCO PRODUCTS.

5 Chapter V is amended by adding at the end the fol6 lowing:

7 ‘‘Subchapter F—Special Provisions for

8 Tobacco Products

9 ‘‘SEC. 565. SPECIAL STANDARD FOR TOBACCO PRODUCTS.

10 ‘‘In the case of tobacco products, an action that pro11 vides appropriate protection of public health shall be

12 deemed to provide a reasonable assurance of safety and

13 effectiveness.

14 ‘‘SEC. 566. IMPLEMENTATION OF THE PROPOSED RESOLU15 TION.

16 ‘‘(a) ADDITIONAL RESTRICTIONS ON MARKETING,

17 ADVERTISING, AND ACCESS.—Not later than 18 months

18 after the date of the enactment of this subchapter, the

19 Secretary shall revise the regulations related to tobacco

20 products promulgated by the Secretary on August 28,

21 1996 (61 Fed. Reg. 44396) to include the additional re22 strictions on marketing, advertising, and access described

23 in Title IA and Title IC of the Proposed Resolution en24 tered into by the tobacco manufacturers and the State at25 torneys general on June 20, 1997, except that the Sec-
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1 retary shall not include an additional restriction on mar2 keting or advertising in such regulations if its inclusion

3 would violate the First Amendment to the Constitution.

4 ‘‘(b) WARNINGS.—

5 ‘‘(1) CIGARETTES AND SMOKELESS TOBACCO.—

6 Not later than 18 months after the date of the en7 actment of this subchapter, the Secretary shall pro8 mulgate regulations to require warnings on cigarette

9 and smokeless tobacco labeling and advertisements.

10 The content, format, and rotation of warnings shall

11 conform to the specifications described in Title IB of

12 the Proposed Resolution entered into by the tobacco

13 manufacturers and the State attorneys general on

14 June 20, 1997.

15 ‘‘(2) PROHIBITION.—It shall be unlawful to ad16 vertise tobacco products on any medium of electronic

17 communication subject to the jurisdiction of the

18 Federal Communications Commission.

19 ‘‘(c) INGREDIENTS.—

20 ‘‘(1) IN GENERAL.—Not later than 18 months

21 after the date of enactment of this subchapter, the

22 Secretary shall promulgate regulations relating to

23 ingredients in tobacco products. Except as provided

24 in paragraph (2), such regulations shall conform to

25 the specifications described in Title IF of the Pro-
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1 posed Resolution entered into by the tobacco manu2 facturers and the State attorneys general on June

3 20, 1997.

4 ‘‘(2) FAILURE TO ACT.—If the Secretary fails

5 to approve or disapprove an ingredient’s safety with6 in the review period prescribed under the regulations

7 under paragraph (1), such failure shall not be con8 sidered an approval of such ingredient.

9 ‘‘(d) REDUCED-RISK PRODUCTS.—No manufacturer

10 of a tobacco product may state or imply in the labeling

11 or advertisements of the tobacco product that the tobacco

12 product presents a reduced risk to health unless the Sec13 retary has determined that the tobacco product does

14 present a significantly reduced risk to health.

15 ‘‘(e) OTHER AUTHORITY.—This section does not

16 limit the authority the Secretary has under other provi17 sions of this Act with respect to tobacco products.

18 ‘‘SEC. 567. STATE TOBACCO CONTROL PROGRAMS.

19 ‘‘(a) IN GENERAL.—Effective 2 years after the date

20 of the enactment of this subchapter, a State may not re21 ceive funds under this Act for tobacco control activities

22 unless the State has put into law a State tobacco control

23 program that conforms to the model State program estab24 lished by the Secretary under subsection (b).

25 ‘‘(b) MODEL STATE PROGRAM.—
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1 ‘‘(1) GENERAL RULE.—Within one year of the

2 date of the enactment of this subchapter, the Sec3 retary shall establish a model State tobacco control

4 program.

5 ‘‘(2) PROGRAM CONTENT.—The model State to6 bacco control program established under paragraph

7 (1) shall—

8 ‘‘(A) require persons who sell tobacco

9 products to individuals for personal consump10 tion to obtain a license from the State;

11 ‘‘(B) require licensed retailers to comply

12 with the requirements under this Act that are

13 applicable to tobacco product retailers;

14 ‘‘(C) prohibit any individual from pur15 chasing tobacco products for resale or distribu16 tion to individuals under the age of 18;

17 ‘‘(D) include minimum requirements for

18 the conduct and frequency of compliance in19 spections of licensed retailers;

20 ‘‘(E) include State performance objectives,

21 including objectives for reducing the level of vio22 lations observed during compliance inspections;

23 ‘‘(F) include provisions for appropriate

24 penalties for violations of the program require-
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1 ments, including provisions for license suspen2 sion and revocation; and

3 ‘‘(G) include such other provisions as the

4 Secretary determines are appropriate to protect

5 public health.

6 ‘‘(c) FAILURE TO IMPLEMENT.—If a State fails to

7 effectively implement a State tobacco control program

8 which conforms to the Model State program established

9 under subsection (b) or if a State fails to achieve the per10 formance objectives applicable to the State under the

11 Model State program, the Secretary shall withhold up to

12 20 percent of the funds made available under this Act to

13 the State for tobacco control activities.

14 ‘‘(d) FEDERAL LICENSING PROGRAM.—Within one

15 year of the date of the enactment of this subchapter, the

16 Secretary shall establish Federal licensing requirements

17 for—

18 ‘‘(1) tobacco product retailers operating on

19 Federal property;

20 ‘‘(2) tobacco product retailers operating in a

21 State which does not put into law or effectively im22 plement a State tobacco control program which con23 forms to the Model State Program; and

24 ‘‘(3) such other tobacco product retailers as the

25 Secretary may specify.
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1 The Federal tobacco control requirements shall conform

2 to the licensing requirements of the Model State Program.

3 ‘‘(e) FEDERAL AUTHORITY.—The Secretary may

4 order a retailer licensed by a State to suspend or cease

5 selling tobacco products if the tobacco product retailer is

6 in violation of a requirement under this Act related to to7 bacco products.

8 ‘‘(f) INDIAN TRIBES.—In the case of tobacco product

9 retailers operating on Indian reservations, the governing

10 Indian tribe or tribal organization shall be treated as a

11 State.’’.

12 SEC. 106. GENERAL PROVISIONS.

13 (a) ENFORCEMENT.—Section 301 (21 U.S.C. 331) is

14 amended by adding at the end the following:

15 ‘‘(bb) The violation of any requirement under this Act

16 relating to tobacco products.’’.

17 (b) ACCESS TO INFORMATION.—Section 701 (21

18 U.S.C 371) is amended by adding at the end the following:

19 ‘‘(h) To acquire information related to tobacco prod20 ucts, the Secretary may administer oaths and require the

21 testimony of witnesses and the production of documents

22 and other materials. The Secretary may disclose to the

23 public information acquired under this subsection if the

24 Secretary determines that disclosure is appropriate to pro25 tect public health.’’.
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1 SEC. 107. REPEAL.

2 The Federal Cigarette Labeling and Advertising Act

3 (15 U.S.C. 1331 et seq.) and the Comprehensive Smoke4 less Tobacco Health Education Act of 1986 (15 U.S.C.

5 4401 et seq.) are repealed on the date the regulations de6 scribed in section 566(b) of the Federal Food, Drug, and

7 Cosmetic Act take effect.

8 TITLE II—PERFORMANCE OB9 JECTIVES TO REDUCE CHILD

10 TOBACCO USE

11 SEC. 201. ANNUAL PERFORMANCE SURVEYS.

12 Within 1 year after the date of the enactment of this

13 Act and annually thereafter the Secretary shall conduct

14 a survey to determine for each manufacturer the percent15 age of children who use a tobacco product of the manufac16 turer.

17 SEC. 202. PERFORMANCE OBJECTIVES.

18 (a) PERFORMANCE OBJECTIVES FOR EXISTING MAN19 UFACTURERS.—Each existing manufacturer shall have as

20 a performance objective the reduction of its child tobacco

21 use level below its baseline level by at least the following

22 percentage of its baseline level:

23 (1) In the third and fourth annual performance

24 surveys, 33 percent.

25 (2) In the fifth and sixth annual performance

26 surveys, 50 percent.
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1 (3) In the seventh, eighth, and ninth annual

2 performance surveys, 67 percent.

3 (4) In the tenth and each succeeding annual

4 performance survey, 80 percent.

5 However, in no case is the performance objective for a

6 manufacturer to reduce its child tobacco use level below

7 the de minimis level.

8 (b) PERFORMANCE OBJECTIVES FOR NEW MANU9 FACTURERS.—Beginning with the third annual perform10 ance survey, a new manufacturer shall have as its per11 formance objective maintaining its child tobacco use level

12 at no more than the de minimis level.

13 (c) LEVELS.—For purposes of this title:

14 (1) BASELINE LEVEL.—The baseline level of

15 each manufacturer is the manufacturer’s child to16 bacco use level determined in the first annual per17 formance survey.

18 (2) DE MINIMIS LEVEL.—The de minimis level

19 is 0.5 percent of children.

20 SEC. 203. ADDITIONAL MEASURES TO REDUCE CHILD TO21 BACCO USE.

22 (a) SECRETARIAL DETERMINATION.—Before the end

23 of the third year after the date of the enactment of this

24 Act and annually thereafter, the Secretary shall, based on

25 the annual performance survey conducted for such year,
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1 determine if each manufacturer has achieved the applica2 ble performance objective under section 202. The Sec3 retary shall publish in the Federal Register such deter4 mination and any additional measures required under this

5 section.

6 (b) FAILURE TO ACHIEVE.—If the Secretary deter7 mines under subsection (a) that a manufacturer has failed

8 to achieve the applicable performance objective for an an9 nual performance survey, the additional measures speci10 fied in this section shall be required to further reduce the

11 manufacturer’s child tobacco use level.

12 (c) FIRST FAILURE.—If the Secretary determines

13 under subsection (a) that a manufacturer has failed to

14 achieve the applicable performance objective for an annual

15 performance survey and the manufacturer did not so fail

16 with respect to the prior survey, the manufacturer shall

17 for each unit of its tobacco products increase the price

18 it charges by—

19 (1) $0.01 for each of the first 10 percentage

20 points by which the manufacturer fails to achieve its

21 performance objective; plus

22 (2) $0.02 for each of the second 10 percentage

23 points, if any, by which the manufacturer fails to

24 achieve its performance objective; plus
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1 (3) $0.03 for each additional percentage point

2 over 21, if any, by which the manufacturer fails to

3 achieve its performance objective.

4 (d) SECOND FAILURE.—If the Secretary determines

5 under subsection (a) that a manufacturer has failed to

6 achieve the applicable performance objective for an annual

7 performance survey and such failure is the manufacturer’s

8 second consecutive failure, the manufacturer shall for each

9 unit of its tobacco products increase the price it charges

10 by twice the level required under subsection (c).

11 (e) THIRD FAILURE.—If the Secretary determines

12 under subsection (a) that a manufacturer has failed to

13 achieve the applicable performance objective for an annual

14 performance survey and such failure is the manufacturer’s

15 third consecutive failure, the following additional measures

16 shall apply:

17 (1) The manufacturer shall for each unit of its

18 tobacco products increase the price it charges by the

19 level prescribed by subsection (d).

20 (2) No retailer may sell the tobacco products of

21 the manufacturer in quantities smaller than a car22 ton.

23 (f) FOURTH AND SUCCESSIVE FAILURES.—If the

24 Secretary determines under subsection (a) that a manu25 facturer has failed to achieve the applicable performance
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1 objective for an annual performance survey and such fail2 ure is the manufacturer’s fourth or more consecutive fail3 ure, the following additional measures shall apply:

4 (1) The manufacturer shall for each unit of its

5 tobacco products increase the price it charges by the

6 level prescribed by subsection (d).

7 (2) No retailer may sell the tobacco products of

8 the manufacturer in quantities smaller than a car9 ton.

10 (3) The manufacturer may package its tobacco

11 products only in packages that bear only black text

12 on a white background except for warning labels

13 that are required to appear in a different format.

14 (g) EFFECTIVE DATES.—

15 (1) PRICE INCREASES.—If the Secretary deter16 mines under subsection (a) that a manufacturer has

17 failed to achieve the applicable performance objective

18 for an annual performance survey, the price increase

19 that is required under this section as a result of

20 such determination shall apply to each unit of its to21 bacco products manufactured or imported in the

22 United States during the 12-month period beginning

23 30 days after the determination, except that such

24 price increase shall not apply to tobacco products
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1 that are manufactured or imported by the manufac2 turer for export.

3 (2) NON-MONETARY MEASURES.—The Sec4 retary shall by regulation prescribe an effective date

5 that is as expeditious as practicable for the non6 monetary additional measures described in sub7 sections (e) and (f). Such measures shall remain in

8 effect until the Secretary determines under sub9 section (a) that the manufacturer has achieved the

10 applicable performance objective for an annual per11 formance survey.

12 (h) ADJUSTMENTS.—

13 (1) GENERAL RULE.—The amount of any price

14 increase that is required under this section shall be

15 increased by the percentage increase in the Con16 sumer Price Index for all urban consumers (all

17 items, U.S. city average) from 2001 to the year be18 fore the year in which the price increase takes effect.

19 (2) LIMITATION.—The maximum price increase

20 that shall be required under this section for a unit

21 of a tobacco product is $2 plus an adjustment for

22 inflation under paragraph (1).

23 (i) CALCULATION OF PERCENTAGE POINTS.—For

24 purposes of determining the level of price increase under

25 this section, the number of percentage points by which a
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1 manufacturer fails to achieve a performance objective shall

2 be calculated as follows:

3 (1) MANUFACTURER WITH CHILD TOBACCO USE

4 LEVEL AT OR BELOW ITS BASELINE LEVEL.—If the

5 manufacturer is an existing manufacturer which has

6 a baseline level above the de minimis level and a

7 child tobacco use level equal to or below its baseline

8 level, the number of percentage points shall equal

9 the difference between the percentage reduction in

10 its child tobacco use level required to meet the appli11 cable performance objective and the percentage re12 duction in its child tobacco use level achieved by the

13 manufacturer.

14 (2) MANUFACTURER WITH CHILD TOBACCO USE

15 LEVEL ABOVE ITS BASELINE LEVEL.—If the manu16 facturer is an existing manufacturer which has a

17 baseline level above the de minimis level and a child

18 tobacco use level above its baseline level, the number

19 of percentage points shall equal the sum of the per20 centage reduction in its child tobacco use level re21 quired to meet the applicable performance objective

22 and the percentage by which its child tobacco use

23 level exceeds its baseline level.

24 (3) EXISTING MANUFACTURER WITH A BASE25 LINE LEVEL BELOW THE DE MINIMIS LEVEL OR
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1 NEW MANUFACTURER.—If the manufacturer is an

2 existing manufacturer which has a baseline level

3 below the de minimis level or if the manufacturer is

4 a new manufacturer, the number of percentage

5 points shall equal the percentage by which its child

6 tobacco use level exceeds the de minimis level.

7 SEC. 204. PROCEEDS OF PRICE INCREASES.

8 (a) PAYMENT.—A manufacturer that is required to

9 increase prices under section 203 shall pay into an account

10 in the United States Treasury an amount equal to the

11 amount of the increase multiplied by the number of units

12 of the product to which the increase is required to be ap13 plied under such section. Such amount shall be paid by

14 a manufacturer on a quarterly basis within 30 days after

15 the end of each quarter in which the price increase is in

16 effect.

17 (b) USE OF FUNDS.—Funds in the account referred

18 to in subsection (a) shall be available to the Secretary,

19 without fiscal year limitation, to enforce this title and

20 other laws relating to tobacco use by children and for pub21 lic awareness campaigns and other initiatives designed to

22 discourage children from using tobacco products and prod23 ucts described in section 206(b)(2).
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1 SEC. 205. JUDICIAL REVIEW.

2 (a) IN GENERAL.—An action of the Secretary under

3 this title is not subject to judicial review until the Sec4 retary has made or failed to make a compliance determina5 tion under section 203(a) that has adversely affected the

6 person seeking the review. An action for review may only

7 be brought in the United States District Court for the Dis8 trict of Columbia. In an action seeking review of such de9 termination the person seeking review—

10 (1) shall have the burden of demonstrating the

11 actual reduction of the manufacturer’s child tobacco

12 use level; and

13 (2) may prevail only to the extent that the per14 son demonstrates that such reduction is different

15 than the reduction the Secretary used in making

16 such determination.

17 (b) NO STAY.—Section 705 of title 5, United States

18 Code, shall not apply with respect to any action under sub19 section (a).

20 (c) INTEREST.—If the judgment of a court in an ac21 tion under subsection (a) results in the reduction of a pay22 ment paid by a manufacturer under section 204, the man23 ufacturer shall be paid from the account referred to in

24 such section an amount equal to the amount of such re25 duction and interest on such amount. If the judgment of

26 a court in an action under subsection (a) results in the
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1 increase in the amount to be paid by a manufacturer

2 under section 204, the manufacturer shall pay to such ac3 count an amount equal to the amount of such increase

4 and interest on such amount.

5 SEC. 206. GENERAL PROVISIONS.

6 (a) ENFORCEMENT.—Section 301 of the Federal

7 Food, Drug, and Cosmetic Act (21 U.S.C. 331) is amend8 ed by adding at the end the following:

9 ‘‘(cc) The failure to comply with a requirement under

10 section 203, 204, 205, or 206 of the Child Tobacco Use

11 Prevention Act of 2001.’’

12 (b) REGULATIONS.—

13 (1) GENERAL RULE.—The Secretary may pro14 mulgate regulations for the implementation of this

15 title.

16 (2) ADDITIONAL AUTHORITY.—For products

17 (other than cigarettes and smokeless tobacco) made

18 or derived from tobacco that are intended for human

19 consumption the Secretary may by regulation estab20 lish performance objectives under section 202 relat21 ing to the use of such products by children and may

22 require additional measures under section 203 for

23 failure to achieve the objectives.

24 (c) ADMINISTRATION OF SURVEYS.—
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1 (1) STATISTICAL ACCURACY OF SURVEYS.—The

2 annual performance surveys conducted by the Sec3 retary under section 201(a) shall be designed so that

4 if a manufacturer had a child tobacco use level that

5 is equal to 50 percent, the 95 percent confidence in6 terval would be no greater than plus or minus 1 per7 centage point.

8 (2) SURVEY CONDITIONS.—The annual per9 formance surveys shall—

10 (A) be household-based surveys; and

11 (B) not be subject to State or local regula12 tion or chapter 35 of title 44, United States

13 Code.

14 (3) CONFIDENTIALITY.—The Secretary shall

15 not disclose information that may identify a child

16 surveyed in an annual performance survey unless the

17 child (or the child’s parent or guardian) has con18 sented to such disclosure.

19 (4) TECHNICAL ADJUSTMENTS.—The Secretary

20 may make technical adjustments in the manner in

21 which annual performance surveys are conducted if

22 adjustments are made to insure that the results of

23 the surveys are comparable from year to year.
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1 SEC. 207. USE OF TOBACCO PRODUCTS AMONG MINORITY

2 POPULATIONS.

3 As part of each annual survey, the Secretary shall

4 determine the child tobacco use level for children of dif5 ferent racial and ethnic backgrounds. If the Secretary de6 termines that the child tobacco use level is increasing, or

7 is not decreasing at a proportionate rate, among children

8 of a racial or ethnic background, the Secretary shall report

9 such determination to Congress along with recommenda10 tions for reducing such level for children of such racial

11 or ethnic background.

12 SEC. 208. DEFINITIONS.

13 For purposes of this title:

14 (1) ANNUAL PERFORMANCE SURVEY.—The

15 term ‘‘annual performance survey’’ means a survey

16 conducted by the Secretary annually under section

17 201.

18 (2) CHILDREN.—The term ‘‘children’’ means

19 individuals under the age of 18 and above the age

20 of 11 who are residents of the United States.

21 (3) CHILD TOBACCO USE LEVEL.—The term

22 ‘‘child tobacco use level’’ means, with respect to a

23 manufacturer and an annual performance survey,

24 the percentage of children who use the manufactur25 er’s tobacco products as determined in an annual

26 performance survey or under section 205(a)
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1 (4) EXISTING MANUFACTURER.—The term ‘‘ex2 isting manufacturer’’ means a manufacturer which

3 manufactured or imported a tobacco product on or

4 before the date of the enactment of this Act.

5 (5) MANUFACTURER.—The term ‘‘manufac6 turer’’ means any person who manufactures or im7 ports a tobacco product.

8 (6) NEW MANUFACTURER.—The term ‘‘new

9 manufacturer’’ means any manufacturer other than

10 an existing manufacturer.

11 (7) SECRETARY.—The term ‘‘Secretary’’ means

12 the Secretary of Health and Human Services.

13 (8) TOBACCO PRODUCT.—The term ‘‘tobacco

14 product’’ means a cigarette or smokeless tobacco.

15 (9) UNIT.—The term ‘‘unit’’ means 20 ciga16 rettes in the case of cigarettes and a comparable

17 amount as determined by the Secretary in the case

18 of smokeless tobacco.

19 (10) USE.—A child shall be considered to use

20 a manufacturer’s tobacco product if the manufactur21 er’s tobacco product is the usual brand of tobacco

22 product used by the child in the last 30 days.
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1 TITLE III—SMOKE-FREE

2 ENVIRONMENTS

3 SEC. 301. SMOKE-FREE ENVIRONMENT POLICY.

4 (a) POLICY REQUIRED.—In order to protect children

5 and adults from cancer, respiratory disease, heart disease,

6 and other adverse health effects from breathing environ7 mental tobacco smoke, the responsible entity for each pub8 lic facility shall adopt and implement at such facility a

9 smoke-free environment policy which meets the require10 ments of subsection (b).

11 (b) ELEMENTS OF POLICY.—Each smoke-free envi12 ronment policy for a public facility shall—

13 (1) prohibit the smoking of cigarettes, cigars,

14 and pipes, and any other combustion of tobacco,

15 within the facility and on facility property within the

16 immediate vicinity of the entrance to the facility;

17 and

18 (2) post a clear and prominent notice of the

19 smoking prohibition in appropriate and visible loca20 tions at the public facility.

21 The policy may provide an exception to the prohibition

22 specified in paragraph (1) for one or more specially des23 ignated smoking areas within a public facility if such area

24 or areas meet the requirements of subsection (c).
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1 (c) SPECIALLY DESIGNATED SMOKING AREAS.—A

2 specially designated smoking area meets the requirements

3 of this subsection if it satisfies each of the following condi4 tions:

5 (1) The area is ventilated in accordance with

6 specifications promulgated by the Administrator that

7 insure that air from the area is directly exhausted

8 to the outside and does not recirculate or drift to

9 other areas within the public facility.

10 (2) Nonsmoking individuals do not have to

11 enter the area for any purpose while smoking is oc12 curring.

13 (3) Children are prohibited from entering the

14 area.

15 SEC. 302. CITIZEN ACTIONS.

16 (a) IN GENERAL.—An action may be brought to en17 force the requirements of this title by any aggrieved per18 son, any State or local government agency, or the Admin19 istrator.

20 (b) VENUE.—Any action to enforce this title may be

21 brought in any district court of the United States for the

22 district in which the defendant resides or is doing business

23 to enjoin any violation of this title or to impose a civil

24 penalty for any such violation in the amount of not more

25 than $5,000 per day of violation. The district courts shall
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1 have jurisdiction, without regard to the amount in con2 troversy or the citizenship of the parties, to enforce this

3 title and to impose civil penalties under this title.

4 (c) NOTICE.—An aggrieved person shall give any al5 leged violator notice of at least 60 days prior to com6 mencing an action under this section. No action may be

7 commenced by an aggrieved person under this section if

8 such alleged violator complies with the requirements of

9 this title within such 60-day period and thereafter.

10 (d) COSTS.—The court, in issuing any final order in

11 any action brought pursuant to this section, may award

12 costs of litigation (including reasonable attorney and ex13 pert witness fees) to any prevailing party, whenever the

14 court determines such award is appropriate.

15 (e) PENALTIES.—The court in any action under this

16 section to apply civil penalties shall have discretion to

17 order that such civil penalties be used for projects which

18 further the policies of this title. The court shall obtain the

19 view of the Administrator in exercising such discretion and

20 selecting any such projects.

21 (f) DAMAGES.—No damages of any kind, whether

22 compensatory or punitive, shall be awarded in actions

23 brought pursuant to this title.

24 (g) ISOLATED INCIDENTS.—Violations of the prohibi25 tion specified in section 301(b)(1) by an individual within
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1 a facility or on facility property shall not be considered

2 violations of this title on the part of the responsible entity

3 if such violations—

4 (1) are isolated incidents that are not part of

5 a pattern of violations of such prohibition; and

6 (2) are not authorized by the responsible entity.

7 SEC. 303. REGULATIONS.

8 (a) IN GENERAL.—The Administrator is authorized

9 to promulgate such regulations as the Administrator

10 deems necessary to carry out this title.

11 (b) OTHER FACILITIES.—The Administrator may by

12 regulation extend the requirement of section 301 to adopt

13 and implement a smoke-free environment policy to the fa14 cilities described in subparagraphs (B) through (E) of sec15 tion 304(2) if the Administrator determines that such an

16 action is appropriate to protect the public health.

17 SEC. 304. DEFINITIONS.

18 As used in this title:

19 (1) ADMINISTRATOR.—The term ‘‘Adminis20 trator’’ means the Administrator of the Environ21 mental Protection Agency.

22 (2) PUBLIC FACILITY.—The term ‘‘public facil23 ity’’ means any building in which activities substan24 tially affecting interstate commerce occur, including

25 any such building owned by or leased to a Federal,
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1 State, or local government entity. Such term shall

2 not include—

3 (A) any portion of a building regularly

4 used for residential purposes;

5 (B) any commercial establishment engaged

6 primarily in the sale of alcoholic beverages for

7 consumption on the premises;

8 (C) any private club while in use for social

9 or fraternal activities that are not open to the

10 public;

11 (D) any jail or other prison facility; and

12 (E) any commercial establishment pri13 marily engaged in the sale of tobacco and to14 bacco related products.

15 (3) RESPONSIBLE ENTITY.—The term ‘‘respon16 sible entity’’ means, with respect to any facility, the

17 owner of such facility, except that in the case of any

18 such facility or portion thereof which is leased, such

19 term means the lessee.

20 SEC. 305. PREEMPTION.

21 Nothing in this title shall preempt or otherwise affect

22 any other Federal, State or local law which provides pro23 tection from health hazards from environmental tobacco

24 smoke.
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1 SEC. 306. EFFECTIVE DATE.

2 The requirements of this title shall take effect on the

3 date one year after the date of the enactment of this Act.

4 TITLE IV—TOBACCO

5 PREVENTION INITIATIVES

6 SEC. 401. NATIONAL PUBLIC AWARENESS CAMPAIGN.

7 There shall be made available to the Secretary, with8 out fiscal year limitation, $500,000,000 for a national

9 public awareness campaign to discourage the use of to10 bacco products.

11 SEC. 402. FEDERAL IMPLEMENTATION.

12 There shall be made available to the Secretary, with13 out fiscal year limitation, $300,000,000 for the implemen14 tation and enforcement of—

15 (1) the provisions of the Federal Food, Drug,

16 and Cosmetic Act relating to tobacco products; and

17 (2) the requirements of title III.

18 SEC. 403. MINORITY POPULATIONS.

19 The Secretary shall ensure that the national public

20 awareness campaign funded under section 401 take into

21 account the needs of minority populations and are age ap22 propriate, culturally appropriate, and linguistically appro23 priate for such populations.

24 SEC. 406. INFLATION ADJUSTMENT.

25 Each of the amounts made available to the Secretary

26 under sections 401 and 402 shall be increased by the per-
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1 centage increase in the Consumer Price Index for all

2 urban consumers (all items, U.S. city average) from 2001

3 to the year before the year in which such amount is made

4 available.

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