I
105TH CONGRESS
1ST SESSION
H. R. 1772
To provide for the reduction in the number of children who use tobacco
products, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JUNE 3, 1997
Mr. WAXMAN (for himself, Mr. HANSEN, and Mr. MEEHAN) introduced the
following bill; which was referred to the Committee on Commerce
A BILL
To provide for the reduction in the number of children who
use tobacco products, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘NO Tobacco for Kids
Act’’.
SEC. 2. CHILD TOBACCO USE SURVEYS.
(a) ANNUAL PERFORMANCE SURVEY.—Within 1 year
after the date of the enactment of this Act and annually
thereafter the Secretary shall conduct a survey to deter-
mine the number of children who used each manufactur-
er’s tobacco products within the past 30 days.
(b) BASELINE LEVEL.—The baseline level of child to-
bacco product use of a manufacturer is the number of chil-
dren determined to have used the tobacco products of such
manufacturer in the first annual performance survey.
SEC. 3. GRADUATED PERFORMANCE STANDARDS.
(a) PERFORMANCE STANDARDS FOR EXISTING MAN-
UFACTURERS.—Each manufacturer which manufactured a
tobacco product on or before the date of the enactment
of this Act shall reduce the number of children who use
its tobacco products such that the number of children de-
termined to have used its tobacco products on the basis
of—
(1) the second annual performance survey is
equal to or less than (A) 80 percent of the manufac-
turer’s baseline level, or (B) the de minimis level,
whichever is greater;
(2) the third annual performance survey is
equal to or less than (A) 60 percent of the manufac-
turer’s baseline level, or (B) the de minimis level,
whichever is greater;
(3) the fourth annual performance survey is
equal to or less than (A) 40 percent of the manufac-
turer’s baseline level, or (B) the de minimis level,
whichever is greater;
(4) the fifth annual performance survey is equal
to or less than (A) 20 percent of the manufacturer’s
baseline level, or (B) the de minimis level, whichever
is greater; and
(5) the sixth annual performance survey and
each annual performance survey conducted there-
after is equal to or less than (A) 10 percent of the
manufacturer’s baseline level, or (B) the de minimis
level, whichever is greater.
(b) PERFORMANCE STANDARDS FOR NEW MANUFAC-
TURERS.—Any manufacturer of a tobacco product which
begins to manufacture a tobacco product after the date
of the enactment of this Act shall ensure that the number
of children determined to have used the manufacturer’s
tobacco products in each annual performance survey con-
ducted after the manufacturer begins to manufacture to-
bacco products is equal to or less than the de minimis
level.
(c) DE MINIMIS LEVEL.—The de minimis level shall
be 0.5 percent of the total number of children determined
to have used tobacco products in the first annual perform-
ance survey.
SEC. 4. NONCOMPLIANCE.
(a) FIRST VIOLATION.—If a manufacturer of a to-
bacco product violates a performance standard, the manu-
facturer shall pay a noncompliance fee of $1 for each unit
of its tobacco product which is distributed for consumer
use in the year following the year in which the perform-
ance standard is violated.
(b) FEE
INCREASE
FOR
SUBSEQUENT
VIOLA-
TIONS.—If a manufacturer violates the performance
standards in 2 or more consecutive years, the noncompli-
ance fee for such manufacturer shall be increased by $1
for each consecutive violation for each unit of its tobacco
product which is distributed for consumer use.
(c) REDUCTION
IN NONCOMPLIANCE FEE.—If a
manufacturer achieves more than 90 percent of the reduc-
tion in the number of children who use its tobacco prod-
ucts that is required under the applicable performance
standard, the noncompliance fee required to be paid by
the manufacturer shall be reduced on a pro rata basis such
that there shall be a noncompliance fee reduction of 10
percent for each percentage point over 90 percent achieved
by the manufacturer.
(d) PAYMENT.—The noncompliance fee to be paid by
a manufacturer shall be paid on a quarterly basis, with
the payments due within 30 days after the end of each
calendar quarter.
SEC. 5. USE OF NONCOMPLIANCE FEE.
(a) FUNDS FOR ENFORCEMENT AND EDUCATION.—
The first $1,000,000,000 of noncompliance fees collected
in any fiscal year shall go into a Tobacco Enforcement
and Education Fund in the United States Treasury. Fees
in such fund shall be available to the Secretary, without
fiscal year limitation, to enforce this Act and other Fed-
eral laws relating to tobacco use by children and for public
education to discourage children from using tobacco prod-
ucts.
(b) FUNDS FOR THE TREASURY.—Any amount of
noncompliance fees collected in any fiscal year which ex-
ceeds $1,000,000,000 shall be paid into the United States
Treasury.
SEC. 6. JUDICIAL REVIEW.
A manufacturer of tobacco products may seek judicial
review of any action under this Act only after a noncompli-
ance fee has been assessed and paid by the manufacturer
and only in the United States District Court for the Dis-
trict of Columbia. In an action by a manufacturer seeking
judicial review of an annual performance survey, the man-
ufacturer may prevail—
(1) only if the manufacturer shows that the re-
sults of the performance survey were arbitrary and
capricious; and
(2) only to the extent that the manufacturer
shows that it would have been required to pay a less-
er noncompliance fee if the results of the perform-
ance survey were not arbitrary and capricious.
SEC. 7. ENFORCEMENT.
Section 301 of the Federal Food, Drug, and Cosmetic
Act (28 U.S.C. 331) is amended by adding at the end the
following:
‘‘(x) The failure to pay any noncompliance fee re-
quired under the NO Tobacco for Kids Act.’’.
SEC. 8. PREEMPTION.
Nothing in this Act shall preempt or otherwise affect
any other Federal, State, or local law or regulation which
reduces the use of tobacco products by children.
SEC. 9. DEFINITIONS.
For purposes of this Act:
(1) CHILDREN.—The term ‘‘children’’ means
individuals under the age of 18.
(2) CIGARETTE.—The term ‘‘cigarette’’ has the
same meaning given such term by section 3(1) of the
Federal Cigarette Labeling and Advertising Act (15
U.S.C. 1332(1)).
(3) CIGARETTE TOBACCO.—The term ‘‘cigarette
tobacco’’ means any product that consists of loose
tobacco that contains or delivers nicotine and is in-
tended for use by consumers in a cigarette.
(4) MANUFACTURE.—The term ‘‘manufacture’’
means the manufacturing, including repacking or re-
labeling, fabrication, assembly, processing, labeling,
or importing of a tobacco product.
(5) MANUFACTURER.—The term ‘‘manufac-
turer’’ means any person who manufactures a to-
bacco product.
(6) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of Health and Human Services.
(7) SMOKELESS TOBACCO.—The term ‘‘smoke-
less tobacco’’ has the same meaning given such term
by section 9(1) of the Comprehensive Smokeless To-
bacco Education Act of 1986 (15 U.S.C. 4408(1)).
(8) TOBACCO
PRODUCT.—The term ‘‘tobacco
product’’ means a cigarette, cigarette tobacco, or
smokeless tobacco.
(9) UNIT.—The term ‘‘unit’’ when used in con-
nection with a tobacco product means 20 cigarettes
in the case of cigarettes and the smallest amount of
tobacco distributed by a manufacturer for consumer
use in the case of any other tobacco product.
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