141 
the Family Smoking Prevention and Tobacco Control 
Act.’’. 
SEC. 102. FINAL RULE. 
(a) CIGARETTES AND SMOKELESS TOBACCO.— 
(1) IN GENERAL.—On the first day of publica-
tion of the Federal Register that is 180 days or more 
after the date of enactment of this Act, the Secretary 
of Health and Human Services shall publish in the 
Federal Register a final rule regarding cigarettes and 
smokeless tobacco, which— 
(A) is deemed to be issued under chapter 9 
of the Federal Food, Drug, and Cosmetic Act, as 
added by section 101 of this Act; and 
(B) shall be deemed to be in compliance 
with all applicable provisions of chapter 5 of 
title 5, United States Code, and all other provi-
sions of law relating to rulemaking procedures. 
(2) CONTENTS OF RULE.—Except as provided in 
this subsection, the final rule published under para-
graph (1), shall be identical in its provisions to part 
897 of the regulations promulgated by the Secretary 
of Health and Human Services in the August 28, 
1996, issue of the Federal Register (61 Fed. Reg., 
44615–44618). Such rule shall— 
VerDate Aug 31 2005 
23:01 Jul 17, 2008
Jkt 069200
PO 00000
Frm 00141
Fmt 6652
Sfmt 6203
E:\BILLS\H1108.RH
H1108
erowe on PROD1PC71 with BILLS
142 
(A) provide for the designation of jurisdic-
tional authority that is in accordance with this 
subsection in accordance with this Act and the 
amendments made by this Act; 
(B) strike Subpart C—Labels and section 
897.32(c); 
(C) strike paragraphs (a), (b), and (i) of 
section 897.3 and insert definitions of the terms 
‘‘cigarette’’, ‘‘cigarette tobacco,’’, and ‘‘smokeless 
tobacco’’ as defined in section 900 of the Federal 
Food, Drug, and Cosmetic Act; 
(D) insert ‘‘or roll-your-own paper’’ in sec-
tion 897.34(a) after ‘‘other than cigarettes or 
smokeless tobacco’’; 
(E) become effective on the date that is 1 
year after the date of enactment of this Act; and 
(F) amend paragraph (d) of section 897.16 
to read as follows: 
‘‘(d)(1) Except as provided in subparagraph (2), no 
manufacturer, distributor, or retailer may distribute or 
cause to be distributed any free samples of cigarettes, smoke-
less tobacco, or other tobacco products (as such term is de-
fined in section 201 of the Federal Food, Drug, and Cos-
metic Act). 
VerDate Aug 31 2005 
23:01 Jul 17, 2008
Jkt 069200
PO 00000
Frm 00142
Fmt 6652
Sfmt 6203
E:\BILLS\H1108.RH
H1108
erowe on PROD1PC71 with BILLS
143 
‘‘(2)(A) Subparagraph (1) does not prohibit a manu-
facturer, distributor, or retailer from distributing or caus-
ing to be distributed free samples of smokeless tobacco in 
a qualified adult-only facility. 
‘‘(B) This subparagraph does not affect the authority 
of a State or local government to prohibit or otherwise re-
strict the distribution of free samples of smokeless tobacco. 
‘‘(C) For purposes of this paragraph, the term ‘quali-
fied adult-only facility’ means a facility or restricted area 
that— 
‘‘(i) requires each person present to provide to a 
law enforcement officer (whether on or off duty) or to 
a security guard licensed by a governmental entity 
government-issued identification showing a photo-
graph and at least the minimum age established by 
applicable law for the purchase of smokeless tobacco; 
‘‘(ii) does not sell, serve, or distribute alcohol; 
‘‘(iii) is not located adjacent to or immediately 
across from (in any direction) a space that is used 
primarily for youth-oriented marketing, promotional, 
or other activities; 
‘‘(iv) is a temporary structure constructed, des-
ignated, and operated as a distinct enclosed area for 
the purpose of distributing free samples of smokeless 
tobacco in accordance with this subparagraph; and 
VerDate Aug 31 2005 
23:01 Jul 17, 2008
Jkt 069200
PO 00000
Frm 00143
Fmt 6652
Sfmt 6203
E:\BILLS\H1108.RH
H1108
erowe on PROD1PC71 with BILLS
144 
‘‘(v) is enclosed by a barrier that— 
‘‘(I) is constructed of, or covered with, an 
opaque material (except for entrances and exits); 
‘‘(II) extends from no more than 12 inches 
above the ground or floor (which area at the bot-
tom of the barrier must be covered with material 
that restricts visibility but may allow airflow) to 
at least 8 feet above the ground or floor (or to 
the ceiling); and 
‘‘(III) prevents persons outside the qualified 
adult-only facility from seeing into the qualified 
adult-only facility, unless they make unreason-
able efforts to do so; and 
‘‘(vi) does not display on its exterior— 
‘‘(I) any tobacco product advertising; 
‘‘(II) a brand name other than in conjunc-
tion with words for an area or enclosure to iden-
tify an adult-only facility; or 
‘‘(III) any combination of words that would 
imply to a reasonable observer that the manufac-
turer, distributor, or retailer has a sponsorship 
that would violate section 897.34(c). 
‘‘(D) Distribution of samples of smokeless tobacco 
under this subparagraph permitted to be taken out of the 
qualified adult-only facility shall be limited to 1 package 
VerDate Aug 31 2005 
23:01 Jul 17, 2008
Jkt 069200
PO 00000
Frm 00144
Fmt 6652
Sfmt 6203
E:\BILLS\H1108.RH
H1108
erowe on PROD1PC71 with BILLS
145 
per adult consumer containing no more than 0.53 ounces 
(15 grams) of smokeless tobacco. If such package of smoke-
less tobacco contains individual portions of smokeless to-
bacco, the individual portions of smokeless tobacco shall not 
exceed 8 individual portions and the collective weight of 
such individual portions shall not exceed 0.53 ounces (15 
grams). Any manufacturer, distributor, or retailer who dis-
tributes or causes to be distributed free samples also shall 
take reasonable steps to ensure that the above amounts are 
limited to one such package per adult consumer per day. 
‘‘(3) Notwithstanding subparagraph (2), no manufac-
turer, distributor, or retailer may distribute or cause to be 
distributed any free samples of smokeless tobacco— 
‘‘(A) to a sports team or entertainment group; or 
‘‘(B) at any football, basketball, baseball, soccer, 
or hockey event or any other sporting or entertain-
ment event determined by the Secretary to be covered 
by this subparagraph. 
‘‘(4) The Secretary shall implement a program to en-
sure compliance with this paragraph and submit a report 
to the Congress on such compliance not later than 18 
months after the date of enactment of the Family Smoking 
Prevention and Tobacco Control Act. 
‘‘(5) Nothing in this paragraph shall be construed to 
authorize any person to distribute or cause to be distributed 
VerDate Aug 31 2005 
23:01 Jul 17, 2008
Jkt 069200
PO 00000
Frm 00145
Fmt 6652
Sfmt 6203
E:\BILLS\H1108.RH
H1108
erowe on PROD1PC71 with BILLS