160
the amounts made available under section 101(d)(5)(C)
for a fiscal year.
TITLE VII—LIABILITY PROTEC-
TION; CONSENT DECREES; NA-
TIONAL PROTOCOL
Subtitle A—Liability Protection
and Attorney Fees
SEC. 701. DISMISSAL OF AND LIMITATIONS ON CIVIL
CLAIMS.
(a) STATE ATTORNEY GENERAL ACTIONS.—
(1) PENDING CLAIMS.—With respect to a State,
to be eligible to receive funds under section 111, the
attorney general for such State shall resolve any civil
claim that has not already been reduced to judgment
seeking recovery for expenditures attributable to the
treatment of tobacco-related illnesses and conditions
that has been commenced by the State against a
manufacturer, distributor, or retailer of a tobacco
product and is pending on the date of enactment of
this Act.
(2) FUTURE
CLAIMS
BASED
ON
PRIOR
CON-
DUCT.—With respect to a State, to be eligible to re-
ceive funds under section 111, the attorney general
for such State shall agree that the State will not
commence any new civil claim after the date of en-
161
actment of this Act other than to enforce the terms
of a previous judgment that is based on the conduct
of a participating manufacturer, distributor or re-
tailer of a tobacco product that occurred prior to the
date of enactment of this Act seeking recovery for
expenditures attributable to the treatment of tobacco
induced illnesses and conditions against such a man-
ufacturer, distributor or retailer.
(3) APPLICATION
TO
LOCAL
GOVERNMENTAL
ENTITIES.—The requirements described in para-
graphs (1) and (2) shall apply to civil claims com-
menced by or on behalf of local governmental enti-
ties for the recovery of costs attributable to tobacco-
related illnesses if such localities are within a State
whose attorney general has elected to resolve claims
under paragraph (1) and enter into the agreement
described in paragraph (2). Such provisions shall not
apply to those local governmental entities that are
within a State whose attorney general has not re-
solved such claims or entered into such agreements.
(b) STATE AND LOCAL OPTION FOR ONE-TIME OPT
OUT.—
(1) IN GENERAL.—The Secretary shall establish
procedures under which the attorney general of a
State may, not later than 1 year after the date of
162
enactment of this Act, elect not to resolve a claim
described in subsection (a)(1) or not enter into an
agreement under subsection (a)(2). A State whose
attorney general makes such an election shall not be
eligible to receive payments from the Trust Fund
under paragraphs (1), (2), and (3) of section 101(d)
and section 111. Procedures under this paragraph
shall permit such a State to make such an election
on a one-time basis.
(2) EXTENSION.—In the case of a State that
has secured a judgment against a manufacturer, dis-
tributor or retailer of a tobacco product in a claim
described in subsection (a)(1) prior to or during the
period described in paragraph (1), and such judg-
ment has been appealed by such manufacturer, dis-
tributor, or retailer, such period shall be extended
during the pendency of the appeal and for an addi-
tional period as determined appropriate by the Sec-
retary.
(3) APPLICATION
TO
CERTAIN
STATES.—A
State that has resolved a claim described in sub-
section (a)(1) with a manufacturer, distributor or re-
tailer of a tobacco product prior to the date of en-
actment of this Act may not make an election de-
scribed in paragraph (1) if, as part of the resolution
163
of such claim, the State agreed that the enactment
of any national tobacco settlement legislation would
supersede the provisions of the resolution.
(4) LOCAL
GOVERNMENTAL
ENTITY
OPTION
FOR ONE-TIME OPT OUT.—
(A) IN GENERAL.—The Secretary shall es-
tablish procedures under which the attorney for
a local governmental entity which commenced a
civil claim prior to June 20, 1997 against a
manufacturer, distributor, or retailer of a to-
bacco product seeking recovery for expenditures
attributable to the treatment of tobacco related
illnesses and conditions, not later than 1 year
after the date of enactment of this Act, may
elect not to resolve any claim described in sub-
section (a)(3). A local governmental entity
whose attorney makes such an election shall not
be eligible to receive payments from the Trust
Fund under paragraphs (1), (2), and (3) of sec-
tion 101(d) and section 111. Procedures under
this paragraph shall permit such a local govern-
mental entity to make such an election on a
one-time basis.
(B) EXTENSION.—In the case of a local
governmental entity that has secured a judg-
164
ment against a manufacturer, distributor, or re-
tailer of a tobacco product in a claim described
in subsection (a)(3) prior to or during the pe-
riod described in subparagraph (A), and such
judgment has been appealed by such manufac-
turer, distributor, or retailer, such period shall
be extended during the pendency of the appeal
and for an additional period as determined ap-
propriate by the Secretary.
(C) APPLICATION TO CERTAIN LOCAL GOV-
ERNMENTAL ENTITIES.—A local governmental
entity that has resolved a claim described in
subsection (a)(3) with a manufacturer, distribu-
tor, or retailer of a tobacco product prior to the
date of enactment of this Act may not make an
election described in subparagraph (A) if, as
part of the resolution of such claim, the local
governmental entity agreed that the enactment
of any national tobacco settlement legislation
would supersede the provisions of the resolu-
tion.
(c) FEDERAL CLAIMS.—The Federal Government is
barred from commencing a civil claim against a participat-
ing manufacturer, distributor, or retailer of a tobacco
product seeking recovery for expenditures attributable to
165
the treatment of tobacco-related illnesses associated with
the conduct of a manufacturer that occurred prior to the
date of enactment of this Act.
(d) RULES OF CONSTRUCTION.—
(1) POST
ENACTMENT
CLAIMS.—Nothing in
this title shall be construed to limit the ability of a
government, entity, or person to commence an action
against a participating manufacturer, distributor or
retailer of a tobacco product with respect to a claim
that is based on the conduct of such manufacturer,
distributor or retailer that occurred after the date of
enactment of this Act.
(2) NO LIMITATION ON PERSONS.—Nothing in
this title shall be construed to limit the right of a
person to commence any civil claim for past, present,
or future conduct by manufacturers, distributors or
retailers of tobacco products.
(3) CRIMINAL PROSECUTION.—Nothing in this
title shall be construed to limit the criminal prosecu-
tion of tobacco manufacturers, retailers, or distribu-
tors or their officers, directors, employees, succes-
sors, or assigns.
(e) DEFINITION.—As used in this section, the term
‘‘participating manufacturer’’ means a manufacturer of
tobacco products that has entered into a consent decree
166
under section 711 and that is a signatory to the Protocol
under section 721.
SEC. 702. ATTORNEY’S FEES AND EXPENSES.
(a) SOURCE
AND PAYMENT
OF AWARDS.—In no
event shall any award of the Arbitration Panel established
under subsection (b) be paid from, credited against, or
otherwise affect in any way fee payments that are required
to be made by any participating manufacturer under sec-
tion 102 or under any other provision of this Act. Any
such award shall be paid by the participating manufactur-
ers that are signators to the June 1997 proposed resolu-
tion with certain State attorneys general pursuant to an
allocation agreement among such manufacturers.
(b) ARBITRATION PANEL.—
(1) ESTABLISHMENT.—For the purpose of
awarding of attorneys’ fees and expenses relating to
litigation affected by, or legal services that resulted
in whole or in part in, or created a model for pro-
grams in, this Act, there is established an Arbitra-
tion Panel which shall consist of—
(A) 4 members to be appointed by the At-
torney General in consultation with the Trust-
ees;
(B) 1 member to be appointed by the man-
ufacturers;
167
(C) 1 member to be appointed by the At-
torneys General of the States; and
(D) 1 member to be appointed by the pri-
vate attorneys.
(2) OPERATION.—
(A) ESTABLISHMENT.—The members of
the Arbitration Panel shall be appointed not
later than 30 days after the effective date of
this Act.
(B) PROCEDURES.—Not later than 30
days after the date on which all members of the
Arbitration Panel are appointed under para-
graph (1), the Panel shall establish the proce-
dures under which the Panel will operate which
shall include—
(i) a requirement that any finding by
the Arbitration Panel must be in writing
and supported by written reasons;
(ii) procedures for the exchanging of
exhibits and witness lists by the various
claimants for awards;
(iii) to the maximum extent prac-
ticable, requirements that proceedings be-
fore the Panel be based on affidavits rath-
er than live testimony; and
168
(iv) a requirement that all claims be
submitted to the Arbitration Panel not
later than 3 months after the effective date
of this Act and a determination made by
the Panel with respect to such claims not
later than 7 months after such date of en-
actment.
(3) RIGHT TO PETITION.—Any individual attor-
ney or group of attorneys involved in litigation af-
fected by this Act shall have the right to petition the
Arbitration Panel for attorneys’ fees and expenses.
(4) CRITERIA.—In making any award pursuant
to this section, the Arbitration Panel shall consider
the following criteria:
(A) The time and labor required by the
claimant.
(B) The novelty and difficulty of the ques-
tions involved in the action for which the claim-
ant is making a claim.
(C) The skill requisite to perform the legal
service involved properly.
(D) The preclusion of other employment by
the attorney due to acceptance of the action in-
volved.
169
(E) Whether the fee is fixed or a percent-
age.
(F) Time limitations imposed by the client
or the circumstances.
(G) The amount involved and the results
obtained.
(H) The experience, reputation, and ability
of the attorneys involved.
(I) The undesirability of the action.
(J) Such other factors as justice may re-
quire.
(5) APPEAL AND ENFORCEMENT.—The findings
of the Arbitration Panel shall be final, binding, non-
appealable, and payable within 30 days after the
date on which the finding is made public, except that
if an award is to be paid in installments, the first
installment shall be payable within such 30 day pe-
riod and succeeding installments shall be paid annu-
ally thereafter.
(6) SENSE OF THE HOUSE.—It is the sense of
the House of Representatives that the legal services
rendered by attorneys in the various class actions
filed by the Castano Plaintiffs Legal Committee
against certain tobacco manufacturers provided pub-
lic benefits, including many of the specific public
170
health programs in the proposed resolution date
June 20, 1997, upon which the programs in title IV
of this Act are in part modeled. It is further the
sense of the House of Representatives that such pro-
grams do not constitute an exclusive remedy for
claims based on addiction or dependence on tobacco
products and that such programs do not operate to
preclude or otherwise limit any litigation premised
on, or otherwise depending on, addiction to or de-
pendence on tobacco products and do not in any way
affect the interpretation of section 701(d) of this Act
(c) VALIDITY
AND ENFORCEABILITY
OF PRIVATE
AGREEMENTS.—Notwithstanding any other provision of
this Act, nothing in this section shall be construed to abro-
gate or restrict in any way the rights of any parties to
mediate, negotiate, or settle any fee or expense disputes
or issues to which this section applies, or to enter into
private agreements with respect to the allocation or divi-
sion of fees among the attorneys party to any such agree-
ment.
Subtitle B—Consent Decrees
SEC. 711. CONSENT DECREES.
(a) REQUIREMENT.—
(1) IN GENERAL.—Except as provided in para-
graph (2), to be eligible to receive payments under
171
section 111, a State, and to be eligible to receive li-
ability protections under subtitle A, a tobacco manu-
facturer shall enter into consent decrees under this
section to be effective on the date of enactment of
this Act.
(2) GOOD FAITH EFFORTS.—The limitation de-
scribed in paragraph (1) with respect to payments
under section 111 shall not apply to a State if the
attorney general of the State certifies to the Sec-
retary that—
(A) the State has made good faith efforts
to enter into a consent decree in accordance
with this subtitle; and
(B) such State is willing to be bound by
such decree but such decree does not exist be-
cause—
(i) of the refusal on the part of a to-
bacco manufacturer to enter into such de-
cree; or
(ii) the appropriate court has not en-
tered the decree even though the parties
have lodged such a decree with the court.
(b) TERMS AND CONDITIONS.—
(1) IN
GENERAL.—The consent decrees de-
scribed in subsection (a) shall resolve the State ac-
172
tion (or potential action in the case of a manufac-
turer that was not a defendant in a State action but
that desires to become a participating manufacturer
or in the case of a State that does not have a suit
pending against a manufacturer) for claims associ-
ated with the conduct of the manufacturer that oc-
curred prior to the date of enactment of this Act.
(2) GENERAL TERMS AND CONDITIONS.—The
terms and conditions contained in the consent de-
crees described in subsection (a) shall contain the
following provisions relating to—
(A) restrictions on tobacco product adver-
tising and marketing and youth access to such
products;
(B) the termination, establishment, and
operation of trade associations;
(C) the disclosure of tobacco smoke con-
stituents;
(D) the disclosure of nontobacco constitu-
ents and ingredients found in tobacco products;
(E) the disclosure of existing and future
documents relating to health, toxicity, and ad-
diction related to tobacco product usage;
173
(F) the obligation of manufacturers to
make payments for the benefit of States, pri-
vate litigants and the general public;
(G) the obligation of manufacturers to
enter into the Protocol under subtitle C;
(I) the obligation of manufacturers to
interact only with distributors and retailers that
operate in compliance with the applicable provi-
sions of Federal, State, or local law regarding
the marketing and sale of tobacco products;
(J) requirements for warnings, labeling,
and packaging of tobacco products;
(K) the resolution of pending litigation (or
potential future litigation for misconduct that
occurred prior to the date of enactment of this
Act) as required under subtitle A and as agreed
to by the parties to the decree; and
(L) any other matter determined appro-
priate by the Secretary or the parties involved.
(3) LIMITATIONS.—The terms and conditions
contained in the consent decrees described in sub-
section (a) shall not contain provisions relating to—
(A) tobacco product design, performance,
or modification;
174
(B) manufacturing standards and good
manufacturing practices;
(C) testing and regulation with respect to
toxicity and ingredients approval; and
(D) the tobacco usage reduction require-
ment described in section 303.
(4) ENFORCEABILITY.—The terms and condi-
tions contained in the consent decrees described in
subsection (a) shall be enforceable by the signato-
ries, as well as the Attorney General, and shall in-
clude a provision that prohibits signatories from
challenging the enforceability of the consent decrees.
(5) CONSTRUCTION.—The terms and conditions
contained in the consent decrees described in sub-
section (a) shall provide that the terms of the decree
will be construed in a manner that is consistent with
the provision of this Act.
(c) APPROVAL.—
(1) IN GENERAL.—Prior to the entry of a con-
sent decree by a court under this section the court
must find that the provisions of the consent de-
cree—
(A) have been approved by the Secretary
and the Attorney General;
(B) are fair and reasonable; and
175
(C) are in the public interest.
(2) DETERMINATION BY SECRETARY.—To ap-
prove a consent decree under paragraph (1)(A), the
Secretary and the Attorney General shall have deter-
mined whether the provisions of the decree are con-
sistent with this Act and the Food, Drug and Cos-
metic Act or the rules and regulations promulgated
under such Acts.
(3) NOTICE TO PUBLIC.—With respect to the
approval of a consent decree under this section, the
court shall ensure that the public has been given not
less than 60 days notice of the filing of the decree
by the parties and any objections thereto must be
addressed to the satisfaction of the court.
(d) ENFORCEMENT.—The provisions of a consent de-
cree entered under this section shall remain in effect and
enforceable in the court in which the decree is entered,
even if the underlying action is dismissed.
SEC. 712. NON-PARTICIPATING MANUFACTURERS.
With respect to a manufacturer that elects not to
enter into a consent decree under section 711, such manu-
facturer shall not be eligible to receive the liability protec-
tions under section 701.
176
Subtitle C—National Tobacco
Control Protocol
CHAPTER 1—ESTABLISHMENT
SEC. 721. NATIONAL TOBACCO CONTROL PROTOCOL.
(a) REQUIREMENT.—To be eligible to receive the li-
ability protections provided for in subtitle A, each tobacco
manufacturer to which this Act applies shall, not later
than 90 days after the date of enactment of this Act, enter
into a National Tobacco Control Protocol with the Attor-
ney General of the United States and the attorney general
of each State that does not elect to opt out under section
701(b)(1).
(b) TERMS AND CONDITIONS.—The Protocol referred
to in subsection (a) shall be—
(1) developed by the Attorney General, in con-
sultation with the Secretary, the State attorneys’
general, the Federal Trade Commission and other
individuals determined appropriate by the Attorney
General, as a binding and enforceable contract that
embodies the terms of this subtitle; and
(2) designed to be enforceable in Federal or
State courts as provided for in this subtitle.
(c) CONTRACTS.—As part of the Protocol under this
section, a manufacturer shall agree, with respect to any
contract entered into by the manufacturer with an entity
177
that is a distributor or retailer of tobacco products, to in-
clude in such contract as a term and condition a require-
ment that such distributor or retailer comply with the pro-
visions of the Protocol.
CHAPTER 2—TERMS AND CONDITIONS
SEC. 725. APPLICATION OF CHAPTER.
The provisions of this chapter shall be considered as
part of the Protocol.
SEC. 726. AGREEMENT TO PROHIBIT CERTAIN ADVERTIS-
ING.
(a) PROHIBITION ON OUTDOOR ADVERTISING.—
(1) IN GENERAL.—No manufacturer, distribu-
tor, or retailer may use any form of outdoor tobacco
product advertising, including billboards, posters, or
placards.
(2) STADIA AND ARENAS.—Except as otherwise
provided in this Act, a manufacturer, distributor, or
retailer shall not advertise tobacco products in any
arena or stadium where athletic, musical, artistic or
other social or cultural events or activities occur.
(b) PROHIBITION ON USE OF HUMAN IMAGES AND
CARTOONS.—No manufacturer, distributor, or retailer
may use a human image or a cartoon character or cartoon-
type character in its advertising, labeling or promotional
material with respect to a tobacco product.
178
(c) PROHIBITION ON ADVERTISING ON THE INTER-
NET.—No manufacturer, distributor, or retailer may use
the Internet to advertise tobacco products unless such an
advertisement is inaccessible in or from the United States.
(d) PROHIBITION ON POINT OF SALE ADVERTIS-
ING.—
(1) IN
GENERAL.—Except as otherwise pro-
vided in this subsection, no manufacturer, distribu-
tor, or retailer may use point of sale advertising of
tobacco products.
(2) ADULT ONLY STORES AND TOBACCO OUT-
LETS.—Paragraph (1) shall not apply to point of
sale advertising at adult only stores and tobacco out-
lets.
(3) PERMISSIBLE ADVERTISING.—
(A) IN GENERAL.—Each manufacturer of
tobacco products may display not more than 2
separate point of sale advertisements in or at
each location at which tobacco products are of-
fered for sale.
(B) RETAILERS.—No manufacturer, dis-
tributor, or retailer may enter into any arrange-
ment with a retailer to limit the ability of the
retailer to display any form of permissible point
of sale advertisement or promotional material
179
originating with another manufacturer, dis-
tributor, or retailer.
(4) LIMITATIONS.—
(A) IN GENERAL.—A point of sale adver-
tisement permitted under this subsection shall
be comprised of a display area that is not larger
than 576 square inches (either individually or
in the aggregate) and shall consist only of black
letters on a white background or other recog-
nized typographical marks. Such advertisement
shall not be attached to nor located within 2
feet of any fixture on which candy is displayed
for sale.
(B) AUDIO AND VIDEO FORMATS.—Audio
and video advertisements otherwise permitted
under this Act may be distributed to individuals
who are 18 years of age or older at point of sale
but may not be played or viewed at such point
of sale.
(C) DISPLAY FIXTURES.—Display fixtures
in the form of signs consisting of brand name
and price and not larger than 2 inches in height
are permitted.
(5) DEFINITION.—For purposes of this sub-
section, the term ‘‘point of sale advertising’’ means
180
all printed or graphical materials bearing the brand
name (alone or in conjunction with any other word),
logo, motto, selling message, recognizable color or
pattern of colors, or any other indicia of product
identification similar or identical to those used for
tobacco products, which, when used for its intended
purpose, can reasonably be anticipated to be seen by
customers at a location at which tobacco products
are offered for sale.
SEC. 727. CONSENSUAL RESTRICTIONS.
(a) RESTRICTION ON PRODUCT NAMES.—A manu-
facturer shall not use a trade or brand name of a non-
tobacco product as the trade or brand name for a cigarette
or smokeless tobacco product, except for a tobacco product
whose trade or brand name was on both a tobacco product
and a nontobacco product that were sold in the United
States on January 1, 1998.
(b) ADVERTISING LIMIT ACTIONS.—
(1) IN GENERAL.—A manufacturer, distributor,
or retailer may in accordance with this Act, dissemi-
nate or cause to be disseminated advertising or la-
beling which bears a tobacco product brand name
(alone or in conjunction with any other word) or any
other indicia of tobacco product identification only in
newspapers, in magazines, in periodicals or other
181
publications (whether periodic or limited distribu-
tion), on billboards, posters and placards in accord-
ance with section 726(a), in nonpoint of sale pro-
motional material (including direct mail), in point-
of-sale promotional material, and in audio or video
formats delivered at a point-of-sale.
(2) LIMITATION.—A manufacturer, distributor,
or retailer that intends to disseminate, or to cause
to be disseminated, advertising or labeling for a to-
bacco product in a medium that is not described in
paragraph (1) shall notify the Secretary not less
than 30 days prior to the date on which such me-
dium is to be used. Such notice shall describe the
medium and discuss the extent to which the adver-
tising or labeling may be seen by individuals who are
under 18 years of age.
(3) ACTION BY SECRETARY.—Not later than 30
days after the date on which the Secretary receives
a notice under paragraph (2), the Secretary shall
make a determination with respect to the action to
be taken concerning such notice.
(c) RESTRICTION ON PLACEMENT IN ENTERTAIN-
MENT MEDIA.—
(1) IN GENERAL.—No payment shall be made
by any manufacturer, distributor, or retailer for the
182
placement of any tobacco product or tobacco product
package or advertisement—
(A) as a prop in any television program or
motion picture produced for viewing by the gen-
eral public; or
(B) in a video or on a video game machine.
(2) VIDEO
GAME.—The term ‘‘video game’’
means any electronic amusement device that utilizes
a computer, microprocessor, or similar electronic cir-
cuitry and its own cathode ray tube, or is designed
to be used with a television set or a monitor, that
interacts with the user of the device.
(3) VIDEO.—The term ‘‘video’’ means an audio-
visual work produced for viewing by the general pub-
lic, such as a television program, a motion picture,
a music video, and the audiovisual display of a video
game.
(d) RESTRICTIONS ON GLAMORIZATION OF TOBACCO
PRODUCTS.—No direct or indirect payment shall be made,
or consideration given, by any manufacturer, distributor,
or retailer to any entity for the purpose of promoting the
image or use of a tobacco product through print, film or
broadcast media that appeals to individuals under 18
years of age or through a live performance by an enter-
tainment artist that appeals to such individuals.
183
SEC. 728. AGREEMENT ON FORMAT AND CONTENT RE-
QUIREMENTS FOR LABELING AND ADVERTIS-
ING.
(a) IN GENERAL.—Except as provided in subsections
(b) and (c), each manufacturer, distributor, or retailer ad-
vertising or causing to be advertised, disseminating or
causing to be disseminated, any labeling or advertising for
a tobacco product shall use only black text on a white
background.
(b) CERTAIN ADVERTISING EXCEPTED.—
(1) IN
GENERAL.—Subsection (a) shall not
apply to advertising—
(A) in any facility where vending machines
and self-service displays are permitted under
this title if the advertising involved—
(i) is not visible from outside of the
facility; and
(ii) is affixed to a wall or fixture in
the facility;
(B) that appears in any publication
(whether periodic or limited distribution) that is
an adult publication.
(2) ADULT
PUBLICATION.—For purposes of
paragraph (1)(B), the term ‘‘adult publication’’
means a newspaper, magazine, periodical, or other
publication—
184
(A) whose readers under 18 years of age
constitute 15 percent or less of the total reader-
ship as measured by competent and reliable
survey evidence; and
(B) that is read by fewer than 2,000,000
individuals who are under 18 years of age as
measured by competent and reliable survey evi-
dence.
(c) AUDIO
OR VIDEO FORMATS.—Each manufac-
turer, distributor or retailer advertising or causing to be
advertised any advertising for a tobacco product in an
audio or video format shall comply with the following:
(1) With respect to an audio format, the adver-
tising shall be limited to words only with no music
or sound effects.
(2) With respect to a video format, the advertis-
ing shall be limited to static black text only on a
white background. Any audio with the video adver-
tising shall be limited to words only with no music
or sound effects.
SEC. 729. AGREEMENT TO BAN ON NONTOBACCO ITEMS
AND SERVICES, CONTESTS AND GAMES OF
CHANCE, AND SPONSORSHIP OF EVENTS.
(a) BAN ON ALL NON-TOBACCO MERCHANDISE.—No
manufacturer, importer, distributor, or retailer shall mar-
185
ket, license, distribute, sell or cause to be marketed, li-
censed, distributed or sold any item (other than tobacco
products) or service, which bears the brand name (alone
or in conjunction with any other word), logo, symbol,
motto, selling message, recognizable color or pattern of
colors, or any other indicia of product identification simi-
lar or identifiable to those used for any brand of tobacco
products.
(b) GIFTS, CONTESTS, AND LOTTERIES.—No manu-
facturer, distributor, or retailer shall offer or cause to be
offered to any person purchasing tobacco products any gift
or item (other than a tobacco product) in consideration
of the purchase of such products, or to any person in con-
sideration of furnishing evidence, such as credits, proofs-
of-purchase, or coupons, of such a purchase.
(c) SPONSORSHIP.—
(1) IN GENERAL.—No manufacturer, distribu-
tor, or retailer shall sponsor or cause to be spon-
sored any athletic, musical, artistic or other social or
cultural event, or any entry or team in any event, in
which the brand name (alone or in conjunction with
any other word), logo, motto, selling message, rec-
ognizable color or pattern of colors, or any other in-
dicia of product identification similar or identical to
those used for tobacco products is used.
186
(2) USE OF CORPORATE NAME.—A manufac-
turer, distributor, or retailer may sponsor or cause
to be sponsored any athletic, musical, artistic or
other social or cultural event in the name of the cor-
poration which manufactures the tobacco product
if—
(A) both the corporate name and the cor-
poration were registered and in use in the
United States prior to January 1, 1995; and
(B) the corporate name does not include
any brand name (alone or in conjunction with
any other word), logo, symbol, motto, selling
message, recognizable color or pattern of colors,
or any other indicia or product identification
identical or similar to, or identifiable with,
those used for any brand of tobacco products.
CHAPTER 3—ENFORCEMENT
SEC. 731. FEDERAL ENFORCEMENT OF THE PROTOCOL.
(a) ACTIONS.—The Attorney General may bring an
action for the enforcement, or to restrain any breach, of
the Protocol in the United States District Court for the
District of Columbia or in the district court of the United
States for the district in which the breach occurred.
(b) REMEDY.—In any action under subsection (a),
the district court involved—
187
(1) shall restrain the conduct that is the subject
of the breach of the Protocol;
(2) shall order specific performance of the obli-
gations set forth in the Protocol;
(3) may order civil penalties against any manu-
facturer who violates a requirement of the Protocol
in an amount not more than $250,000 per violation
per day; and
(4) with respect to officers of manufacturers
who knowingly violate the protocol, may impose ap-
propriate criminal penalties, including incarceration.
(c) CONTRACTS WITH STATE AGENCIES.—The Sec-
retary may award grants to or enter into contracts with
an agency of any State to assist in the enforcement of
the provisions of the Protocol.
(d) ACTION BY ATTORNEY GENERAL.—With respect
to the funding of any activities under subsection (a), the
Attorney General shall use amounts available in the Trust
Fund under section 102. If the Attorney General deter-
mines that amounts available in the Trust Fund are insuf-
ficient, the Attorney General may use amounts available
for the activities of the Department of Justice.
SEC. 732. STATE ENFORCEMENT OF THE PROTOCOL.
(a) CIVIL ACTION.—The attorney general of a State
may bring an action for the enforcement, or to restrain
188
a breach, of the Protocol if the alleged violation that is
the subject of the proceedings occurred in that State.
(b) CONCURRENT JURISDICTION.—Both Federal and
State courts shall have jurisdiction over a proceeding de-
scribed in subsection (a). If such a proceeding is com-
menced in a district court of the United States, the court
shall take into consideration the size and scope of any
State penalties that have been applied for the identical vio-
lations.
(c) REMEDIES.—In any proceeding described in sub-
section (b) the remedies available shall be those described
in section 731(b).
SEC. 733. PRIVATE ENFORCEMENT OF PROTOCOL.
(a) IN GENERAL.—A manufacturer may seek a dec-
laration of the rights and obligations of the manufacturer
under the Protocol by filing an action pursuant to section
2201 of title 28, United States Code.
(b) CIVIL ACTION.—Any person may bring a civil ac-
tion against a manufacturer to enforce, or restrain
breaches of, the Protocol by such manufacturer, except
that—
(1) no such action may be commenced or main-
tained if the Secretary has settled a proceeding per-
taining to such alleged breach; and
189
(2) the court, in any such action, shall restrain
conduct in breach of the Protocol and order specific
performance of the obligations set forth in the Pro-
tocol, and may award damages which at a minimum
will recover any economic benefit derived as a result
of the noncompliance involved together with an
amount awarded as a suitable penalty associated
with such breach.
Any damages awarded under this subsection shall be re-
mitted to the Treasury.
(c) RIGHT OF INTERVENTION.—In any proceeding
described in section 731(a) or 732(a), any manufacturer
may intervene as a matter of right.
TITLE VIII—MISCELLANEOUS
PROVISIONS
SEC. 801. PROHIBITION ON USE OF FUNDS TO FACILITATE
THE EXPORTATION OR PROMOTION OF TO-
BACCO.
(a) IN GENERAL.—Notwithstanding any other provi-
sion of law, no funds made available by appropriations or
otherwise made available may be used by any officer, em-
ployee, department, or agency of the United States—
(1) to promote or encourage the export, reex-
port, sale, manufacture, advertising, promotion, dis-
190
tribution, or use of tobacco or tobacco products to
or in a foreign country; or
(2) to seek, through negotiation or otherwise,
the removal or reduction by any foreign country of
any restriction or proposed restriction in that coun-
try on the importation, export, reexport, sale, manu-
facture, advertising, promotion, distribution, packag-
ing, labeling, use, content, imposition of tariffs, or
taxation, of tobacco or tobacco products.
(b) EXCEPTION.—Subsection (a)(2) shall not apply
to any restriction or proposed restriction by a foreign
country if—
(1) the restriction is applied in a manner which
constitutes a means of arbitrary or unjustifiable dis-
crimination between countries;
(2) the Secretary of Commerce certifies in writ-
ing to Congress that the restriction is being applied
in a manner that constitutes a means of arbitrary or
unjustifiable discrimination between countries; and
(3) the Secretary of Health and Human Serv-
ices certifies to Congress in writing that the restric-
tion is not a reasonable means of protecting the pub-
lic health.
191
(c) DEFINITION.—In this section, the term ‘‘arbi-
trary or unjustifiable discrimination’’ means a restriction
or proposed restriction by a foreign country that—
(1) is arbitrary or unjustifiable; and
(2) does not adhere to the principle of national
treatment and applies less favorable treatment to
goods that are imported into that country than the
country applies to like goods that are the product,
growth, or manufacture of that country.
SEC. 802. WHISTLEBLOWER PROTECTIONS.
(a) PROHIBITION OF REPRISALS.—An employee of
any manufacturer, distributor, or retailer of a tobacco
product may not be discharged, demoted, or otherwise dis-
criminated against (with respect to compensation, terms,
conditions, or privileges of employment) as a reprisal for
disclosing to an employee of the Food and Drug Adminis-
tration, the Department of Health and Human Services,
the Department of Justice, the Congress, or any State or
local regulatory or enforcement authority, information re-
lating to a violation of law related to this Act or a State
or local law that furthers the purposes of this Act.
(b) ENFORCEMENT.—Any employee or former em-
ployee who believes that such employee has been dis-
charged, demoted, or otherwise discriminated against in
violation of subsection (a) may file a civil action in the
192
appropriate United States district court before the end of
the 2-year period beginning on the date of such discharge,
demotion, or discrimination.
(c) REMEDIES.—If the district court determines that
a violation has occurred, the court may order the manufac-
turer, distributor, or retailer involved to—
(1) reinstate the employee to the employee’s
former position;
(2) pay compensatory damages; or
(3) take other appropriate actions to remedy
any past discrimination.
(d) LIMITATION.—The protections of this section
shall not apply to any employee who—
(1) deliberately causes or participates in the al-
leged violation of law or regulation; or
(2) knowingly or recklessly provides substan-
tially false information to the Food and Drug Ad-
ministration, the Department of Health and Human
Services, the Department of Justice, or any State or
local regulatory or enforcement authority.
(e) APPLICATION OF FALSE CLAIMS ACT.—Section
3730(d) of title 31, United States Code, shall apply with
respect to any employee to which this section applies if
the disclosure of such employee results in a payment of
any fee or fine to the Federal Government by the manu-
193
facturer, distributor or retailer involved, regardless of
whether such employee ever commenced an action con-
cerning the disclosure.
SEC. 803. PROHIBITIONS RELATING TO TOBACCO PROD-
UCTS AND CHILDREN.
(a) IN GENERAL.—Chapter VIII of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 381 et seq.)
is amended by adding at the end the following:
‘‘SEC. 804. PROHIBITION ON SALE OR DISTRIBUTION OF TO-
BACCO PRODUCTS TO CHILDREN.
‘‘(a) GENERAL RULE.—It shall be unlawful for any
domestic concern or any officer, director, employee, or
agent of such concern to make use of the mails or any
means or instrumentality of interstate commerce to cause
or contribute, either directly or through a foreign subsidi-
ary, joint venture, affiliate, or licensee, to—
‘‘(1) the sale or distribution of tobacco products
in a foreign country to children; or
‘‘(2) the advertising or promotion of tobacco
products in a foreign country in a manner that ap-
peals to children.
‘‘(b) INTERPRETATION.—For purposes of subsection
(a), the advertising or promotion of tobacco products shall
be considered to be in a manner that appeals to children
if the advertising or promotion is carried out in a manner
194
that would not be permissible under the regulations re-
ferred to in section 202 of the Healthy Kids Act if it oc-
curred in the United States.
‘‘SEC. 805. LABELING.
‘‘It shall be unlawful for any domestic concern or any
officer, director, employee, or agent of such concern, either
directly or through a foreign subsidiary, joint venture, af-
filiate, or licensee, to make use of the mails or any means
or instrumentality of interstate commerce to cause or con-
tribute to the export from the United States or the sale
or distribution in, or export from, any other country any
tobacco product the package of which does not contain a
warning label that—
‘‘(1) is in the primary language or languages of
the country in which the tobacco product is sold or
distributed to consumers; and
‘‘(2) except for the requirement of paragraph
(1)—
‘‘(A) complies with Federal requirements
for labeling of similar tobacco products manu-
factured, imported, or packaged for sale or dis-
tribution in the United States; or
‘‘(B) complies with the labeling require-
ments of the foreign country in which the prod-
uct is sold or distributed to consumers and
195
which labeling requirements the Secretary de-
termines are substantially similar to Federal re-
quirements and are adequately enforced by such
country.’’.
(b) ENFORCEMENT.—Section 301 of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 331) as amend-
ed by section 203(e), is further amended by adding at the
end the following:
‘‘(cc) To carry out an act made unlawful by section
804 or 805.
(c) REWARD.—Section 303(b)(5) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 333)(b)(5)) is
amended by adding at the end the following: ‘‘If a person
provides information leading to the institution of a crimi-
nal proceeding against, and conviction of, a person for a
violation of section 301(cc), such person shall be entitled
to one-half of the criminal fine imposed and collected for
such violation but not more than $125,000.’’.
(d) DEFINITIONS.—Section 201 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321) as amended by
section 203(a)(3), is further amended by adding at the
end the following:
‘‘(ll) The term ‘domestic concern’ means—
‘‘(1) any individual who is a citizen, national, or
resident of the United States; and
196
‘‘(2) any corporation, partnership, association,
joint-stock company, business trust, unincorporated
organization, or sole proprietorship which has its
principal place of business in the United States or
which is organized under the laws of a State of the
United States or a territory, possession, or common-
wealth of the United States.
‘‘(mm) The term ‘children’ means an individual under
the age of 18.’’.
SEC. 804. PRESERVATION OF STATE AND LOCAL AUTHOR-
ITY.
Except as otherwise provided for in this Act (or an
amendment made by this Act), nothing in this Act shall
be construed as prohibiting a State or political subdivision
of a State from imposing requirements, prohibitions, pen-
alties or other measures, whether by statute, rule, regula-
tion, ordinance, judicial decree, consent decree, or settle-
ment agreement, to further the purposes of this Act that
are in addition to the requirements, prohibitions, or pen-
alties required under this Act. Nothing in this Act (or an
amendment made by this Act) shall preclude or deny the
right of any State or political subdivision of a State to
adopt or enforce any requirements, prohibitions, or pen-
alties relating to tobacco products to the extent that such
197
requirements, prohibitions or penalties are not less strin-
gent than those required under this Act (or amendments).
SEC. 805. SEVERABILITY.
If any provision of this Act, an amendment made by
this Act, or the application of such provision or amend-
ment to any person or circumstance is held to be unconsti-
tutional, the remainder of this Act, the amendments made
by this Act, and the application of the provisions of such
to any person or circumstance shall not be affected there-
by.
TITLE IX—PROVISIONS RELAT-
ING TO NATIVE AMERICANS
SEC. 901. PROVISIONS RELATING TO NATIVE AMERICANS.
(a) IN GENERAL.—The provisions of this Act (or an
amendment made by this Act) shall apply to the manufac-
ture, distribution, and sale of tobacco products in any area
within the jurisdiction of an Indian tribe or tribal organi-
zation.
(b) RELIGIOUS PRACTICE EXCEPTION.—In recogni-
tion of the religious, traditional and ceremonial uses of
tobacco and tobacco products by many Indian tribes and
the members of such tribes, nothing in this Act (or an
amendment made by this Act) shall be construed to in-
fringe upon the rights of such tribes or members to trans-
fer, acquire, possess, or use any tobacco or tobacco prod-
205
be a member of the health care profession with experience
in asbestos disease or disability.
SEC. 1002. FUNDING OF TRUST; ASSESSMENT FROM TO-
BACCO COMPANIES.
(a) TRANSFERS; AUTHORIZATION.—There is trans-
ferred to the Tobacco Asbestos Trust Fund, without fur-
ther appropriation, an amount equal to the amounts re-
ceived under subsection (b). Amounts from the fund shall
be made available each year, without further appropria-
tion, as necessary to make the expenditures and alloca-
tions provided for in this title. There are authorized to
be appropriated to the Tobacco Asbestos Trust Fund, in
fiscal year 1999 and in any fiscal year thereafter through
fiscal year 2014, as repayable advances, such sums as may
be necessary to make the expenditures and allocations de-
scribed in section 1003.
(b) SPECIAL TOBACCO-ASBESTOS VICTIM ASSESS-
MENT.—In order to fund the appropriations and transfers
provided for in subsection (a), for each calendar year be-
ginning with fiscal year 1999, the Secretary of the Treas-
ury shall assess each tobacco manufacturer, in a fashion
consistent with this Act, an amount sufficient to provide
the Tobacco Asbestos Trust Fund with the following
amounts:
(1) In fiscal year 1999, $1,000,000,000.