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O:\ERN\ERN98.145
S.L.C.
AMENDMENT NO.
Calendar No.
Purpose: To ban the sale of tobacco products through the
use of vending machines and to compensate the owners
and operators of tobacco vending machines.
IN THE SENATE OF THE UNITED STATES-105th Cong., 2d Sess.
S. 1415
To facilitate implementation of the settlement reached be-
tween the Attorneys General of the several States and
manufacturers of tobacco products, and for other pur-
poses.
Referred to the Committee on
and ordered to be printed
Ordered to lie on the table and to be printed
AMENDMENT intended to be proposed by Mr. BURNS
Viz:
1
At the appropriate place in title XI, add the follow-
2 ing:
3 Subtitle
-Ban On Sale Of To-
4
bacco Products Through The
5
Use Of Vending Machines
6 SEC.
.
BAN OF SALE OF TOBACCO PRODUCTS_THROUGH
7
THE USE OF VENDING MACHINES.
8
(a) BAN OF SALE OF TOBACCO PRODUCTS THROUGH
9 THE USE OF VENDING MACHINES.-Effective 12 months
O:\ERN\ERN98.145
S.L.C.
2
1 after the date of enactment of this Act, it shall be unlawful
2 to sell tobacco products through the use of a vending ma-
3 chine.
4
(b) COMPENSATION FOR BANNED VENDING MA-
5 CHINES.-
6
(1) IN GENERAL.-The owners and operators of
7
tobacco vending machines shall be reimbursed for
8
the fair market value of their businesses, including
9
the cost of banned vending machines, compensation
10
for lost profits, unexpired contracts, and for the
11
owner's or operator's plant and equipment.
12
(2) TOBACCO VENDING REIMBURSAL CORPORA-
13
TION.-
14
(A) CORPORATION.-Reimbursal shall be
15
directed through the private, nonprofit corpora-
16
tion established in the District of Columbia,
17
known as the Tobacco Vending Reimbursal Cor-
18
poration (in this section referred to as the
19
"Corporation"). The Corporation is-
20
(i) not an agency or establishment of
21
the United States; and
22
(ii) except as otherwise provided in
23
this section, is subject to, and has all the
24
powers conferred upon a nonprofit corpora-
25
tion by the District of Columbia Nonprofit
/
3
1
Corporation Act (D.C. Code section 29-501
2
et seq.).
3
(B) DUTIES.-The Corporation shall--
4
(i) disburse compensation funds to
5
vending companies under this section;
6
(ii) verify operational machines; and
7
(iii) maintain complete records of ma-
8
chine verification and accountings of dis-
9
bursements and administration of the com-
10
pensation fund established under para-
11
graph (4).
12
(3) MANAGEMENT OF CORPORATION.-
13
(A) BOARD OF DIRECTORS.-The Corpora-
14
tion shall be managed by a Board of Directors
15
that-
16
(i) consists of distinguished Americans
17
with experience in finance, public policy, or
18
fund management;
19
(ii) includes at least 1 member of the
20
United States tobacco vending machine in-
21
dustry;
22
(iii) shall be paid an annual salary on
23
an individualized basis of $40,000 out of
24
amounts transferred to the Corporation
25
under paragraph (4) (A);
O:\ERN \ERN98.145
4
1
(iv) shall appoint a President to man-
2
age the day-to-day activities of the Cor-
3
poration;
4
(v) shall develop guidelines by which
5
the President shall direct the Corporation;
6
(vi) shall retain a national accounting
7
firm to verify the distribution of funds and
8
audit the compensation fund established
9
under paragraph (4);
10
(vii) shall retain such legal, manage-
11
ment, or consulting assistance as is nec-
12
essary and proper; and
13
(viii) shall periodically report to Con-
14
gress regarding the activities of the Cor-
15
poration.
16
(B) DUTIES OF THE PRESIDENT OF THE
17
CORPORATION.-The President of the Corpora-
18
tion shall-
19
(i) hire appropriate staff;
20
(ii) prepare the report of the Board of
21
Directors of the Corporation required
22
under subparagraph (A)(viiii); and
23
(iii) oversee Corporation functions, in-
24
cluding verification of machines, adminis-
25
tration and disbursement of funds, mainte-
O:\ERN
5
1
nance of complete records, operation of ap-
2
peals procedures, and other directed func-
3
tions.
4
(4) COMPENSATION FUND.-
5
(A) TRANSFER OF FUNDS FROM TOBACCO
6
INDUSTRY PAYMENTS.-Not later than 30 days
7
after the date of enactment of this Act, the Sec-
8
retary of the Treasury shall transfer to the Cor-
9
poration, out of funds paid to the United States
10
by the tobacco industry, such sums as are nec-
11
essary to make due compensation to owners and
12
operators of tobacco vending machines and to
13
carry out the duties of the Corporation. Not
14
later than 1 year after such date, the Secretary
15
of the Treasury shall transfer to the Corpora-
16
tion out of funds paid to the United States by
17
the tobacco industry, such additional sums as
18
may be necessary for such purposes.
19
(B) RULES FOR DISBURSEMENT OF
20
FUNDS.-
21
(i) PAYMENTS TO OWNERS AND OPER-
22
ATORS.-The Corporation shall disburse
23
funds to compensate the owners and opera-
24
tors of tobacco vending machines in ac-
25
cordance with the following:
O:\ERN \EMN98.140
6
1
(I) The fair market value of each
2
tobacco vending machine verified by
3
the Corporation President in accord-
4
ance with subparagraph (C), and
5
proven to have been in operation be-
6
fore August 10, 1995, shall be dis-
7
bursed to the owner of the machine
8
seeking compensation.
9
(II) No compensation shall be
10
made for a spiral glass front vending
11
machine.
12
(ii) OTHER PAYMENTS.-Funds trans-
13
ferred to the Corporation under subpara-
14
graph (A) may be used to pay the adminis-
15
trative costs of the Corporation that are
16
necessary and proper or required by law.
17
The total amount paid by the Corporation
18
for administrative and overhead costs, in-
19
cluding accounting fees, legal fees, consult-
20
ant fees, and associated administrative
21
costs shall not exceed 5 percent of the total
22
amount transferred to the Corporation
23
under subparagraph (A).
24
(C) VERIFICATION OF VENDING MA-
25
CHINES.-Verification of vending machines
7
1
shall be based on copies of official State vend-
2
ing licenses, company computerized or hand-
3
written sales records, or physical inspection by
4
the Corporation President or by an inspection
5
agent designated by the President. The Cor-
6
poration President and the Board of Directors
7
of the Corporation shall work vigorously to pre-
8
vent and prosecute any fraudulent claims sub-
9
mitted for compensation.
10
(D) RETURN OF. ACCOUNT FUNDS NOT
11
DISTRIBUTED TO VENDORS.-The Corporation
12
shall be dissolved on the date that is 4 years
13
after the date of enactment of this Act. Any
14
funds not dispersed or allocated to claims pend-
15
ing as of that date shall be transferred to a
16
public anti-smoking trust, or used for such
17
other purposes as Congress may designate.
18
(c) SETTLEMENT OF LEGAL CLAIMS PENDING
19 AGAINST THE UNITED STATES.-Acceptance of a com-
20 pensation payment from the Corporation by a vending ma-
21 chine owner or operator shall settle all pending and future
22 claims of the owner or operator against the United States
23 that are based on, or related to, the ban of the use of
24 tobacco vending machines imposed under this section and
8
1 any other laws or regulations that limit the use of tobacco
2 vending machines.
Amendment No.
Calendar No.
Amendment to Committee Amendment to S. 1415
Purpose: ensure that manufacturers who are compelled to share technology with
their competitors are compensated fair market value for their property
In the Committee on Commerce, Science, and Transportation
Amendment to be proposed by Mrs. Hutchison
Viz:
On page 61, line 15, strike the following:
commercially reasonable fee by
and insert the following:
fair market value to the owner of the technology and to assess an equitable
portion of that amount to
On page 61, line 18, strike the following:
to the manufacturer that submits the notice under paragraph (1) for such
technology.
and insert the following:
(period)
Ford Amendment #5. Purpose: To strengthen the ban on FDA authority to regulate farms
(1) On page 26, line 21, INSERT ", tobacco warehouses," after the word "growers";
(2) On page 26, on line 22, after "cooperatives" but before the period, add the following:
", nor shall any employee of the Food and Drug Administration have any authority
whatsoever to enter onto a farm owned by a tobacco grower without the written consent
of such tobacco grower"; and
(3) On page 27, STRIKE line 1 beginning with "The" through line 5 and INSERT the
following:
"Nothing in this chapter shall be construed to grant the Secretary authority to promulgate
regulations to any matter that involves the production or tobacco leaf or a producer
thereof."
O:\BAI\BAI98.793
S.L.C.
AMENDMENT NO.
Calendar No.
Purpose: To codify provisions relating to advertising and
marketing.
IN THE SENATE OF THE UNITED STATES-105th Cong., 2d Sess.
S.1415
To facilitate implementation of the settlement reached be-
tween the Attorneys General of the several States and
manufacturers of tobacco products, and for other pur-
poses.
Referred to the Committee on
and ordered to be printed
Ordered to lie on the table and to be printed
AMENDMENT intended to be proposed by Ms. SNOWE
Viz:
1
At the end of title I, add the following:
2 Subtitle C-Application of Adver-
3
tising and Marketing Restric-
4
tions
5 SEC. 131. ADVERTISING PROVISIONS IN PROTOCOL.
6
(a) IN GENERAL.-No TOBACCO PRODUCT SHALL BE
7 SOLD OR DISTRIBUTED IN THE UNITED STATES—
8
(1) unless its advertising and labeling (includ-
9
ing the package)-
O:\BAI\BAI98.793
S.L.C.
2
1
(A) contain no human image, animal
2
image, or cartoon character;
3
(B) are not outdoor advertising, including
4
advertising in enclosed stadia and advertising
5
from within a retail establishment that is di-
6
rected toward or visible from the outside of the
7
establishment;
8
(C) are accompanied by a disclaimer in the
9
advertising that words such as "light" or "low
10
tar" describing the product do not render the
11
product less hazardous than any other tobacco
12
product, in addition to such other requirements
13
as the Secretary may impose;
14
(D) at the time the advertising or labeling
15
is first used is submitted to the Secretary SO
16
that the Secretary may conduct regular review
17
of the advertising and labeling;
18
(E) comply with any applicable require-
19
ment of the Federal Food, Drug, and Cosmetic
20
Act and the Federal Cigarette Labeling and
21
Advertising Act;
22
(F) do not appear on the international
23
computer network of both Federal and non-
24
Federal interoperable packet switches data net-
25
works (the 'Internet'), unless such advertising
O:\BAI\BAI98.793
S.L.C.
3
1
is designed to be inaccessible in or from the
2
United States to all individuals under the age
3
of 18 years;
4
(G) use only black text on white back-
5
ground, other than (i) those locations where
6
self-service displays are permitted under sub-
7
section (a) (3) of section 545, if the advertising
8
is not visible from outside the establishment
9
and is affixed to a wall or fixture in the estab-
10
lishment, and (ii) advertisements appearing in
11
any publication which the manufacturer, dis-
12
tributor, or retailer demonstrates to the Sec-
13
retary is a newspaper, magazine, periodical, or
14
other publication whose readers under the age
15
of 18 years constitute 15 percent or less of the
16
total readership as measured by competent and
17
reliable survey evidence, and that is read by less
18
than 2 million persons under the age of 18
19
years as measured by competent and reliable
20
survey evidence;
21
(H) for video formats, use only static black
22
text on a white background, and any accom-
23
panying audio uses only words without music or
24
sound effects; and
O:\BAI\BAI98.793
S.L.C.
4
1
(I) for audio formats, use only words with-
2
out music or sound effects;
3
(2) if a logo, symbol, motto, selling message,
4
recognizable color or pattern of colors, or any other
5
indicia of product identification of the tobacco prod-
6
uct is contained in a movie, program, or video game
7
for which a direct or indirect payment has been
8
made to ensure its placement;
9
(3) if a direct or indirect payment has been
10
made by any manufacturer, distributor, or retailer to
11
any entity for the purpose of promoting the image
12
or use of a tobacco product through print or film
13
media that appeals to individuals under the age of
14
18 years or through a live performance by an enter-
15
tainment artist that appeals to such individuals;
16
(4) if a logo, symbol, motto, selling message,
17
recognizable color or pattern of colors, or any other
18
indicia or product identification identical to, similar
19
to, or identifiable with the tobacco product is used
20
for any item (other than a tobacco product) or serv-
21
ice marketed, licensed, distributed or sold or caused
22
to be marketed, licensed, distributed, or sold by the
23
manufacturer or distributor of the tobacco product;
O:\BAI\BAI98.793
S.L.C.
5
1
(5) unless its package label and advertising
2
bear the product's established name and a statement
3
of its intended use, as follows:
4
(A) Cigarettes-A Nicotine-Delivery De-
5
vice;
6
(B) Cigarette Tobacco-A Nicotine Delivery
7
Device; or
8
(C) Loose Leaf Chewing Tobacco, Plug
9
Chewing Tobacco, Twist Chewing Tobacco,
10
Moist Snuff, or Dry Snuff, whichever is appro-
11
priate for the product, followed by the words "A
12
Nicotine-Delivery Device";
13
(6)(A) except as provided in subparagraph (B),
14
if advertising or labeling for such product that is
15
otherwise in accordance with the requirements of
16
this section bears a tobacco product brand name
17
(alone or in conjunction with any other word) or any
18
other indicia of tobacco product identification and is
19
disseminated in a medium other than newspapers,
20
magazines, periodicals or other publications (whether
21
periodic or limited distribution), nonpoint-of-sale
22
promotional material (including direct mail), point-
23
of-sale promotional material, or audio or video for-
24
mats delivered at a point-of-sale; but
O:\BAI\BAI98.793
S.L.C.
6
1
(B) notwithstanding subparagraph (A), adver-
2
tising or labeling for cigarettes or smokeless tobacco
3
may be disseminated in a medium that is not speci-
4
fied in paragraph (1) if the manufacturer, distribu-
5
tor, or retailer notifies the Secretary not later than
6
30 days prior to the use of such medium, and the
7
notice describes the medium and the extent to which
8
the advertising or labeling may be seen by persons
9
under the age of 18 years.
10
(b) COLOR PRINT ADS ON MAGAZINES.-No tobacco
11 product may be sold or distributed in the United States
12 unless advertising for that product appears in other than
13 any color, or combination of colors, on the outside back
14 cover of a magazine the readership of which, as deter-
15 mined by the Secretary, consists primarily of individuals
16 who are 18 years of age or older.
17 SEC. 132. POINT-OF-SALE RESTRICTIONS.
18
(a) IN GENERAL.-Except as provided in subsection
19 (b), no manufacturer, distributor, or retailer shall engage
20 in point-of-sale advertising of any tobacco product in any
21 retail establishment (other than an establishment that
22 sells only tobacco products) in which an individual under
23 the age of 18 years of age is present, or permitted to enter,
24 at any time.
25
(b) EXCEPTION.-
O:\BAI\BAI98.793
S.L.C.
7
1
(1) IN GENERAL.-A retailer may place 1 point-
2
of-sale advertisement in or at each such location for
3
its brand or the contracted house retailer or private
4
label brand of its wholesaler.
5
(2) DISPLAY AREA.-The display area of any
6
such point-of-sale advertisement (either individually
7
or in the aggregate) shall not be larger than 576
8
square inches and shall consist of black letters on
9
white background or another recognized typography.
10
(3) LIMITATION.-Any such point-of-sale adver-
11
tisement shall not be attached to or located within
12
2 feet of any display fixture on which candy is dis-
13
played for sale.
14
(c) AUDIO AND VIDEO.-Any audio or video format
15 permitted under regulations promulgated by the Secretary
16 may be distributed at the time of sale of a tobacco product
17 to individuals over the age of 18 years, but no such format
18 may be played or shown in or at any location where to-
19 bacco products are offered for sale.
20
(d)
PROHIBITION
ON
LIMITATION
21 ARRNAGEMENTS.-No manufacturer or distributor of to-
22 bacco products may enter into any arrangement with a
23 retailer that limits the retailer's ability to display any form
24 of advertising or promotional material originating with an-
O:\BAI\BAI98.793
S.L.C.
8
1 other supplier and permitted by law to be displayed in a
2 retail establishment.
3
(e) DEFINITION.-As used in this section, the terms
4 "point-of-sale advertisement" and "point-of-sale advertis-
5 ing" mean all printed or graphical materials bearing the
6 brand name (alone or in conjunction with any other word),
7 logo, symbol, motto, selling message, or any other indicia
8 of product identification identical or similar to, or identifi-
9 able with, those used for any brand of cigarettes or smoke-
10 less tobacco, which, when used for its intended purpose,
11 can reasonably be anticipated to be seen by customers at
12 a location where tobacco products are offered for sale.
13 SEC. 133. SUNSET PROVISION.
14
The provisions of this subtitle shall cease to apply
15 beginning on the date on which all tobacco manufacturers
16 to which this Act applies have entered into the Protocol.
A:\FRIST.1
Approved -voice vote
AMENDMENT NO.
CAL. NO.
[STAFF WORKING DRAFT]
March 31, 1998
COMMITTEE AMENDMENT
Purpose: To establish a compliance bonus fund for States
and retailers.
IN THE COMMITTEE ON COMMERCE, SCIENCE, AND
TRANSPORTATION-105TH Cong., 2D Sess.
S. 1415, 105TH Congress, 2D Session
APRIL 1, 1998
INTENDED to be proposed by Mr. FRIST
Viz:
1
On page 108, line 12, strike "10" and insert "5".
2
On page 108, line 15, strike "10" and insert "5".
3
On page 108, between lines 23 and 24, insert the fol-
4 lowing:
5
(3) The Secretary shall retain 5 percent of all
6
penalties paid and not refunded and credit that
7
amount to the Compliance Bonus Account for States
8
and Retailers.
9
On page 119, beginning with line 21 and strike
10 through line 17 on page 126, and insert the following:
A:\FRIST.1
2
1 SEC. 211. COMPLIANCE BONUS FUND.
2
(a) ESTABLISHMENT.THERE IS ESTABLISHED WITH-
3 IN THE NATIONAL TOBACCO SETTLEMENT TRUST FUND
4 ESTABLISHED BY SECTION 401 A SEPARATE ACCOUNT TO
5 BE KNOWN AS THE COMPLIANCE BONUS ACCOUNT FOR
6 STATES AND RETAILERS.
7
(b) CREDITS TO ACCOUNT.-For each fiscal year
8 there shall be credited to the Account an amount equal
9 to—
10
(1) 5 percent of the amounts available for ex-
11
penditure or obligation under section 202; and
12
(2) any amounts returned under section 213 as
13
penalty payments.
14 SEC 212. BLOCK GRANTS.
15
(a) IN GENERAL.-The Secretary shall award block
16 grants to States determined to be eligible under subsection
17 (b).
18
(b) ELIGIBLE STATES.-To be eligible to receive a
19 grant under subsection (a), a State shall-
20
(1) prepare and submit to the Secretary an ap-
21
plication, at such time, in such manner, and contain-
22
ing such information as the Secretary may require;
23
and
24
(2) with respect to the year involved, dem-
25
onstrate to the satisfaction of the Secretary that
26
fewer than 5 percent of all individuals under 18
S. 1415 Amdt.
A:\FRIST.1
3
1
years of age who attempt to purchase tobacco prod-
2
ucts in the State in such year are successful in such
3
purchase.
4
(c) PAYOUT; USE OF FUNDS.-
5
(1) ANNUAL DISTRIBUTION.-For each fiscal
6
year in which one or more States is eligible to re-
7
ceive a grant under this section, the Secretary shall
8
pay out the balance in the account established under
9
section 211(a) as of the end of the preceding fiscal
10
year.
11
(2) PAYMENT TO STATE.-If more than one
12
State is eligible to receive a grant under this section
13
for any fiscal year, the amount payable for that fis-
14
cal year shall be apportioned among such eligible
15
States on the basis of population.
16
(3) USE OF FUNDS.-Each State that receives
17
a grant under this section shall distribute half of the
18
amount received among retail outlets of tobacco
19
products that, for fiscal year for which the State met
20
the requirements of subsection (b), have outstanding
21
records of compliance with the restrictions on under-
22
age sales of tobacco products.
23
SEC. 213. STATE ENFORCEMENT INCENTIVES.
24
(a) IN GENERAL.-
S. 1415 Amdt.
A:\FRIST.1
4
1
(1) ACTIVITIES AND REPORTS REGARDING EN-
2
FORCEMENT.-A State shall-
3
(A) conduct monthly random, unannounced
4
inspections of sales or distribution outlets in the
5
State to ensure compliance with a law prohibit-
6
ing sales of tobacco products to individuals
7
under 18 years of age;
8
(B) annually submit to the Secretary a re-
9
port describing-
10
(i) the activities carried out by the
11
State to enforce underage access laws dur-
12
ing the fiscal year; and
13
(ii) the extent of success the State has
14
achieved in reducing the availability of to-
15
bacco products to individuals under the
16
age of 18 years; and
17
(C) (i) a detailed description of how the in-
18
spections described in subparagraph (A) were
19
conducted and the methods used to identify
20
outlets, with appropriate protection for the con-
21
fidentiality of information regarding the timing
22
of inspections and other investigative techniques
23
whose effectiveness depends on continued con-
24
fidentiality;
S. 1415 Amdt.
A:\FRIST.1
5
1
(ii) the identity of the single State agency
2
designated by the Governor of the State to be
3
responsible for the implementation of the re-
4
quirements of this section.
5
(2) MINIMUM INSPECTION SCHEDULE.-In
6
order to meet the requirements of paragraph (1)(A),
7
inspections conducted by the State shall include at
8
least 250 random, unannounced inspections of retail
9
sale outlets annually for each 1,000,000 persons
10
resident in the State, as most recently determined by
11
the Bureau of the Census. Such inspections shall
12
cover a range of outlets (not preselected on the basis
13
of prior violations) to measure overall levels of com-
14
pliance as well as to identify violations, and shall be
15
conducted to provide a probability sample of outlets.
16
The sample must reflect the distribution of the pop-
17
ulation under the age of 18 years throughout the
18
State and the distribution of the outlets throughout
19
the State accessible to youth. Indian tribes shall con-
20
duct such inspections monthly of at least 1 retail
21
outlet subject to their jurisdiction for each 4,000
22
reservation residents. Except as provided in this
23
paragraph, any reports required by this paragraph
24
shall be made public. As used in this paragraph, the
25
term "outlet" refers to any location that sells at re-
S. 1415 Amdt.
A:\FRIST.1
6
1
tail or otherwise distributes tobacco products to con-
2
sumers, including to locations that sell such prod-
3
ucts over-the-counter.
4
(b) NONCOMPLIANCE.-The Secretary shall withhold
5 from any State that fails to meet the requirements of sub-
6 section (a) or to demonstrate a compliance rate of-
7
(1) at least 75 percent in the fifth and sixth fis-
8
cal years after the date of enactment of the Tobacco
9
Products Control Act of 1998;
10
(2) at least 85 percent in the seventh, eighth,
11
and ninth fiscal years after such date; and
12
(3) at least 90 percent in every fiscal year be-
13
ginning with the tenth fiscal year after such date,
14 an amount equal to 5 percent of all amounts otherwise
15 payable under section 202 (e) to any State for that fiscal
16 year.
17
(c) DEFINITION.-For the purposes of this section,
18 the term "first applicable fiscal year" means the first fis-
19 cal year beginning after the fiscal year in which funding
20 is made available to the States under this section.
21
(f) RELEASE AND DISBURSEMENT.-
22
(1) Upon notice from the Secretary that an
23
amount payable under section 202(e) has been or-
24
dered withheld under subsection (b), a State may pe-
25
tition the Secretary for a release and disbursement
S. 1415 Amdt.
A:\FRIST.1
7
1
of up to 75 percent of the amount withheld, and
2
shall give timely written notice of such petition to
3
the attorney general of that State and to all tobacco
4
product manufacturers.
5
(2) The agency shall conduct a hearing on such
6
a petition, in which the attorney general of the State
7
and tobacco product manufacturers may participate
8
and be heard.
9
(3) The burden shall be on the State to prove,
10
by a preponderance of the evidence, that the release
11
and disbursement should be made. The Secretary's
12
decision on whether to grant such a release, and the
13
amount of any such disbursement, shall be based on
14
whether-
15
(A) the State has acted in good faith and
16
in full compliance with this Act, and any rules
17
or regulations promulgated under this Act;
18
(B) the State has pursued all reasonably
19
available measures to attain the compliance
20
rates and required percentage reductions appli-
21
cable in the year for which the release is being
22
sought;
23
(C) there is evidence of any direct or indi-
24
rect action by the State to undermine the
25
achievement of the compliance rates, the re-
S. 1415 Amdt.
A:\FRIST.1
8
1
quired percentage reductions, or other terms
2
and objectives of this Act or the Tobacco Prod-
3
ucts Control Act of 1998; and
4
(D) any other relevant evidence.
5
(4) A State shall be entitled to interest on any
6
withheld amount released at the average United
7
States 52-Week Treasury Bill rate for the period be-
8
tween the withholding of the amount and its release.
9
(5) Any State attorney general or tobacco product
10
manufacturer aggrieved by a final decision on a peti-
11
tion filed under this subsection may seek judicial re-
12
view of such decision within 30 days in the United
13
States Court of Appeals for the District of Columbia
14
Circuit. Unless otherwise specified in this Act, judi-
15
cial review under this section shall be governed by
16
sections 701 through 706 of title 5, United States
17
Code.
18
(6) No stay or other injunctive relief enjoining
19
a reduction in a State's allotment pending appeal or
20
otherwise may be granted by the Secretary or any
21
court.
22 SEC. 214. CONFORMING CHANGE.
23
Section 1926 of the Public Health Service Act (42
24 U.S.C. 300x-26) is hereby repealed.
o
S. 1415 Amdt.
Set aside
Ford Amendment #14. Purpose: To strike brand-specific penalties, which impose absurd
penalties on manufacturers of brands with de minimus youth market shares
(1) On page 110, line 5 through page 115, line 11, strike all of section 203; and
(2) On page 115, line 12, strike "204" and insert "203"
Accepted voice vote
Ford Amendment #16. Purpose: To clarify chart on p.104 to read "Required percentage
reduction as a percentage of base incidence percentage in Underage Smokeless Tobacco Use"
On page 104, in the chart appearing at the top of the page, strike "Required Percentage
Reduction in Underage Smokeless Tobacco Use" from the heading of the right column of such
chart, and insert the following: "Required Percentage Reduction as a Percentage of Base
Incidence Percentage in Underage Smokeless Tobacco Use"
O:\BAI\BAI98.829
S.L C.
AMENDMENT NO.
Calendar No.
Purpose: To modify provisions relating to required reductions
in the underage use of tobacco products.
IN THE SENATE OF THE UNITED STATES-105th Cong., 2d Sess.
S. 1415
To facilitate implementation of the settlement reached be-
tween the Attorneys General of the several States and
manufacturers of tobacco products, and for other pur-
poses.
Referred to the Committee on
and ordered to be printed
Ordered to lie on the table and to be printed
AMENDMENT intended to be proposed by Mr. WYDEN
Viz:
1
Strike subtitle A of title II and insert the following:
2 Subtitle A-Reduction in Underage
3
Tobacco Use
4 SEC. 201. PURPOSE.
5
It is the purpose of this subtitle to encourage the
6 achievement of reductions in the number of underage con-
7 sumers of tobacco products through the imposition of ad-
8 ditional financial deterrents relating to tobacco products
9 if certain underage tobacco-use reduction targets are not
10 met.
O:\BAI\BAI98.829
S.L.C.
2
1 SEC. 202. CHILD TOBACCO USE SURVEYS.
2
(a) ANNUAL PERFORMANCE SURVEY.-Not later
3 than 1 year after the date of the enactment of this title
4 and annually thereafter the Secretary shall conduct a sur-
5 vey to determine the number of children including minor-
6 ity children who used each manufacturer's tobacco prod-
7 ucts within the past 30 days.
8
(b) EXCLUSION OF CERTAIN AGES.-The Secretary
9 may exclude from the survey conducted under subsection
10 (a), children under the age of 12 years (or such other less-
11 er age as the Secretary may establish) to strengthen the
12 validity of the survey.
13
(c) BASELINE LEVEL.-The baseline level of the child
14 tobacco product use of a manufacturer (referred to in this
15 subtitle as the "baseline level") is the number of children
16 determined to have used the tobacco products of such
17 manufacturer in the first annual performance survey for
18 1999.
19
(d) ADDITIONAL MEASURES.-In order to increase
20 the understanding of youth tobacco product use, the Sec-
21 retary may, for informational purposes only, add addi-
22 tional measures to the survey under subsection (a), con-
23 duct periodic or occasional surveys at other times, and
24 conduct surveys of other populations such as young adults.
25 The results of such surveys shall be made available to
O:\BAI\BAI98.829
S.L.C.
3
1 manufacturers and the public to assist in efforts to reduce
2 youth tobacco use.
3
(e) DEFINITION.-As used in this subtitle, the term
4 "tobacco product" means cigarettes, smokeless tobacco
5 products, cigars, and roll-your-own tobacco products.
6 SEC. 203. REDUCTION IN UNDERAGE TOBACCO PRODUCT
7
USAGE.
8
(a) STANDARDS FOR EXISTING MANUFACTURERS.-
9 Each manufacturer which manufactured a tobacco prod-
10 uct on or before the date of the enactment of this title
11 shall reduce the number of children including minority
12 children who use its tobacco products SO that the number
13 of overall children determined to have used its tobacco
14 products on the basis of-
15
(1) the third annual performance survey is
16
equal to or less than—
17
(A) 70 percent of the manufacturer's base-
18
line level; or
19
(B) the de minimis level;
20
whichever is greater;
21
(2) the fourth annual performance survey is
22
equal to or less than-
11
23
(A) 60 percent of the manufacturer's base-
24
line level; or
25
(B) the de minimis level;
O:\BAI\BAI98.829
S.L.C
4
1
whichever is greater;
2
(3) the fifth annual performance survey is equal
3
to or less than-
4
(A) 50 percent of the manufacturer's base-
5
line level; or
6
(B) the de minimis level;
7
whichever is greater;
8
(4) the sixth annual performance survey is
9
equal to or less than-
10
(A) 40 percent of the manufacturer's base-
11
line level; or
12
(B) the de minimis level;
13
whichever is greater;
14
(5) the seventh annual performance survey is
15
equal to or less than-
16
(A) 35 percent of the manufacturer's base-
17
line level; or
18
(B) the de minimis level;
19
whichever is greater;
20
(6) the eighth annual performance survey is
21
equal to or less than—
22
(A) 30 percent of the manufacturer's base-
23
line level; or
24
(B) the de minimis level;
25
whichever is greater;
O:\BAI\BAI98.829
S.L.C.
5
1
(7) the ninth annual performance survey is
2
equal to or less than-
3
(A) 25 percent of the manufacturer's base-
4
line level; or
5
(B) the de minimis level;
6
whichever is greater; and
7
(8) the 10th annual performance survey and
8
each annual performance survey conducted there-
9
after is equal to or less than-
10
(A) 20 percent of the manufacturer's base-
11
line level; or
12
(B) the de minimis level;
13
whichever is greater.
14
(b) STANDARDS FOR NEW MANUFACTURERS.-Any
15 manufacturer of a tobacco product which begins to manu-
16 facture a tobacco product after the date of the enactment
17 of this title shall ensure that the number of children deter-
18 mined to have used the manufacturer's tobacco products
19 in each annual performance survey conducted after the
20 manufacturer begins to manufacture tobacco products is
21 equal to or less than the de minimis level.
22
(c) DE MINIMIS LEVEL.-The de minimis level shall
23 be 0.5 percent of the total number of children determined
24 to have used tobacco products in the first annual perform-
25 ance survey.
O:\BAI\BAI98.829
S.L.C.
6
1
SEC. 204. NONCOMPLIANCE.
2
(a) VIOLATION OF STANDARD.-If, with respect to a
3 year, a manufacturer of a tobacco product fails to comply
4 with the required reduction under section 203(a), the
5 manufacturer shall pay to the Secretary a noncompliance
6 fee for each unit of tobacco products manufactured by the
7 manufacturer which is distributed for consumer use in the
8 year following the year in which the noncompliance occurs,
9 in the amount specified in subsection (b).
10
(b) NONCOMPLIANCE FEE PER UNIT.-
11
(1) IN GENERAL.-With respect to a year, a
12
manufacturer of a tobacco product shall be required
13
to pay a noncompliance fee for each unit of tobacco
14
products manufactured by the manufacturer if the
15
noncompliance factor of the manufacturer (as deter-
16
mined under paragraph (3)) for the year is greater
17
than zero.
18
(2) AMOUNT OF FEE.-The amount of the non-
19
compliance fee that is required to be paid by a man-
20
ufacturer under this section for each unit of tobacco
21
products manufactured by the manufacturer for the
22
year involved shall be equal to-
"
23
(A) 2 cents multiplied by SO much of the
24
noncompliance factor as does not exceed 5;
O:\BAI\BAI98.829
S.L.C.
7
1
(B) 3 cents multiplied by SO much of the
2
noncompliance factor as exceeds 5 but does not
3
exceed 10;
4
(C) 4 cents multiplied by SO much of the
5
noncompliance factor as exceeds 10 but does
6
not exceed 15;
7
(D) 5 cents multiplied by SO much of the
8
noncompliance factor as exceeds 15 but does
9
not exceed 20; and
10
(E) 6 cents multiplied by SO much of the
11
noncompliance factor as exceeds 20 but does
12
not exceed 25.
13
(3) NONCOMPLIANCE FACTOR.-The noncompli-
14
ance factor of a manufacturer shall be equal to 100
15
multiplied by the noncompliance percentage of the
16
manufacturer (as determined under paragraph (4)).
17
(4) NONCOMPLIANCE PERCENTAGE.-The non-
18
compliance percentage (if any) of a manufacturer
19
shall be equal to 1 less the ratio of-
20
(A) the actual reduction that is achieved
21
by the manufacturer in the number of children
22
who use the manufacturer's tobacco products in
23
the year involved; and
O:\BAI\BAI98.829
S.L.C.
8
1
(B) the reduction required under section
2
203(a) in the number of children who use the
3
manufacturer's tobacco products for the year.
4
(c) NONCOMPLIANCE FEES FOR CONSECUTIVE VIO-
5 LATIONS.-If a manufacturer of a tobacco product fails
6 to comply with the required reduction under section
7 203(a) in 2 or more consecutive years, the noncompliance
8 fee that is required to be paid by the manufacturer under
9 this section for each unit of tobacco products manufac-
10 tured by such manufacturer which is distributed for
11 consumer use in the year following the year in which the
12 noncompliance occurs, shall be the amount determined
13 under subsection (b) for the year multiplied by the number
14 of consecutive years in which the manufacturer has failed
15 to comply with such required reductions.
16
(d) PROHIBITION ON SINGLE-PACK SALES IN CASES
17 OF REPEATED NONCOMPLIANCE.-Not later than 1 year
18 after the date of enactment of this title, the Secretary
19 shall establish regulations to prohibit the sale of single
20 packs of a manufacturer's tobacco products in cases of
21 repeated noncompliance with the reductions required
22 under section 203(a). Such regulations shall require that,
23 if a manufacturer fails to comply with such reductions in
24 3 or more consecutive years, the manufacturer's tobacco
25 products may be sold in the following year only in pack-
O:\BAI\BAI98.829
S.L.C.
9
1 ages containing not less than 10 units of the product per
2 package (200 cigarettes per package in the case of ciga-
3 rettes, and a corresponding package size for other tobacco
4 products).
5
(e) REQUIRED GENERIC PACKAGING IN SEVERE
6 CASES OF REPEATED NONCOMPLIANCE.-Not later than
7 1 year after the date of enactment of this title, the Sec-
8 retary shall establish regulations to require units and
9 packages of a manufacturer's tobacco products to have ge-
10 neric packaging in severe cases of repeated noncompliance
11 with the reductions required under section 203(a). Such
12 regulations shall require that, if a manufacturer fails to
13 comply with such reductions in 4 or more consecutive
14 years, the manufacturer's tobacco products may be sold
15 in the following year only in units and packages whose
16 packaging contains no external images, logos, or text
17 (other than any required labels), except that the brand
18 name and the identifier 'tobacco' may appear on the pack-
19 aging in block lettering in black type on a white back-
20 ground.
21
(f) PAYMENT.-The noncompliance fee to be paid by
22 a manufacturer under this section shall be paid on-a quar-
23 terly basis, with payments due not later than 30 days after
24 the end of each calendar quarter.
O:\BAI\BAI98.829
S.L.C
10
1
SEC. 205. USE OF AMOUNTS.
2
Amounts received under section 204 shall be used as
3 the Secretary determines appropriate to further the pur-
4 poses of this Act.
5 SEC. 206. MISCELLANEOUS PROVISIONS.
6
(a) JUDICIAL REVIEW.-A manufacturer of tobacco
7 products may seek judicial review of any action under this
8 subtitle only after a noncompliance fee has been assessed
9 and paid by the manufacturer and only in the United
10 States District Court for the District of Columbia. In an
11 action by a manufacturer seeking judicial review of an an-
12 nual performance survey, the manufacturer may prevail-
13
(1) only if the manufacturer shows that the re-
14
sults of the performance survey were arbitrary and
15
capricious; and
16
(2) only to the extent that the manufacturer
17
shows that it would have been required to pay a less-
18
er noncompliance fee if the results of the perform-
19
ance survey were not arbitrary and capricious.
20
(b) PASS-THROUGH.-Nothing in this subtitle shall
21 be construed as prohibiting a manufacturer from passing
22 the costs of the amount of any noncompliance fee assessed
23 under this subtitle on to consumers of tobacco products
24 as a further economic deterrent to the use of such prod-
25 ucts.
O:\BAI\BAI98.829
S.L.C.
11
1
(c) PROHIBITION.-No stay or other injunctive relief
2 may be granted by the Secretary or any court that has
3 the effect of enjoining the imposition and collection of non-
4 compliance fees to be applied under this section.
5
(d) CHILD.-As used in this subtitle, the term 'child'
6 means, except as provided in section 202(b), an individual
7 who is under the age of 18.
8
(e) TREATMENT OF SURCHARGE PAYMENTS.-The
9 payment of assessments under this subtitle shall be con-
10 sidered the payment of a fine or similar penalty to the
11 Federal government for the violation of a law and shall
12 not be considered to be an ordinary and necessary expense
13 in carrying on a trade or business.
O:\MAT\MAT98.270
S.L.C.
withhaum
AMENDMENT NO.
Calendar No.
Purpose: To transfer certain settlement proceeds to the Black
Lung Disability Trust Fund, and for other purposes.
IN THE SENATE OF THE UNITED STATES-105th Cong., 2d Sess.
S.1415
To facilitate implementation of the settlement reached be-
tween the Attorneys General of the several States and
manufacturers of tobacco products, and for other pur-
poses.
Referred to the Committee on
and ordered to be printed
Ordered to lie on the table and to be printed
AMENDMENT intended to be proposed by Mr. BURNS
Viz:
1
At the end of title IV add the following:
2 SEC. 411. TRANSFER OF CERTAIN SETTLEMENT PROCEEDS
3
TO BLACK LUNG DISABILITY TRUST FUND.
4
(a) IN GENERAL.-Section 9501(b) of the Internal
5 Revenue Code of 1986 (relating to relating to transfer of
6 certain taxes; other receipts) is amended by adding at the
7 end the following:
8
"(3) TRANSFERS FROM NATIONAL TOBACCO
9
SETTLEMENT TRUST FUND.-There are hereby
10
transferred to the Black Lung Disability Trust
O:\MAT\MAT98.270
S.L.C.
2
1
Fund such sums as are necessary from the National
2
Tobacco Settlement Trust Fund equal to the excess
3
of-
4
"(A) the expenditures from the Black
5
Lung Disability Trust Fund, over
6
"(B) the amounts appropriated or credited
7
to such Trust Fund under paragraphs (1) and
8
(2)
9
(b) ELIMINATION OF EXCISE TAX ON COAL TRANS-
10 FERRED TO BLACK LUNG DISABILITY TRUST FUND.-
11
(1) TERMINATION OF TAX.-Subsection (e) of
12
section 4121 of the Internal Revenue Code of 1986
13
(relating to imposition of tax) is amended to read as
14
follows:
15
"(e) TERMINATION.-The tax imposed by this section
16 shall apply during periods before the date which is 30 days
17 after the date of the enactment of the Tobacco Products
18 Control Act of 1998.
19
(2) ELIMINATION OF TRANSFER.-Section
20
9501(b)(1) of such Code (relating to transfer to
21
Black Lung Disability Trust Fund of amounts
22
equivalent to certain taxes) is amended by striking
23
"section 4121 or".
24
(c) TERMINATION OF NEW REPAYABLE AD-
25 VANCES.-Section 9501(c) of the Internal Revenue Code
O:\MAT\MAT98.270
S.L.C.
3
1 of 1986 (relating to repayable advances) is amended by
2 adding at the end the following:
3
"(4) TERMINATION.-The authorization with
4
respect to repayable advances described in para-
5
graph (1) shall not apply after the date which is 30
6
days after the date of the enactment of the Tobacco
7
Products Control Act of 1998.
8
(d) EFFECTIVE DATE.-The amendments made by
9 this section shall take effect on the date which is 30 days
10 after the date of the enactment of the Tobacco Products
11 Control Act of 1998.
Approve voice vote
knowe
SEC.1181.SENSE OF THE SENATE
It is the Sense of the Senate that the proceeds of this Act may be used for purposes
including, but not limited to -
(1) reimbursing public health care financing programs for tobacco-related costs,
including Medicare;
(2) supporting tobacco use prevention and cessation, particularly with respect to
youth, including counter-advertising at the Federal, State, Tribal, and local level;
(3) supporting tobacco-related health research activities;
(4) assisting tobacco farmers and tobacco dependent communities;
(5) creating and fully and adequately funding a Tobacco Asbestos Trust to assist
victims of the unique harm that smoking causes to asbestos workers;
(6) settling with and reimbursing States for tobacco-related health care costs and
damages, including Medicaid; and,
(7) providing funding for the federal Black Lung Program.
(8) Child came development
Where's Kerny's child care?
Vets
Clinical hials
child medicaid eligibility
Laid aride
Amendment No.
Calendar No.
Amendment to Committee Amendment to S. 1415
Purpose: To ensure that funds distributed to states by this Act are expended in accordance
with state law and processes.
In the Committee on Commerce, Science, and Transportation
Amendment to be proposed by Mrs. Hutchison
Viz:
On page
, line
, insert the following:
In the event any funds from this Act are received by a state under this Act, such funds shall
be subject to appropriations as determined by state law.
I
-
F6654 180 FILENAME
I81DISCUSSION DRAFT
I81CONFIDENTIAL DRAFT_
182S.L.C.
I38AMENDMENT NO. G7 T2XX G1 T1
136 Calendar No. G7 T2XX G1 T1
I39 Purpose: To provide uniform standards for the awarding of compensatory and punitive
damages in a civil action against a volunteer or volunteer service organization, and for
other purposes.
145IN THE SENATE OF THE UNITED STATES_105th Cong., 2d Sess.
143s 1415
I43S. RES.
I43S. CON. RES.
-
I43S. J. RES.
177 TITLE To reform and restructure the processes by which tobacco products are
manufactured, marketed, and distributed, to prevent the use of tobacco products by
minors, to redress the adverse health effects of tobacco use, and for other purposes.
S6652 146 T1 (no.) K G7 T2XXXX G1 T1
187 (title) L 187 L 187 L 187 L 187
S6654 146 DATELINE
177Referred to the Committee on G7 T2XXXXXXXXXXXXX G1 T1 and ordered to be
printed
177Ordered to lie on the table and to be printed
155 4Amendment In the Nature of a Substitute Kintended to be proposed by
SPONSOR Mr. T4Ashcroft K to the amendment (No. G7 T2XX K) proposed by
-
G7 T2XXXXXXXXX G1 T1 _to the Committee amendment_
155Viz:
S6201 I20 At the appropriate place, insert the following:
I72SEC. G7 T2XX K T2. LIABILITY REFORM FOR VOLUNTEER SERVICE
ORGANIZATIONS.
120 (a) T4Findings and Purposes K.
122 (1) T4Findings K. Congress finds that
124 (A) the increasingly litigious nature of the legal profession in the United States has
created an unnecessary and ultimately harmful barrier between the traditional desire of
individuals to help other individuals and their ability to act on those desires;
124 (B) the cost of lawsuits, excessive, unpredictable, and often arbitrary damage
awards, and unfair allocations of liability have a direct and chilling effect on the spirit of
volunteerism and the provision of charitable service in the United States;
124 (C) arbitrary and capricious damage awards against charitable institutions have
contributed considerably to the high cost of liability insurance, making it difficult and
often impossible for volunteer service organizations to be protected from liability as
many volunteer service organizations serve the public without regard to receiving any
personal or institutional economic benefits from that service;
124 (D) as a result, volunteer service organizations throughout the United States have
been adversely affected and often debilitated;
124 (E) without a resurgence in volunteerism, the essential services that volunteer
service organizations provide, including crisis counseling, volunteer rescue services,
coaches and referees for sports activities of children, and support for the elderly, will
continue to diminish;
124 (F) clarifying and limiting the personal liability risks assumed by individuals and
institutions who volunteer to help others without benefit to themselves is an appropriate
subject for Federal legislation because
126 (i) of the national scope of the problems created by the legitimate fears about
frivolous, arbitrary, or capricious lawsuits;
126 (ii) the citizens of the United States depend on, and the Federal Government
expends funds on, numerous social programs that depend on the services of volunteers
service organizations; and
I26 (iii) it is in the interest of the Federal Government to encourage the continued
operation of volunteer service organizations and contributions of volunteers because
the Federal Government lacks the capacity to carry out all of the services provided by
such organizations; and
S6201 I24 (G) liability reform for volunteer service organizations will promote the free
flow of goods and services, lessen burdens on interstate commerce and uphold
constitutionally protected due process rights and that liability reform is thus an
appropriate use of the powers contained in article I, section 8, clause 3 of the United
States Constitution, and the fourteenth amendment to the United States Constitution.
122 (2) Purposes K. The purposes of this section are to provide protection from
personal financial liability for volunteer service organizations that provide volunteer
services that are conducted in good faith
124 (A) to promote the interests of social service program beneficiaries and taxpayers;
124 (B) to sustain the availability of programs, volunteer service organizations, and
governmental entities that depend on volunteer contributions and services; and
I24 (C) to provide the protection by
126 (i) placing reasonable limits on punitive damages;
I26 (ii) ensuring the fair allocation of liability in certain civil actions; and
126 (iii) establishing greater fairness, rationality, and predictability in the civil justice
system of the United States.
120 (b) T4Definitions K. In this section:
122 (1) Claimant K.
I24 (A) T4ln general K. The term ``claimant" means any person who asserts a claim
for damages in an action covered by this section and any person on whose behalf such
a claim is asserted.
I24 (B) Claimants for certain claims K. If a claim described in subparagraph (A)
is asserted through or on behalf of
I26 (i) an estate, the term includes the claimant's decedent; or
126 (ii) a minor or incompetent, the term includes the claimant's legal guardian.
I22 (2) T4Clear and convincing evidence K.
124 (A) T4ln general K. The term ``clear and convincing evidence" is that measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.
124 (B) 4Degree of proof K. The degree of proof required to satisfy the standard of
clear and convincing evidence shall be
I26 (i) greater than the degree of proof required to meet the standard of
preponderance of the evidence; and
126 (ii) less than the degree of proof required to meet the standard of proof beyond a
reasonable doubt.
122 (3) [4Compensatory damages K. The term ``compensatory damages" means
damages awarded for economic and noneconomic loss.
122 (4) T4Economic loss K. The term ``economic loss" means any pecuniary loss
resulting from harm (including the loss of earnings or other benefits related to
employment, medical expense loss, replacement services loss, loss due to death, burial
costs, and loss of business or employment opportunities) to the extent recovery for
such loss is allowed under applicable State law.
122 (5) T4Harm K. The term "harm" means
124 (A) any physical injury, illness, disease, or death;
124 (B) damage to property; or
124 (C) economic loss, including any direct or consequential economic loss.
122 (6) T4Health care provider The term ``health care provider" means any
Page data
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"ocrText": "O:\\ERN\\ERN98.145\nS.L.C.\nAMENDMENT NO.\nCalendar No.\nPurpose: To ban the sale of tobacco products through the\nuse of vending machines and to compensate the owners\nand operators of tobacco vending machines.\nIN THE SENATE OF THE UNITED STATES-105th Cong., 2d Sess.\nS. 1415\nTo facilitate implementation of the settlement reached be-\ntween the Attorneys General of the several States and\nmanufacturers of tobacco products, and for other pur-\nposes.\nReferred to the Committee on\nand ordered to be printed\nOrdered to lie on the table and to be printed\nAMENDMENT intended to be proposed by Mr. BURNS\nViz:\n1\nAt the appropriate place in title XI, add the follow-\n2 ing:\n3 Subtitle\n-Ban On Sale Of To-\n4\nbacco Products Through The\n5\nUse Of Vending Machines\n6 SEC.\n.\nBAN OF SALE OF TOBACCO PRODUCTS_THROUGH\n7\nTHE USE OF VENDING MACHINES.\n8\n(a) BAN OF SALE OF TOBACCO PRODUCTS THROUGH\n9 THE USE OF VENDING MACHINES.-Effective 12 months\nO:\\ERN\\ERN98.145\nS.L.C.\n2\n1 after the date of enactment of this Act, it shall be unlawful\n2 to sell tobacco products through the use of a vending ma-\n3 chine.\n4\n(b) COMPENSATION FOR BANNED VENDING MA-\n5 CHINES.-\n6\n(1) IN GENERAL.-The owners and operators of\n7\ntobacco vending machines shall be reimbursed for\n8\nthe fair market value of their businesses, including\n9\nthe cost of banned vending machines, compensation\n10\nfor lost profits, unexpired contracts, and for the\n11\nowner's or operator's plant and equipment.\n12\n(2) TOBACCO VENDING REIMBURSAL CORPORA-\n13\nTION.-\n14\n(A) CORPORATION.-Reimbursal shall be\n15\ndirected through the private, nonprofit corpora-\n16\ntion established in the District of Columbia,\n17\nknown as the Tobacco Vending Reimbursal Cor-\n18\nporation (in this section referred to as the\n19\n\"Corporation\"). The Corporation is-\n20\n(i) not an agency or establishment of\n21\nthe United States; and\n22\n(ii) except as otherwise provided in\n23\nthis section, is subject to, and has all the\n24\npowers conferred upon a nonprofit corpora-\n25\ntion by the District of Columbia Nonprofit\n/\n3\n1\nCorporation Act (D.C. Code section 29-501\n2\net seq.).\n3\n(B) DUTIES.-The Corporation shall--\n4\n(i) disburse compensation funds to\n5\nvending companies under this section;\n6\n(ii) verify operational machines; and\n7\n(iii) maintain complete records of ma-\n8\nchine verification and accountings of dis-\n9\nbursements and administration of the com-\n10\npensation fund established under para-\n11\ngraph (4).\n12\n(3) MANAGEMENT OF CORPORATION.-\n13\n(A) BOARD OF DIRECTORS.-The Corpora-\n14\ntion shall be managed by a Board of Directors\n15\nthat-\n16\n(i) consists of distinguished Americans\n17\nwith experience in finance, public policy, or\n18\nfund management;\n19\n(ii) includes at least 1 member of the\n20\nUnited States tobacco vending machine in-\n21\ndustry;\n22\n(iii) shall be paid an annual salary on\n23\nan individualized basis of $40,000 out of\n24\namounts transferred to the Corporation\n25\nunder paragraph (4) (A);\nO:\\ERN \\ERN98.145\n4\n1\n(iv) shall appoint a President to man-\n2\nage the day-to-day activities of the Cor-\n3\nporation;\n4\n(v) shall develop guidelines by which\n5\nthe President shall direct the Corporation;\n6\n(vi) shall retain a national accounting\n7\nfirm to verify the distribution of funds and\n8\naudit the compensation fund established\n9\nunder paragraph (4);\n10\n(vii) shall retain such legal, manage-\n11\nment, or consulting assistance as is nec-\n12\nessary and proper; and\n13\n(viii) shall periodically report to Con-\n14\ngress regarding the activities of the Cor-\n15\nporation.\n16\n(B) DUTIES OF THE PRESIDENT OF THE\n17\nCORPORATION.-The President of the Corpora-\n18\ntion shall-\n19\n(i) hire appropriate staff;\n20\n(ii) prepare the report of the Board of\n21\nDirectors of the Corporation required\n22\nunder subparagraph (A)(viiii); and\n23\n(iii) oversee Corporation functions, in-\n24\ncluding verification of machines, adminis-\n25\ntration and disbursement of funds, mainte-\nO:\\ERN\n5\n1\nnance of complete records, operation of ap-\n2\npeals procedures, and other directed func-\n3\ntions.\n4\n(4) COMPENSATION FUND.-\n5\n(A) TRANSFER OF FUNDS FROM TOBACCO\n6\nINDUSTRY PAYMENTS.-Not later than 30 days\n7\nafter the date of enactment of this Act, the Sec-\n8\nretary of the Treasury shall transfer to the Cor-\n9\nporation, out of funds paid to the United States\n10\nby the tobacco industry, such sums as are nec-\n11\nessary to make due compensation to owners and\n12\noperators of tobacco vending machines and to\n13\ncarry out the duties of the Corporation. Not\n14\nlater than 1 year after such date, the Secretary\n15\nof the Treasury shall transfer to the Corpora-\n16\ntion out of funds paid to the United States by\n17\nthe tobacco industry, such additional sums as\n18\nmay be necessary for such purposes.\n19\n(B) RULES FOR DISBURSEMENT OF\n20\nFUNDS.-\n21\n(i) PAYMENTS TO OWNERS AND OPER-\n22\nATORS.-The Corporation shall disburse\n23\nfunds to compensate the owners and opera-\n24\ntors of tobacco vending machines in ac-\n25\ncordance with the following:\nO:\\ERN \\EMN98.140\n6\n1\n(I) The fair market value of each\n2\ntobacco vending machine verified by\n3\nthe Corporation President in accord-\n4\nance with subparagraph (C), and\n5\nproven to have been in operation be-\n6\nfore August 10, 1995, shall be dis-\n7\nbursed to the owner of the machine\n8\nseeking compensation.\n9\n(II) No compensation shall be\n10\nmade for a spiral glass front vending\n11\nmachine.\n12\n(ii) OTHER PAYMENTS.-Funds trans-\n13\nferred to the Corporation under subpara-\n14\ngraph (A) may be used to pay the adminis-\n15\ntrative costs of the Corporation that are\n16\nnecessary and proper or required by law.\n17\nThe total amount paid by the Corporation\n18\nfor administrative and overhead costs, in-\n19\ncluding accounting fees, legal fees, consult-\n20\nant fees, and associated administrative\n21\ncosts shall not exceed 5 percent of the total\n22\namount transferred to the Corporation\n23\nunder subparagraph (A).\n24\n(C) VERIFICATION OF VENDING MA-\n25\nCHINES.-Verification of vending machines\n7\n1\nshall be based on copies of official State vend-\n2\ning licenses, company computerized or hand-\n3\nwritten sales records, or physical inspection by\n4\nthe Corporation President or by an inspection\n5\nagent designated by the President. The Cor-\n6\nporation President and the Board of Directors\n7\nof the Corporation shall work vigorously to pre-\n8\nvent and prosecute any fraudulent claims sub-\n9\nmitted for compensation.\n10\n(D) RETURN OF. ACCOUNT FUNDS NOT\n11\nDISTRIBUTED TO VENDORS.-The Corporation\n12\nshall be dissolved on the date that is 4 years\n13\nafter the date of enactment of this Act. Any\n14\nfunds not dispersed or allocated to claims pend-\n15\ning as of that date shall be transferred to a\n16\npublic anti-smoking trust, or used for such\n17\nother purposes as Congress may designate.\n18\n(c) SETTLEMENT OF LEGAL CLAIMS PENDING\n19 AGAINST THE UNITED STATES.-Acceptance of a com-\n20 pensation payment from the Corporation by a vending ma-\n21 chine owner or operator shall settle all pending and future\n22 claims of the owner or operator against the United States\n23 that are based on, or related to, the ban of the use of\n24 tobacco vending machines imposed under this section and\n8\n1 any other laws or regulations that limit the use of tobacco\n2 vending machines.\nAmendment No.\nCalendar No.\nAmendment to Committee Amendment to S. 1415\nPurpose: ensure that manufacturers who are compelled to share technology with\ntheir competitors are compensated fair market value for their property\nIn the Committee on Commerce, Science, and Transportation\nAmendment to be proposed by Mrs. Hutchison\nViz:\nOn page 61, line 15, strike the following:\ncommercially reasonable fee by\nand insert the following:\nfair market value to the owner of the technology and to assess an equitable\nportion of that amount to\nOn page 61, line 18, strike the following:\nto the manufacturer that submits the notice under paragraph (1) for such\ntechnology.\nand insert the following:\n(period)\nFord Amendment #5. Purpose: To strengthen the ban on FDA authority to regulate farms\n(1) On page 26, line 21, INSERT \", tobacco warehouses,\" after the word \"growers\";\n(2) On page 26, on line 22, after \"cooperatives\" but before the period, add the following:\n\", nor shall any employee of the Food and Drug Administration have any authority\nwhatsoever to enter onto a farm owned by a tobacco grower without the written consent\nof such tobacco grower\"; and\n(3) On page 27, STRIKE line 1 beginning with \"The\" through line 5 and INSERT the\nfollowing:\n\"Nothing in this chapter shall be construed to grant the Secretary authority to promulgate\nregulations to any matter that involves the production or tobacco leaf or a producer\nthereof.\"\nO:\\BAI\\BAI98.793\nS.L.C.\nAMENDMENT NO.\nCalendar No.\nPurpose: To codify provisions relating to advertising and\nmarketing.\nIN THE SENATE OF THE UNITED STATES-105th Cong., 2d Sess.\nS.1415\nTo facilitate implementation of the settlement reached be-\ntween the Attorneys General of the several States and\nmanufacturers of tobacco products, and for other pur-\nposes.\nReferred to the Committee on\nand ordered to be printed\nOrdered to lie on the table and to be printed\nAMENDMENT intended to be proposed by Ms. SNOWE\nViz:\n1\nAt the end of title I, add the following:\n2 Subtitle C-Application of Adver-\n3\ntising and Marketing Restric-\n4\ntions\n5 SEC. 131. ADVERTISING PROVISIONS IN PROTOCOL.\n6\n(a) IN GENERAL.-No TOBACCO PRODUCT SHALL BE\n7 SOLD OR DISTRIBUTED IN THE UNITED STATES—\n8\n(1) unless its advertising and labeling (includ-\n9\ning the package)-\nO:\\BAI\\BAI98.793\nS.L.C.\n2\n1\n(A) contain no human image, animal\n2\nimage, or cartoon character;\n3\n(B) are not outdoor advertising, including\n4\nadvertising in enclosed stadia and advertising\n5\nfrom within a retail establishment that is di-\n6\nrected toward or visible from the outside of the\n7\nestablishment;\n8\n(C) are accompanied by a disclaimer in the\n9\nadvertising that words such as \"light\" or \"low\n10\ntar\" describing the product do not render the\n11\nproduct less hazardous than any other tobacco\n12\nproduct, in addition to such other requirements\n13\nas the Secretary may impose;\n14\n(D) at the time the advertising or labeling\n15\nis first used is submitted to the Secretary SO\n16\nthat the Secretary may conduct regular review\n17\nof the advertising and labeling;\n18\n(E) comply with any applicable require-\n19\nment of the Federal Food, Drug, and Cosmetic\n20\nAct and the Federal Cigarette Labeling and\n21\nAdvertising Act;\n22\n(F) do not appear on the international\n23\ncomputer network of both Federal and non-\n24\nFederal interoperable packet switches data net-\n25\nworks (the 'Internet'), unless such advertising\nO:\\BAI\\BAI98.793\nS.L.C.\n3\n1\nis designed to be inaccessible in or from the\n2\nUnited States to all individuals under the age\n3\nof 18 years;\n4\n(G) use only black text on white back-\n5\nground, other than (i) those locations where\n6\nself-service displays are permitted under sub-\n7\nsection (a) (3) of section 545, if the advertising\n8\nis not visible from outside the establishment\n9\nand is affixed to a wall or fixture in the estab-\n10\nlishment, and (ii) advertisements appearing in\n11\nany publication which the manufacturer, dis-\n12\ntributor, or retailer demonstrates to the Sec-\n13\nretary is a newspaper, magazine, periodical, or\n14\nother publication whose readers under the age\n15\nof 18 years constitute 15 percent or less of the\n16\ntotal readership as measured by competent and\n17\nreliable survey evidence, and that is read by less\n18\nthan 2 million persons under the age of 18\n19\nyears as measured by competent and reliable\n20\nsurvey evidence;\n21\n(H) for video formats, use only static black\n22\ntext on a white background, and any accom-\n23\npanying audio uses only words without music or\n24\nsound effects; and\nO:\\BAI\\BAI98.793\nS.L.C.\n4\n1\n(I) for audio formats, use only words with-\n2\nout music or sound effects;\n3\n(2) if a logo, symbol, motto, selling message,\n4\nrecognizable color or pattern of colors, or any other\n5\nindicia of product identification of the tobacco prod-\n6\nuct is contained in a movie, program, or video game\n7\nfor which a direct or indirect payment has been\n8\nmade to ensure its placement;\n9\n(3) if a direct or indirect payment has been\n10\nmade by any manufacturer, distributor, or retailer to\n11\nany entity for the purpose of promoting the image\n12\nor use of a tobacco product through print or film\n13\nmedia that appeals to individuals under the age of\n14\n18 years or through a live performance by an enter-\n15\ntainment artist that appeals to such individuals;\n16\n(4) if a logo, symbol, motto, selling message,\n17\nrecognizable color or pattern of colors, or any other\n18\nindicia or product identification identical to, similar\n19\nto, or identifiable with the tobacco product is used\n20\nfor any item (other than a tobacco product) or serv-\n21\nice marketed, licensed, distributed or sold or caused\n22\nto be marketed, licensed, distributed, or sold by the\n23\nmanufacturer or distributor of the tobacco product;\nO:\\BAI\\BAI98.793\nS.L.C.\n5\n1\n(5) unless its package label and advertising\n2\nbear the product's established name and a statement\n3\nof its intended use, as follows:\n4\n(A) Cigarettes-A Nicotine-Delivery De-\n5\nvice;\n6\n(B) Cigarette Tobacco-A Nicotine Delivery\n7\nDevice; or\n8\n(C) Loose Leaf Chewing Tobacco, Plug\n9\nChewing Tobacco, Twist Chewing Tobacco,\n10\nMoist Snuff, or Dry Snuff, whichever is appro-\n11\npriate for the product, followed by the words \"A\n12\nNicotine-Delivery Device\";\n13\n(6)(A) except as provided in subparagraph (B),\n14\nif advertising or labeling for such product that is\n15\notherwise in accordance with the requirements of\n16\nthis section bears a tobacco product brand name\n17\n(alone or in conjunction with any other word) or any\n18\nother indicia of tobacco product identification and is\n19\ndisseminated in a medium other than newspapers,\n20\nmagazines, periodicals or other publications (whether\n21\nperiodic or limited distribution), nonpoint-of-sale\n22\npromotional material (including direct mail), point-\n23\nof-sale promotional material, or audio or video for-\n24\nmats delivered at a point-of-sale; but\nO:\\BAI\\BAI98.793\nS.L.C.\n6\n1\n(B) notwithstanding subparagraph (A), adver-\n2\ntising or labeling for cigarettes or smokeless tobacco\n3\nmay be disseminated in a medium that is not speci-\n4\nfied in paragraph (1) if the manufacturer, distribu-\n5\ntor, or retailer notifies the Secretary not later than\n6\n30 days prior to the use of such medium, and the\n7\nnotice describes the medium and the extent to which\n8\nthe advertising or labeling may be seen by persons\n9\nunder the age of 18 years.\n10\n(b) COLOR PRINT ADS ON MAGAZINES.-No tobacco\n11 product may be sold or distributed in the United States\n12 unless advertising for that product appears in other than\n13 any color, or combination of colors, on the outside back\n14 cover of a magazine the readership of which, as deter-\n15 mined by the Secretary, consists primarily of individuals\n16 who are 18 years of age or older.\n17 SEC. 132. POINT-OF-SALE RESTRICTIONS.\n18\n(a) IN GENERAL.-Except as provided in subsection\n19 (b), no manufacturer, distributor, or retailer shall engage\n20 in point-of-sale advertising of any tobacco product in any\n21 retail establishment (other than an establishment that\n22 sells only tobacco products) in which an individual under\n23 the age of 18 years of age is present, or permitted to enter,\n24 at any time.\n25\n(b) EXCEPTION.-\nO:\\BAI\\BAI98.793\nS.L.C.\n7\n1\n(1) IN GENERAL.-A retailer may place 1 point-\n2\nof-sale advertisement in or at each such location for\n3\nits brand or the contracted house retailer or private\n4\nlabel brand of its wholesaler.\n5\n(2) DISPLAY AREA.-The display area of any\n6\nsuch point-of-sale advertisement (either individually\n7\nor in the aggregate) shall not be larger than 576\n8\nsquare inches and shall consist of black letters on\n9\nwhite background or another recognized typography.\n10\n(3) LIMITATION.-Any such point-of-sale adver-\n11\ntisement shall not be attached to or located within\n12\n2 feet of any display fixture on which candy is dis-\n13\nplayed for sale.\n14\n(c) AUDIO AND VIDEO.-Any audio or video format\n15 permitted under regulations promulgated by the Secretary\n16 may be distributed at the time of sale of a tobacco product\n17 to individuals over the age of 18 years, but no such format\n18 may be played or shown in or at any location where to-\n19 bacco products are offered for sale.\n20\n(d)\nPROHIBITION\nON\nLIMITATION\n21 ARRNAGEMENTS.-No manufacturer or distributor of to-\n22 bacco products may enter into any arrangement with a\n23 retailer that limits the retailer's ability to display any form\n24 of advertising or promotional material originating with an-\nO:\\BAI\\BAI98.793\nS.L.C.\n8\n1 other supplier and permitted by law to be displayed in a\n2 retail establishment.\n3\n(e) DEFINITION.-As used in this section, the terms\n4 \"point-of-sale advertisement\" and \"point-of-sale advertis-\n5 ing\" mean all printed or graphical materials bearing the\n6 brand name (alone or in conjunction with any other word),\n7 logo, symbol, motto, selling message, or any other indicia\n8 of product identification identical or similar to, or identifi-\n9 able with, those used for any brand of cigarettes or smoke-\n10 less tobacco, which, when used for its intended purpose,\n11 can reasonably be anticipated to be seen by customers at\n12 a location where tobacco products are offered for sale.\n13 SEC. 133. SUNSET PROVISION.\n14\nThe provisions of this subtitle shall cease to apply\n15 beginning on the date on which all tobacco manufacturers\n16 to which this Act applies have entered into the Protocol.\nA:\\FRIST.1\nApproved -voice vote\nAMENDMENT NO.\nCAL. NO.\n[STAFF WORKING DRAFT]\nMarch 31, 1998\nCOMMITTEE AMENDMENT\nPurpose: To establish a compliance bonus fund for States\nand retailers.\nIN THE COMMITTEE ON COMMERCE, SCIENCE, AND\nTRANSPORTATION-105TH Cong., 2D Sess.\nS. 1415, 105TH Congress, 2D Session\nAPRIL 1, 1998\nINTENDED to be proposed by Mr. FRIST\nViz:\n1\nOn page 108, line 12, strike \"10\" and insert \"5\".\n2\nOn page 108, line 15, strike \"10\" and insert \"5\".\n3\nOn page 108, between lines 23 and 24, insert the fol-\n4 lowing:\n5\n(3) The Secretary shall retain 5 percent of all\n6\npenalties paid and not refunded and credit that\n7\namount to the Compliance Bonus Account for States\n8\nand Retailers.\n9\nOn page 119, beginning with line 21 and strike\n10 through line 17 on page 126, and insert the following:\nA:\\FRIST.1\n2\n1 SEC. 211. COMPLIANCE BONUS FUND.\n2\n(a) ESTABLISHMENT.THERE IS ESTABLISHED WITH-\n3 IN THE NATIONAL TOBACCO SETTLEMENT TRUST FUND\n4 ESTABLISHED BY SECTION 401 A SEPARATE ACCOUNT TO\n5 BE KNOWN AS THE COMPLIANCE BONUS ACCOUNT FOR\n6 STATES AND RETAILERS.\n7\n(b) CREDITS TO ACCOUNT.-For each fiscal year\n8 there shall be credited to the Account an amount equal\n9 to—\n10\n(1) 5 percent of the amounts available for ex-\n11\npenditure or obligation under section 202; and\n12\n(2) any amounts returned under section 213 as\n13\npenalty payments.\n14 SEC 212. BLOCK GRANTS.\n15\n(a) IN GENERAL.-The Secretary shall award block\n16 grants to States determined to be eligible under subsection\n17 (b).\n18\n(b) ELIGIBLE STATES.-To be eligible to receive a\n19 grant under subsection (a), a State shall-\n20\n(1) prepare and submit to the Secretary an ap-\n21\nplication, at such time, in such manner, and contain-\n22\ning such information as the Secretary may require;\n23\nand\n24\n(2) with respect to the year involved, dem-\n25\nonstrate to the satisfaction of the Secretary that\n26\nfewer than 5 percent of all individuals under 18\nS. 1415 Amdt.\nA:\\FRIST.1\n3\n1\nyears of age who attempt to purchase tobacco prod-\n2\nucts in the State in such year are successful in such\n3\npurchase.\n4\n(c) PAYOUT; USE OF FUNDS.-\n5\n(1) ANNUAL DISTRIBUTION.-For each fiscal\n6\nyear in which one or more States is eligible to re-\n7\nceive a grant under this section, the Secretary shall\n8\npay out the balance in the account established under\n9\nsection 211(a) as of the end of the preceding fiscal\n10\nyear.\n11\n(2) PAYMENT TO STATE.-If more than one\n12\nState is eligible to receive a grant under this section\n13\nfor any fiscal year, the amount payable for that fis-\n14\ncal year shall be apportioned among such eligible\n15\nStates on the basis of population.\n16\n(3) USE OF FUNDS.-Each State that receives\n17\na grant under this section shall distribute half of the\n18\namount received among retail outlets of tobacco\n19\nproducts that, for fiscal year for which the State met\n20\nthe requirements of subsection (b), have outstanding\n21\nrecords of compliance with the restrictions on under-\n22\nage sales of tobacco products.\n23\nSEC. 213. STATE ENFORCEMENT INCENTIVES.\n24\n(a) IN GENERAL.-\nS. 1415 Amdt.\nA:\\FRIST.1\n4\n1\n(1) ACTIVITIES AND REPORTS REGARDING EN-\n2\nFORCEMENT.-A State shall-\n3\n(A) conduct monthly random, unannounced\n4\ninspections of sales or distribution outlets in the\n5\nState to ensure compliance with a law prohibit-\n6\ning sales of tobacco products to individuals\n7\nunder 18 years of age;\n8\n(B) annually submit to the Secretary a re-\n9\nport describing-\n10\n(i) the activities carried out by the\n11\nState to enforce underage access laws dur-\n12\ning the fiscal year; and\n13\n(ii) the extent of success the State has\n14\nachieved in reducing the availability of to-\n15\nbacco products to individuals under the\n16\nage of 18 years; and\n17\n(C) (i) a detailed description of how the in-\n18\nspections described in subparagraph (A) were\n19\nconducted and the methods used to identify\n20\noutlets, with appropriate protection for the con-\n21\nfidentiality of information regarding the timing\n22\nof inspections and other investigative techniques\n23\nwhose effectiveness depends on continued con-\n24\nfidentiality;\nS. 1415 Amdt.\nA:\\FRIST.1\n5\n1\n(ii) the identity of the single State agency\n2\ndesignated by the Governor of the State to be\n3\nresponsible for the implementation of the re-\n4\nquirements of this section.\n5\n(2) MINIMUM INSPECTION SCHEDULE.-In\n6\norder to meet the requirements of paragraph (1)(A),\n7\ninspections conducted by the State shall include at\n8\nleast 250 random, unannounced inspections of retail\n9\nsale outlets annually for each 1,000,000 persons\n10\nresident in the State, as most recently determined by\n11\nthe Bureau of the Census. Such inspections shall\n12\ncover a range of outlets (not preselected on the basis\n13\nof prior violations) to measure overall levels of com-\n14\npliance as well as to identify violations, and shall be\n15\nconducted to provide a probability sample of outlets.\n16\nThe sample must reflect the distribution of the pop-\n17\nulation under the age of 18 years throughout the\n18\nState and the distribution of the outlets throughout\n19\nthe State accessible to youth. Indian tribes shall con-\n20\nduct such inspections monthly of at least 1 retail\n21\noutlet subject to their jurisdiction for each 4,000\n22\nreservation residents. Except as provided in this\n23\nparagraph, any reports required by this paragraph\n24\nshall be made public. As used in this paragraph, the\n25\nterm \"outlet\" refers to any location that sells at re-\nS. 1415 Amdt.\nA:\\FRIST.1\n6\n1\ntail or otherwise distributes tobacco products to con-\n2\nsumers, including to locations that sell such prod-\n3\nucts over-the-counter.\n4\n(b) NONCOMPLIANCE.-The Secretary shall withhold\n5 from any State that fails to meet the requirements of sub-\n6 section (a) or to demonstrate a compliance rate of-\n7\n(1) at least 75 percent in the fifth and sixth fis-\n8\ncal years after the date of enactment of the Tobacco\n9\nProducts Control Act of 1998;\n10\n(2) at least 85 percent in the seventh, eighth,\n11\nand ninth fiscal years after such date; and\n12\n(3) at least 90 percent in every fiscal year be-\n13\nginning with the tenth fiscal year after such date,\n14 an amount equal to 5 percent of all amounts otherwise\n15 payable under section 202 (e) to any State for that fiscal\n16 year.\n17\n(c) DEFINITION.-For the purposes of this section,\n18 the term \"first applicable fiscal year\" means the first fis-\n19 cal year beginning after the fiscal year in which funding\n20 is made available to the States under this section.\n21\n(f) RELEASE AND DISBURSEMENT.-\n22\n(1) Upon notice from the Secretary that an\n23\namount payable under section 202(e) has been or-\n24\ndered withheld under subsection (b), a State may pe-\n25\ntition the Secretary for a release and disbursement\nS. 1415 Amdt.\nA:\\FRIST.1\n7\n1\nof up to 75 percent of the amount withheld, and\n2\nshall give timely written notice of such petition to\n3\nthe attorney general of that State and to all tobacco\n4\nproduct manufacturers.\n5\n(2) The agency shall conduct a hearing on such\n6\na petition, in which the attorney general of the State\n7\nand tobacco product manufacturers may participate\n8\nand be heard.\n9\n(3) The burden shall be on the State to prove,\n10\nby a preponderance of the evidence, that the release\n11\nand disbursement should be made. The Secretary's\n12\ndecision on whether to grant such a release, and the\n13\namount of any such disbursement, shall be based on\n14\nwhether-\n15\n(A) the State has acted in good faith and\n16\nin full compliance with this Act, and any rules\n17\nor regulations promulgated under this Act;\n18\n(B) the State has pursued all reasonably\n19\navailable measures to attain the compliance\n20\nrates and required percentage reductions appli-\n21\ncable in the year for which the release is being\n22\nsought;\n23\n(C) there is evidence of any direct or indi-\n24\nrect action by the State to undermine the\n25\nachievement of the compliance rates, the re-\nS. 1415 Amdt.\nA:\\FRIST.1\n8\n1\nquired percentage reductions, or other terms\n2\nand objectives of this Act or the Tobacco Prod-\n3\nucts Control Act of 1998; and\n4\n(D) any other relevant evidence.\n5\n(4) A State shall be entitled to interest on any\n6\nwithheld amount released at the average United\n7\nStates 52-Week Treasury Bill rate for the period be-\n8\ntween the withholding of the amount and its release.\n9\n(5) Any State attorney general or tobacco product\n10\nmanufacturer aggrieved by a final decision on a peti-\n11\ntion filed under this subsection may seek judicial re-\n12\nview of such decision within 30 days in the United\n13\nStates Court of Appeals for the District of Columbia\n14\nCircuit. Unless otherwise specified in this Act, judi-\n15\ncial review under this section shall be governed by\n16\nsections 701 through 706 of title 5, United States\n17\nCode.\n18\n(6) No stay or other injunctive relief enjoining\n19\na reduction in a State's allotment pending appeal or\n20\notherwise may be granted by the Secretary or any\n21\ncourt.\n22 SEC. 214. CONFORMING CHANGE.\n23\nSection 1926 of the Public Health Service Act (42\n24 U.S.C. 300x-26) is hereby repealed.\no\nS. 1415 Amdt.\nSet aside\nFord Amendment #14. Purpose: To strike brand-specific penalties, which impose absurd\npenalties on manufacturers of brands with de minimus youth market shares\n(1) On page 110, line 5 through page 115, line 11, strike all of section 203; and\n(2) On page 115, line 12, strike \"204\" and insert \"203\"\nAccepted voice vote\nFord Amendment #16. Purpose: To clarify chart on p.104 to read \"Required percentage\nreduction as a percentage of base incidence percentage in Underage Smokeless Tobacco Use\"\nOn page 104, in the chart appearing at the top of the page, strike \"Required Percentage\nReduction in Underage Smokeless Tobacco Use\" from the heading of the right column of such\nchart, and insert the following: \"Required Percentage Reduction as a Percentage of Base\nIncidence Percentage in Underage Smokeless Tobacco Use\"\nO:\\BAI\\BAI98.829\nS.L C.\nAMENDMENT NO.\nCalendar No.\nPurpose: To modify provisions relating to required reductions\nin the underage use of tobacco products.\nIN THE SENATE OF THE UNITED STATES-105th Cong., 2d Sess.\nS. 1415\nTo facilitate implementation of the settlement reached be-\ntween the Attorneys General of the several States and\nmanufacturers of tobacco products, and for other pur-\nposes.\nReferred to the Committee on\nand ordered to be printed\nOrdered to lie on the table and to be printed\nAMENDMENT intended to be proposed by Mr. WYDEN\nViz:\n1\nStrike subtitle A of title II and insert the following:\n2 Subtitle A-Reduction in Underage\n3\nTobacco Use\n4 SEC. 201. PURPOSE.\n5\nIt is the purpose of this subtitle to encourage the\n6 achievement of reductions in the number of underage con-\n7 sumers of tobacco products through the imposition of ad-\n8 ditional financial deterrents relating to tobacco products\n9 if certain underage tobacco-use reduction targets are not\n10 met.\nO:\\BAI\\BAI98.829\nS.L.C.\n2\n1 SEC. 202. CHILD TOBACCO USE SURVEYS.\n2\n(a) ANNUAL PERFORMANCE SURVEY.-Not later\n3 than 1 year after the date of the enactment of this title\n4 and annually thereafter the Secretary shall conduct a sur-\n5 vey to determine the number of children including minor-\n6 ity children who used each manufacturer's tobacco prod-\n7 ucts within the past 30 days.\n8\n(b) EXCLUSION OF CERTAIN AGES.-The Secretary\n9 may exclude from the survey conducted under subsection\n10 (a), children under the age of 12 years (or such other less-\n11 er age as the Secretary may establish) to strengthen the\n12 validity of the survey.\n13\n(c) BASELINE LEVEL.-The baseline level of the child\n14 tobacco product use of a manufacturer (referred to in this\n15 subtitle as the \"baseline level\") is the number of children\n16 determined to have used the tobacco products of such\n17 manufacturer in the first annual performance survey for\n18 1999.\n19\n(d) ADDITIONAL MEASURES.-In order to increase\n20 the understanding of youth tobacco product use, the Sec-\n21 retary may, for informational purposes only, add addi-\n22 tional measures to the survey under subsection (a), con-\n23 duct periodic or occasional surveys at other times, and\n24 conduct surveys of other populations such as young adults.\n25 The results of such surveys shall be made available to\nO:\\BAI\\BAI98.829\nS.L.C.\n3\n1 manufacturers and the public to assist in efforts to reduce\n2 youth tobacco use.\n3\n(e) DEFINITION.-As used in this subtitle, the term\n4 \"tobacco product\" means cigarettes, smokeless tobacco\n5 products, cigars, and roll-your-own tobacco products.\n6 SEC. 203. REDUCTION IN UNDERAGE TOBACCO PRODUCT\n7\nUSAGE.\n8\n(a) STANDARDS FOR EXISTING MANUFACTURERS.-\n9 Each manufacturer which manufactured a tobacco prod-\n10 uct on or before the date of the enactment of this title\n11 shall reduce the number of children including minority\n12 children who use its tobacco products SO that the number\n13 of overall children determined to have used its tobacco\n14 products on the basis of-\n15\n(1) the third annual performance survey is\n16\nequal to or less than—\n17\n(A) 70 percent of the manufacturer's base-\n18\nline level; or\n19\n(B) the de minimis level;\n20\nwhichever is greater;\n21\n(2) the fourth annual performance survey is\n22\nequal to or less than-\n11\n23\n(A) 60 percent of the manufacturer's base-\n24\nline level; or\n25\n(B) the de minimis level;\nO:\\BAI\\BAI98.829\nS.L.C\n4\n1\nwhichever is greater;\n2\n(3) the fifth annual performance survey is equal\n3\nto or less than-\n4\n(A) 50 percent of the manufacturer's base-\n5\nline level; or\n6\n(B) the de minimis level;\n7\nwhichever is greater;\n8\n(4) the sixth annual performance survey is\n9\nequal to or less than-\n10\n(A) 40 percent of the manufacturer's base-\n11\nline level; or\n12\n(B) the de minimis level;\n13\nwhichever is greater;\n14\n(5) the seventh annual performance survey is\n15\nequal to or less than-\n16\n(A) 35 percent of the manufacturer's base-\n17\nline level; or\n18\n(B) the de minimis level;\n19\nwhichever is greater;\n20\n(6) the eighth annual performance survey is\n21\nequal to or less than—\n22\n(A) 30 percent of the manufacturer's base-\n23\nline level; or\n24\n(B) the de minimis level;\n25\nwhichever is greater;\nO:\\BAI\\BAI98.829\nS.L.C.\n5\n1\n(7) the ninth annual performance survey is\n2\nequal to or less than-\n3\n(A) 25 percent of the manufacturer's base-\n4\nline level; or\n5\n(B) the de minimis level;\n6\nwhichever is greater; and\n7\n(8) the 10th annual performance survey and\n8\neach annual performance survey conducted there-\n9\nafter is equal to or less than-\n10\n(A) 20 percent of the manufacturer's base-\n11\nline level; or\n12\n(B) the de minimis level;\n13\nwhichever is greater.\n14\n(b) STANDARDS FOR NEW MANUFACTURERS.-Any\n15 manufacturer of a tobacco product which begins to manu-\n16 facture a tobacco product after the date of the enactment\n17 of this title shall ensure that the number of children deter-\n18 mined to have used the manufacturer's tobacco products\n19 in each annual performance survey conducted after the\n20 manufacturer begins to manufacture tobacco products is\n21 equal to or less than the de minimis level.\n22\n(c) DE MINIMIS LEVEL.-The de minimis level shall\n23 be 0.5 percent of the total number of children determined\n24 to have used tobacco products in the first annual perform-\n25 ance survey.\nO:\\BAI\\BAI98.829\nS.L.C.\n6\n1\nSEC. 204. NONCOMPLIANCE.\n2\n(a) VIOLATION OF STANDARD.-If, with respect to a\n3 year, a manufacturer of a tobacco product fails to comply\n4 with the required reduction under section 203(a), the\n5 manufacturer shall pay to the Secretary a noncompliance\n6 fee for each unit of tobacco products manufactured by the\n7 manufacturer which is distributed for consumer use in the\n8 year following the year in which the noncompliance occurs,\n9 in the amount specified in subsection (b).\n10\n(b) NONCOMPLIANCE FEE PER UNIT.-\n11\n(1) IN GENERAL.-With respect to a year, a\n12\nmanufacturer of a tobacco product shall be required\n13\nto pay a noncompliance fee for each unit of tobacco\n14\nproducts manufactured by the manufacturer if the\n15\nnoncompliance factor of the manufacturer (as deter-\n16\nmined under paragraph (3)) for the year is greater\n17\nthan zero.\n18\n(2) AMOUNT OF FEE.-The amount of the non-\n19\ncompliance fee that is required to be paid by a man-\n20\nufacturer under this section for each unit of tobacco\n21\nproducts manufactured by the manufacturer for the\n22\nyear involved shall be equal to-\n\"\n23\n(A) 2 cents multiplied by SO much of the\n24\nnoncompliance factor as does not exceed 5;\nO:\\BAI\\BAI98.829\nS.L.C.\n7\n1\n(B) 3 cents multiplied by SO much of the\n2\nnoncompliance factor as exceeds 5 but does not\n3\nexceed 10;\n4\n(C) 4 cents multiplied by SO much of the\n5\nnoncompliance factor as exceeds 10 but does\n6\nnot exceed 15;\n7\n(D) 5 cents multiplied by SO much of the\n8\nnoncompliance factor as exceeds 15 but does\n9\nnot exceed 20; and\n10\n(E) 6 cents multiplied by SO much of the\n11\nnoncompliance factor as exceeds 20 but does\n12\nnot exceed 25.\n13\n(3) NONCOMPLIANCE FACTOR.-The noncompli-\n14\nance factor of a manufacturer shall be equal to 100\n15\nmultiplied by the noncompliance percentage of the\n16\nmanufacturer (as determined under paragraph (4)).\n17\n(4) NONCOMPLIANCE PERCENTAGE.-The non-\n18\ncompliance percentage (if any) of a manufacturer\n19\nshall be equal to 1 less the ratio of-\n20\n(A) the actual reduction that is achieved\n21\nby the manufacturer in the number of children\n22\nwho use the manufacturer's tobacco products in\n23\nthe year involved; and\nO:\\BAI\\BAI98.829\nS.L.C.\n8\n1\n(B) the reduction required under section\n2\n203(a) in the number of children who use the\n3\nmanufacturer's tobacco products for the year.\n4\n(c) NONCOMPLIANCE FEES FOR CONSECUTIVE VIO-\n5 LATIONS.-If a manufacturer of a tobacco product fails\n6 to comply with the required reduction under section\n7 203(a) in 2 or more consecutive years, the noncompliance\n8 fee that is required to be paid by the manufacturer under\n9 this section for each unit of tobacco products manufac-\n10 tured by such manufacturer which is distributed for\n11 consumer use in the year following the year in which the\n12 noncompliance occurs, shall be the amount determined\n13 under subsection (b) for the year multiplied by the number\n14 of consecutive years in which the manufacturer has failed\n15 to comply with such required reductions.\n16\n(d) PROHIBITION ON SINGLE-PACK SALES IN CASES\n17 OF REPEATED NONCOMPLIANCE.-Not later than 1 year\n18 after the date of enactment of this title, the Secretary\n19 shall establish regulations to prohibit the sale of single\n20 packs of a manufacturer's tobacco products in cases of\n21 repeated noncompliance with the reductions required\n22 under section 203(a). Such regulations shall require that,\n23 if a manufacturer fails to comply with such reductions in\n24 3 or more consecutive years, the manufacturer's tobacco\n25 products may be sold in the following year only in pack-\nO:\\BAI\\BAI98.829\nS.L.C.\n9\n1 ages containing not less than 10 units of the product per\n2 package (200 cigarettes per package in the case of ciga-\n3 rettes, and a corresponding package size for other tobacco\n4 products).\n5\n(e) REQUIRED GENERIC PACKAGING IN SEVERE\n6 CASES OF REPEATED NONCOMPLIANCE.-Not later than\n7 1 year after the date of enactment of this title, the Sec-\n8 retary shall establish regulations to require units and\n9 packages of a manufacturer's tobacco products to have ge-\n10 neric packaging in severe cases of repeated noncompliance\n11 with the reductions required under section 203(a). Such\n12 regulations shall require that, if a manufacturer fails to\n13 comply with such reductions in 4 or more consecutive\n14 years, the manufacturer's tobacco products may be sold\n15 in the following year only in units and packages whose\n16 packaging contains no external images, logos, or text\n17 (other than any required labels), except that the brand\n18 name and the identifier 'tobacco' may appear on the pack-\n19 aging in block lettering in black type on a white back-\n20 ground.\n21\n(f) PAYMENT.-The noncompliance fee to be paid by\n22 a manufacturer under this section shall be paid on-a quar-\n23 terly basis, with payments due not later than 30 days after\n24 the end of each calendar quarter.\nO:\\BAI\\BAI98.829\nS.L.C\n10\n1\nSEC. 205. USE OF AMOUNTS.\n2\nAmounts received under section 204 shall be used as\n3 the Secretary determines appropriate to further the pur-\n4 poses of this Act.\n5 SEC. 206. MISCELLANEOUS PROVISIONS.\n6\n(a) JUDICIAL REVIEW.-A manufacturer of tobacco\n7 products may seek judicial review of any action under this\n8 subtitle only after a noncompliance fee has been assessed\n9 and paid by the manufacturer and only in the United\n10 States District Court for the District of Columbia. In an\n11 action by a manufacturer seeking judicial review of an an-\n12 nual performance survey, the manufacturer may prevail-\n13\n(1) only if the manufacturer shows that the re-\n14\nsults of the performance survey were arbitrary and\n15\ncapricious; and\n16\n(2) only to the extent that the manufacturer\n17\nshows that it would have been required to pay a less-\n18\ner noncompliance fee if the results of the perform-\n19\nance survey were not arbitrary and capricious.\n20\n(b) PASS-THROUGH.-Nothing in this subtitle shall\n21 be construed as prohibiting a manufacturer from passing\n22 the costs of the amount of any noncompliance fee assessed\n23 under this subtitle on to consumers of tobacco products\n24 as a further economic deterrent to the use of such prod-\n25 ucts.\nO:\\BAI\\BAI98.829\nS.L.C.\n11\n1\n(c) PROHIBITION.-No stay or other injunctive relief\n2 may be granted by the Secretary or any court that has\n3 the effect of enjoining the imposition and collection of non-\n4 compliance fees to be applied under this section.\n5\n(d) CHILD.-As used in this subtitle, the term 'child'\n6 means, except as provided in section 202(b), an individual\n7 who is under the age of 18.\n8\n(e) TREATMENT OF SURCHARGE PAYMENTS.-The\n9 payment of assessments under this subtitle shall be con-\n10 sidered the payment of a fine or similar penalty to the\n11 Federal government for the violation of a law and shall\n12 not be considered to be an ordinary and necessary expense\n13 in carrying on a trade or business.\nO:\\MAT\\MAT98.270\nS.L.C.\nwithhaum\nAMENDMENT NO.\nCalendar No.\nPurpose: To transfer certain settlement proceeds to the Black\nLung Disability Trust Fund, and for other purposes.\nIN THE SENATE OF THE UNITED STATES-105th Cong., 2d Sess.\nS.1415\nTo facilitate implementation of the settlement reached be-\ntween the Attorneys General of the several States and\nmanufacturers of tobacco products, and for other pur-\nposes.\nReferred to the Committee on\nand ordered to be printed\nOrdered to lie on the table and to be printed\nAMENDMENT intended to be proposed by Mr. BURNS\nViz:\n1\nAt the end of title IV add the following:\n2 SEC. 411. TRANSFER OF CERTAIN SETTLEMENT PROCEEDS\n3\nTO BLACK LUNG DISABILITY TRUST FUND.\n4\n(a) IN GENERAL.-Section 9501(b) of the Internal\n5 Revenue Code of 1986 (relating to relating to transfer of\n6 certain taxes; other receipts) is amended by adding at the\n7 end the following:\n8\n\"(3) TRANSFERS FROM NATIONAL TOBACCO\n9\nSETTLEMENT TRUST FUND.-There are hereby\n10\ntransferred to the Black Lung Disability Trust\nO:\\MAT\\MAT98.270\nS.L.C.\n2\n1\nFund such sums as are necessary from the National\n2\nTobacco Settlement Trust Fund equal to the excess\n3\nof-\n4\n\"(A) the expenditures from the Black\n5\nLung Disability Trust Fund, over\n6\n\"(B) the amounts appropriated or credited\n7\nto such Trust Fund under paragraphs (1) and\n8\n(2)\n9\n(b) ELIMINATION OF EXCISE TAX ON COAL TRANS-\n10 FERRED TO BLACK LUNG DISABILITY TRUST FUND.-\n11\n(1) TERMINATION OF TAX.-Subsection (e) of\n12\nsection 4121 of the Internal Revenue Code of 1986\n13\n(relating to imposition of tax) is amended to read as\n14\nfollows:\n15\n\"(e) TERMINATION.-The tax imposed by this section\n16 shall apply during periods before the date which is 30 days\n17 after the date of the enactment of the Tobacco Products\n18 Control Act of 1998.\n19\n(2) ELIMINATION OF TRANSFER.-Section\n20\n9501(b)(1) of such Code (relating to transfer to\n21\nBlack Lung Disability Trust Fund of amounts\n22\nequivalent to certain taxes) is amended by striking\n23\n\"section 4121 or\".\n24\n(c) TERMINATION OF NEW REPAYABLE AD-\n25 VANCES.-Section 9501(c) of the Internal Revenue Code\nO:\\MAT\\MAT98.270\nS.L.C.\n3\n1 of 1986 (relating to repayable advances) is amended by\n2 adding at the end the following:\n3\n\"(4) TERMINATION.-The authorization with\n4\nrespect to repayable advances described in para-\n5\ngraph (1) shall not apply after the date which is 30\n6\ndays after the date of the enactment of the Tobacco\n7\nProducts Control Act of 1998.\n8\n(d) EFFECTIVE DATE.-The amendments made by\n9 this section shall take effect on the date which is 30 days\n10 after the date of the enactment of the Tobacco Products\n11 Control Act of 1998.\nApprove voice vote\nknowe\nSEC.1181.SENSE OF THE SENATE\nIt is the Sense of the Senate that the proceeds of this Act may be used for purposes\nincluding, but not limited to -\n(1) reimbursing public health care financing programs for tobacco-related costs,\nincluding Medicare;\n(2) supporting tobacco use prevention and cessation, particularly with respect to\nyouth, including counter-advertising at the Federal, State, Tribal, and local level;\n(3) supporting tobacco-related health research activities;\n(4) assisting tobacco farmers and tobacco dependent communities;\n(5) creating and fully and adequately funding a Tobacco Asbestos Trust to assist\nvictims of the unique harm that smoking causes to asbestos workers;\n(6) settling with and reimbursing States for tobacco-related health care costs and\ndamages, including Medicaid; and,\n(7) providing funding for the federal Black Lung Program.\n(8) Child came development\nWhere's Kerny's child care?\nVets\nClinical hials\nchild medicaid eligibility\nLaid aride\nAmendment No.\nCalendar No.\nAmendment to Committee Amendment to S. 1415\nPurpose: To ensure that funds distributed to states by this Act are expended in accordance\nwith state law and processes.\nIn the Committee on Commerce, Science, and Transportation\nAmendment to be proposed by Mrs. Hutchison\nViz:\nOn page\n, line\n, insert the following:\nIn the event any funds from this Act are received by a state under this Act, such funds shall\nbe subject to appropriations as determined by state law.\nI\n-\nF6654 180 FILENAME\nI81DISCUSSION DRAFT\nI81CONFIDENTIAL DRAFT_\n182S.L.C.\nI38AMENDMENT NO. G7 T2XX G1 T1\n136 Calendar No. G7 T2XX G1 T1\nI39 Purpose: To provide uniform standards for the awarding of compensatory and punitive\ndamages in a civil action against a volunteer or volunteer service organization, and for\nother purposes.\n145IN THE SENATE OF THE UNITED STATES_105th Cong., 2d Sess.\n143s 1415\nI43S. RES.\nI43S. CON. RES.\n-\nI43S. J. RES.\n177 TITLE To reform and restructure the processes by which tobacco products are\nmanufactured, marketed, and distributed, to prevent the use of tobacco products by\nminors, to redress the adverse health effects of tobacco use, and for other purposes.\nS6652 146 T1 (no.) K G7 T2XXXX G1 T1\n187 (title) L 187 L 187 L 187 L 187\nS6654 146 DATELINE\n177Referred to the Committee on G7 T2XXXXXXXXXXXXX G1 T1 and ordered to be\nprinted\n177Ordered to lie on the table and to be printed\n155 4Amendment In the Nature of a Substitute Kintended to be proposed by\nSPONSOR Mr. T4Ashcroft K to the amendment (No. G7 T2XX K) proposed by\n-\nG7 T2XXXXXXXXX G1 T1 _to the Committee amendment_\n155Viz:\nS6201 I20 At the appropriate place, insert the following:\nI72SEC. G7 T2XX K T2. LIABILITY REFORM FOR VOLUNTEER SERVICE\nORGANIZATIONS.\n120 (a) T4Findings and Purposes K.\n122 (1) T4Findings K. Congress finds that\n124 (A) the increasingly litigious nature of the legal profession in the United States has\ncreated an unnecessary and ultimately harmful barrier between the traditional desire of\nindividuals to help other individuals and their ability to act on those desires;\n124 (B) the cost of lawsuits, excessive, unpredictable, and often arbitrary damage\nawards, and unfair allocations of liability have a direct and chilling effect on the spirit of\nvolunteerism and the provision of charitable service in the United States;\n124 (C) arbitrary and capricious damage awards against charitable institutions have\ncontributed considerably to the high cost of liability insurance, making it difficult and\noften impossible for volunteer service organizations to be protected from liability as\nmany volunteer service organizations serve the public without regard to receiving any\npersonal or institutional economic benefits from that service;\n124 (D) as a result, volunteer service organizations throughout the United States have\nbeen adversely affected and often debilitated;\n124 (E) without a resurgence in volunteerism, the essential services that volunteer\nservice organizations provide, including crisis counseling, volunteer rescue services,\ncoaches and referees for sports activities of children, and support for the elderly, will\ncontinue to diminish;\n124 (F) clarifying and limiting the personal liability risks assumed by individuals and\ninstitutions who volunteer to help others without benefit to themselves is an appropriate\nsubject for Federal legislation because\n126 (i) of the national scope of the problems created by the legitimate fears about\nfrivolous, arbitrary, or capricious lawsuits;\n126 (ii) the citizens of the United States depend on, and the Federal Government\nexpends funds on, numerous social programs that depend on the services of volunteers\nservice organizations; and\nI26 (iii) it is in the interest of the Federal Government to encourage the continued\noperation of volunteer service organizations and contributions of volunteers because\nthe Federal Government lacks the capacity to carry out all of the services provided by\nsuch organizations; and\nS6201 I24 (G) liability reform for volunteer service organizations will promote the free\nflow of goods and services, lessen burdens on interstate commerce and uphold\nconstitutionally protected due process rights and that liability reform is thus an\nappropriate use of the powers contained in article I, section 8, clause 3 of the United\nStates Constitution, and the fourteenth amendment to the United States Constitution.\n122 (2) Purposes K. The purposes of this section are to provide protection from\npersonal financial liability for volunteer service organizations that provide volunteer\nservices that are conducted in good faith\n124 (A) to promote the interests of social service program beneficiaries and taxpayers;\n124 (B) to sustain the availability of programs, volunteer service organizations, and\ngovernmental entities that depend on volunteer contributions and services; and\nI24 (C) to provide the protection by\n126 (i) placing reasonable limits on punitive damages;\nI26 (ii) ensuring the fair allocation of liability in certain civil actions; and\n126 (iii) establishing greater fairness, rationality, and predictability in the civil justice\nsystem of the United States.\n120 (b) T4Definitions K. In this section:\n122 (1) Claimant K.\nI24 (A) T4ln general K. The term ``claimant\" means any person who asserts a claim\nfor damages in an action covered by this section and any person on whose behalf such\na claim is asserted.\nI24 (B) Claimants for certain claims K. If a claim described in subparagraph (A)\nis asserted through or on behalf of\nI26 (i) an estate, the term includes the claimant's decedent; or\n126 (ii) a minor or incompetent, the term includes the claimant's legal guardian.\nI22 (2) T4Clear and convincing evidence K.\n124 (A) T4ln general K. The term ``clear and convincing evidence\" is that measure or\ndegree of proof that will produce in the mind of the trier of fact a firm belief or conviction\nas to the truth of the allegations sought to be established.\n124 (B) 4Degree of proof K. The degree of proof required to satisfy the standard of\nclear and convincing evidence shall be\nI26 (i) greater than the degree of proof required to meet the standard of\npreponderance of the evidence; and\n126 (ii) less than the degree of proof required to meet the standard of proof beyond a\nreasonable doubt.\n122 (3) [4Compensatory damages K. The term ``compensatory damages\" means\ndamages awarded for economic and noneconomic loss.\n122 (4) T4Economic loss K. The term ``economic loss\" means any pecuniary loss\nresulting from harm (including the loss of earnings or other benefits related to\nemployment, medical expense loss, replacement services loss, loss due to death, burial\ncosts, and loss of business or employment opportunities) to the extent recovery for\nsuch loss is allowed under applicable State law.\n122 (5) T4Harm K. The term \"harm\" means\n124 (A) any physical injury, illness, disease, or death;\n124 (B) damage to property; or\n124 (C) economic loss, including any direct or consequential economic loss.\n122 (6) T4Health care provider The term ``health care provider\" means any"
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