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Attorneys General Offer Comments on Federal Tobacco Law

William Lieblich, Tobacco Deputy Chief Counsel

Bill Lieblich, Tobacco Deputy Chief Counsel

Attorneys General Jon Bruning of Nebraska and Martha Coakley of Massachusetts, co-chairs of the NAAG Tobacco Committee, sent a Dec. 9 letter to the U.S. Food and Drug Administration (FDA) in response to the FDA’s request for “comments that will inform strategies to protect the public health” as the FDA implements the authority provided to it in the "Family Smoking Prevention and Tobacco Control Act" (the Act, P.L. #111-31).

The Act, which President Obama signed into law on June 22, granted the FDA comprehensive authority to regulate tobacco products, including their manufacture, ingredients, and marketing. On July 1, the FDA published a notice in the Federal Register, announcing that it was providing “an opportunity for all interested parties to provide information and share views on the implementation of the new law,” and stating that it was “particularly interested in comments on the approaches and actions the agency should consider initially to increase the likelihood of reducing the incidence and prevalence of tobacco product use and protecting the public health.”

“The nation’s Attorneys General are prepared to share the lessons we have learned during the last 11 years of enforcing the settlement agreement we entered into with the tobacco companies in 1998,” the NAAG comments state.

Attorneys General Bruning and Coakley focused on three areas in the letter: first, areas of overlap between the Act and the Master Settlement Agreement (MSA); second, areas where federal regulatory action is of critical necessity; and third, areas appropriate for cooperative federalism.

With respect to overlap between the Act and the MSA, the Attorneys General noted that the tobacco industry’s marketing methods have evolved since the 1990s, in part in response to the MSA’s restrictions and in part as a result of new technologies, such as the Internet. They offered to share the fruits of the states’ experience in enforcing the MSA as the FDA moves forward in fashioning and enforcing marketing restrictions. They also mentioned tracking and tracing of tobacco products as an area where the states’ experience could be helpful to the FDA.

On the subject of federal regulatory action, Attorneys General Bruning and Coakley singled out Internet and tribal sales of tobacco products as subjects that are of particular concern to the states on which the FDA may be able to take constructive action. The great majority of such sales violate state laws concerning verification of purchasers’ age and the collection of state excise and sales taxes. They are, therefore, (1) a major source of sales of tobacco products to minors, and (2) a significant means of tax evasion, which results in lower prices and thus higher demand for such products. For both reasons, these sales endanger the public health and would benefit from FDA action.

Finally, Attorneys General Bruning and Coakley described examples where the states and the FDA could work cooperatively on matters over which both exercised authority. The first relates to retail sales to minors, in which states have active enforcement efforts; the second concerns dissolvable tobacco products, on which the FDA is required to conduct a study and whose implications regarding tobacco use by youth is a matter of concern to the states.

As Attorneys General Bruning and Coakley informed the FDA, the state Attorneys General “welcome and look forward to a long and productive collaborative relationship with the FDA, as together we address the public health challenges posed by tobacco use in the United States.”

The NAAG comment letter is posted on the NAAG Web site, http://www.naag.org/tobacco.php

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