Tobacco Pact Stalled as Congress Adjourns; Ad Restrictions Await Actions on Other Issues

By Richard T. Kaplar

Congress adjourned in mid-November without coming close to enacting legislation to implement the deal between tobacco manufacturers and state attorneys general announced in June. Capitol Hill is still in the early stages of work, in fact, stirring speculation about when, or if, it will pass the necessary law.

The sweeping advertising restrictions contained in the original settlement would not be implemented until other provisions of that pact were written into law.

In the Senate, Judiciary Committee Chairman Orrin Hatch (R-Utah) introduced a bill just before adjournment that would raise the settlement's cost to the industry from the original $368.5 billion to $397.3 billion over 25 years. The bill would more than double the maximum industry penalties for failing to reduce underage smoking, from $2 billion to $5 billion per year. The measure would also create a $95-billion research fund to be paid out of the $397.3 billion total.

The Hatch bill, like the original settlement, would protect the industry from class-action lawsuits and from punitive damages stemming from lawsuits that alleged past misconduct.

Earlier, Sen. Edward M. Kennedy (D-Mass.) introduced a bill setting the industry payout at twice the original amount after he and Sen. Hatch failed to agree on a bipartisan measure. (A version of Sen. Kennedy's bill was also introduced in the House.) Another bill by Sen. John McCain (R-Ariz.) tracks the terms of the original pact.

Sen. Don Nickles (R-Okla.), assistant majority leader, has set a goal of March 16 for the Senate to finish work on a bill.

The House, meanwhile, has proceeded at a slower pace. The House Commerce Committee held its first hearing Nov. 13 but has yet to produce a piece of legislation as anticipated.

Legislation is the only way to implement certain key provisions of the settlement package, such as the exemption from class-action lawsuits and liability waiver for punitive damages.

The advertising restrictions outlined in the settlement would be implemented separately through a "national tobacco control protocol" and consent decrees with individual states. Strategists do not want the ad restrictions spelled out in legislation for fear of sparking a constitutional fight.

However, the overall settlement hinges on congressional action. Without a law the entire deal, including the ad restrictions, would fall apart. But the House's pace, the Senate's rancorous disagreement thus far, and next fall's elections all cast doubt on whether Congress will act at all in the coming year.

The Administration has been silent on the issue since September, when President Clinton denounced the pact in sweeping terms and called for tougher penalties if youth smoking is not curbed.