Key Advisory Panel Lights Into Parts of Tobacco Settlement

WASHINGTON —  A key advisory panel on Wednesday attacked a major element of the proposed tobacco settlement, arguing that the limits it would place on Food and Drug Administration regulation of nicotine are “absolutely unacceptable.”

The Advisory Committee on Tobacco Policy and Public Health, a group convened by anti-smoking congressmen and chaired by former FDA chief David Kessler and former Surgeon General C. Everett Koop, said the FDA must have “full and immediate power to regulate nicotine.”

If that power is lacking, the advisory panel said it would withhold its support of the tobacco settlement. The committee has no official status in the settlement process, but the White House is expected to carefully consider its views in deciding if it should seek to strengthen the deal or accept it as is.

Representatives of health advocacy groups lambasted the FDA provisions during a daylong meeting of the advisory committee. The group said it would issue a final report, possibly next week, that is expected to play a significant role in shaping public opinion and policymakers’ attitudes toward the tobacco deal.

“Personally, I would like to see a resolution, but not in the [precise] words of this settlement,” Kessler said.

Koop agreed, saying the deal as written needs refinement. “It has to be fixed, it can be fixed, and we will fix it,” Koop said. But he expressed concern about whether Congress would go along with the panel’s suggestions.

The deal would impose a high burden of proof on the FDA before it could begin phasing down nicotine levels in tobacco products--a power it won in a federal court ruling in April. Kessler, Koop and others contend that as the deal is written, the industry could effectively veto nicotine regulation through a court challenge.

One tobacco foe who supports the deal warned against creating an unrealistic set of recommendations and said a “utopian” wish list could kill any chance of settlement.

“What I heard this morning makes me afraid we will drive the industry and its legislative allies away,” said William Novelli of the Campaign for Tobacco-Free Kids, whose executive director, Matt Myers, helped negotiate the sweeping settlement announced last Friday. “I am asking us all to think realistically.”

A majority of the advisory committee’s members clearly seemed antagonistic toward the terms outlined in the deal, hammered out during months of negotiations between tobacco industry officials, state attorneys general and private anti-tobacco lawyers.

Under the proposed settlement, tobacco firms would pay $368.5 billion to reimburse states for smoking-related health-care costs, fund anti-smoking advertising campaigns and smoking-cessation programs, and accept major restrictions on tobacco advertising. In exchange, class-action litigation and lawsuits filed by states would be banned, although damage claims by individual smokers could still be filed against the industry. Because of the ban on some kinds of lawsuits, congressional approval is required.

Another provision that drew fire from the health group would provide monetary penalties for tobacco firms that fail to reduce their sales to minors. Under the proposed agreement, tobacco companies could be forced to pay an $80-million fine for every percentage point of sales to underage smokers below predetermined targets for reduction, up to a maximum penalty of $2 billion per year.

Koop called the provision “woefully inadequate” because the penalties would amount to only 5 cents per cigarette, allowing companies to modestly increase prices and accept the fines as a cost of doing business.

Times staff writer Myron Levin contributed to this story.