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Senate Vote A Sea Change For Tobacco

To win over hesitant Republicans on the cloture vote, Majority Leader Harry Reid (D-Nev.) pledged that he would work to ensure that tobacco state lawmakers still have a chance this week to present their alternative regulatory scheme — which is now technically out of order. The narrowness of Reid’s margin — a supermajority of 60 was required — reflects the dicey politics of the Senate. But going forward, proponents of the bill are in the driver’s seat, and passage is all but assured in the next few days.

A landmark cheap cigarettes regulation bill advanced in the Senate on Monday amid growing pressure for the House to quickly accept the final product and lock up a long-sought victory for anti-smoking forces — and for President Barack Obama. Seven Republicans joined 52 Democrats on the 61-30 roll call to cut off debate on the measure, which authorizes the Food and Drug Administration to regulate the industry with a mandate to reduce teenage smoking by restricting advertising aimed at young audiences.

Amid the greater focus on Obama’s larger health care reform agenda, the FDA’s new authority can get lost in the shuffle. But it reflects a sea change in tobacco politics over the past decade and is the latest in a series of incremental steps by the new White House and Democratic Congress this year that would, in another time, receive more attention. After being stymied repeatedly by former President George W. Bush, Democrats wasted no time in January before moving through legislation to expand the State Children’s Health Insurance Program to cover an additional 4.1 million children, chiefly from working-class families.

And Obama’s economic recovery program in February devoted tens of billions to health care investments, from Medicaid and community health centers to new information technology and research into the comparative effectiveness of different medical treatments. Tobacco has paid heavily for this shift, beginning with a near 62 cents-per-pack increase in federal cigarette taxes to pay for the SCHIP expansion. And to help pay for the new FDA regulatory role, the industry will be subject to user fees beginning at $235 million next year and tripling to $712 million over the next decade.

The Senate vote captured the change in old alliances that once made tobacco a major power broker in Congress, even beyond its own domain. Sugar- and cotton-state Democrats from the South voted for cloture, for example, and among the Republicans supporting Reid’s motion was no less than Texas Sen. John Cornyn, who chairs the Republicans’ Senate campaign committee. “It’s a less-than-perfect solution to a bad problem,” Cornyn told POLITICO. “Tobacco kills 400,000 people a year in this country. We’ve tried litigation, and the only thing that happened is a bunch of lawyers got rich. Ordinarily, I would not be an advocate for more government regulation. But if this is going to be a legal product, sold in America, I think this is a reasonable step.”

Wyoming Sen. Mike Enzi, the ranking Republican on the Senate Health, Education, Labor and Pensions Committee, opposed cloture, but with this decision settled, he and other Republicans may feel more free to come aboard the final bill. Sen. Chris Dodd (D-Conn.), the bill’s manager, has worked with Enzi already to make changes he has wanted related to how the FDA performs in its new task and the level of monetary penalties that can be imposed on companies for violations in the future.

Enzi is even more aggressive than the House in some cases. Reflecting his input, the Senate bill requires that cigarette health warning labels be large enough to make up 50 percent of the front and rear panels of the package and that the word “warning” appear in capital letters. Critics argue that the historic role of the FDA makes it not the best choice for the job at hand, and Sen. Richard Burr (R-N.C.) said he would set up a new agency within the Department of Health and Human Services.

“They are to take poisonous material and get it off the market,” Enzi said of the FDA, and Senate Majority Whip Dick Durbin (D-Ill.) conceded there is a “built-in challenge.” “The built-in challenge is this: Their charge when it comes to medicine is safety and efficacy,” Durbin told POLITICO. “Well, there’s no question about judging the safety of tobacco. We’re conceding the obvious point there. It’s not safe.” “But they certainly know the regulatory regimen in terms of disclosure of ingredients and monitoring and having some control over marketing and merchandising. So I don’t know another agency that can bring all they can bring to it.”

Senate passage this week sets up a situation in which the House could insist on further changes to come closer to its bill passed earlier this spring. But after 10 years of struggle, the temptation will be strong to simply accept the Senate version and send it on to Obama, who has been eager for the victory. “We’re very hopeful that the bill goes through,” said Gregg Haifley, associate legislative director for the American Cancer Society.

Time, too, is of short supply in Congress. House-Senate negotiators hope to reach agreement this week on a wartime spending bill that is now expected to exceed $100 billion when new pandemic flu money is added. Monday night, Democrats were more hopeful that the House would appoint its conferees Tuesday to bring the issue to a close. As part of the final bargaining, it’s expected Democrats will ultimately scuttle Senate language limiting public access to controversial photos detailing the treatment of detainees held by the U.S. military.

But the administration was still pursuing some compromise that would give Obama more flexibility in trying to move prisoners and shut down the Guantanamo detention facility. The last major business of the 2009 fiscal year, the spending bill, is already being overtaken by new bills for 2010, beginning Oct. 1. The latest is a $42.6 billion Homeland Security budget unveiled by the House Appropriations Committee late Monday that would cut $204 million from the president’s request but still represents a 6.5 percent increase over the current year.

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