Congress Seen Unlikely to Pass Tobacco Pact This Year

The $368.5-billion tobacco settlement is too big, too complicated and too controversial to be enacted by Congress this year, according to a growing number of lawmakers and other experts.

“No way!” proclaimed Sen. James M. Jeffords (R-Vt.), chairman of one of the committees considering the settlement, when asked Wednesday if legislation on the massive deal could move through Congress in 1997.

Senate Minority Leader Tom Daschle (D-S.D.) said “the complexity” of the issue made swift action doubtful. “I’m not sure anything quite like this has ever been addressed legislatively or in public policy,” he said at a news conference.

“We want to make sure that we’ve covered the bases, that we’ve really had a good chance to think it through and the committees have had a chance to consult outside witnesses. This hasn’t happened to our satisfaction yet.”

Though concerns about the agreement have been building for weeks, the statements made Wednesday on Capitol Hill were the strongest indications to date that the approval process is going to be a drawn-out and bruising affair.

Also expressing doubt about action this year were Senate Majority Leader Trent Lott (R-Miss.), traditionally an industry ally, and Sens. Edward M. Kennedy (D-Mass.) and Tom Harkin (D-Iowa), staunch tobacco foes. Their remarks came on the heels of a similar statement by House Majority Leader Dick Armey (R-Texas) on Tuesday.

The statements came as White House aides continued work on a review of the settlement that they hope to give to President Clinton when he returns from vacation on Monday. Those aides said they expect the president to express his views on the deal later this month.

Clinton already has expressed reservations about certain aspects of the deal, while at the same time indicating that he thinks it presents a significant opportunity to help reduce smoking and achieve other public-health gains.

Meanwhile, in a significant victory for tobacco foes, the Senate reversed itself Wednesday and by a whopping 70-28 majority approved $30 million to help states implement a Food and Drug Administration program designed to restrict smoking by underaged youth. The program requires store owners to check the age of teenagers trying to buy cigarettes.

Harkin, who spearheaded the drive for enhanced funding, said the vote showed how the tobacco industry’s standing is changing in Congress. In July, the Senate defeated a similar measure, 52-48.

The National Center for Tobacco-Free Kids called the funding bill “the most important anti-tobacco measure since the airline smoking ban” was passed nearly a decade ago.

“Today’s victory is particularly significant given that smoking among high school seniors is currently at a 17-year high. A review of 13 studies of over-the-counter sales found that minors can illegally buy cigarettes a disturbing 67% of the time,” the center said.

The massive settlement now before Congress and the White House was announced in mid-June amid great fanfare after several months of negotiations. The $50-billion-a-year tobacco industry agreed to pay $368.5 billion over 25 years and to accept severe restrictions on its advertising and marketing practices. In return, class-action suits against the industry would be barred in the future, as would punitive damages.

Since that time, the pact has drawn praise as a landmark first step toward developing a comprehensive national policy that could reduce smoking and save thousands of lives. But it also has been widely criticized for not being tougher on the industry, particularly provisions that would make it difficult for the FDA to compel the industry to lower the nicotine content of cigarettes.

That drumbeat continued on Wednesday at a hearing of the Senate Labor and Human Resources Committee, chaired by Jeffords.

“It has become abundantly clear that the settlement is grossly deficient in fundamental ways,” said Kennedy, who contends the settlement pot should be doubled to fairly compensate federal taxpayers “for the damage smoking has done.”

Kennedy stressed that concessions made by the industry thus far “should be the beginning, not the end, of the legislative process.”

Mississippi Atty. Gen. Mike Moore, the chief negotiator for the 39 state attorneys general who forged the deal, said some improvements to the pact are being negotiated, including new language that will make it clear that the FDA will have full authority to regulate the industry and the nicotine content of cigarettes.

Moore said the deal is “not perfect, but very good for the goals we have,” particularly reducing youth smoking.

Moore, who is growing increasingly impatient with the slow pace in Congress and the White House’s failure to take a definitive stance on the settlement, reiterated his concern that the dynamics of the situation could change in ways that would strengthen the industry’s hand.

In particular, Moore is worried that the industry may prevail in its appeal of a landmark decision by a federal judge that gave the FDA the authority to regulate the industry. Consequently, he urged senators to move expeditiously.

“I’ve got my foot on his neck right now,” Moore said, referring to tobacco industry lawyer D. Scott Wise, who was seated beside him. “Let’s don’t miss this opportunity.”

For its part, the industry wants the deal wrapped up this year in no small measure because it fears losing a massive suit filed against the tobacco companies by the state of Minnesota, which is scheduled to go to trial in mid-January. Minnesota Atty. Gen. Hubert H. Humphrey III has urged members of Congress to reject the settlement and to permit the litigation process to move ahead.

But Harkin, noting that the industry favors the deal in its current form, was skeptical: “Mr. Moore, I like how you say you have your foot on Mr. Wise’s neck. But it’s the first time this country boy has seen someone say he has his foot on someone’s neck, and that guy says he likes it.”

Several lawmakers said a key hindrance to action on the matter this year is Clinton’s slowness in taking a definitive position.

The president and some of his aides have made it clear that parts of the proposed settlement--including FDA authority, the magnitude of penalties to be imposed on the industry if smoking by minors does not decline sharply, and the total settlement pot--have to be changed for the pact to garner White House approval.

Moore said he is still hopeful Clinton will give the settlement a strong endorsement by mid-September, a move that could change the sentiment toward it in Congress.

Lobbyist John D. Rafaelli, one of several who have been hired by the attorneys general, acknowledged that unless the industry quickly embraced the changes Clinton is likely to propose--an unlikely prospect--action on a settlement would likely be delayed until next year.

J. Philip Carlton, a North Carolina attorney who played a key role in formulating the deal, has said repeatedly in recent weeks that the industry is not prepared to pay more money or to accept stiffer penalties contingent on the decline of youth smoking.

He reiterated these positions at a meeting with White House Counsel Bruce R. Lindsey on Tuesday. Along the same line, industry lawyer Wise said at Wednesday’s hearing that “the economic terms of the deal, I think, are extremely stringent, and I would not predict the companies have any ability to do any more in that area.”

Nonetheless, another well-placed White House aide said Wednesday he thinks the industry ultimately will accept major changes in the deal.

“This is not like dealing with the NRA (National Rifle Assn.), where there is a principle at stake. This is about making money,” said the aide, speaking on condition of not being identified. “This settlement offers them the ability to limit their liability and the ability to operate as a monopoly. . . . That is a situation most companies would want to operate in,” the aide said.

In another related development Wednesday, a group of 10 Democratic senators led by Patrick J. Leahy from Vermont and Frank R. Lautenberg from New Jersey sent Clinton a letter urging him to require the tobacco industry to release to Congress all its internal documents, including those the industry claims are protected by attorney-client privilege.

Times staff writer Janet Hook contributed to this story.