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American Jobs Creation Act of 2004-Conference Report

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Date:
Location: Washington, DC


AMERICAN JOBS CREATION ACT OF 2004-CONFERENCE REPORT-RESUMED

Mr. KENNEDY. Mr. President, may I have an hour after Senator DeWine?

Mr. REID. I ask unanimous consent that Senator Kennedy be given up to 1 hour following Senator DeWine.

The PRESIDING OFFICER (Ms. MURKOWSKI). Is there objection? Without objection, it is so ordered.

BREAK IN TRANSCRIPT

Mr. KENNEDY. Mr. President, the hour is late in the afternoon on a Saturday, and I know there are many different matters of interest, primarily sports taking place across this country at the universities and high schools across our Nation. Young people are out there, parents are out there, families are out there, but I hope there are some who had the good opportunity to listen to my friend and colleague from Ohio State who spoke so clearly and eloquently as to what the real challenge is for this institution, the Senate, in protecting the children of this Nation.

The Senator laid out the kind of persuasive and irrefutable case that helped gain 78 Members of the Senate who supported the DeWine-Kennedy proposal earlier this last month, but the amendment was dropped, as the Senator from Ohio pointed out, in the course of the consideration of the underlying legislation.

There are public leaders who are talking about children all over this country. They talk about children being our future. They are our future. As the Senator from Ohio points out, we have missed the golden opportunity to make an extraordinary difference in the lives of their children and families.

We hear a great deal, as we should, about family values. This legislation is as much a part of family values as we could have, to the extent that legislation is bound in family values. We know that basically family values start with parents, work through their children's relationship with each other and their parents, and their own common sense about their responsibilities as young people for themselves and for their families and for others. Family values involves caring about what happens not only to our children and our immediate families but also to children whose lives we can impact.

This legislation which was supported by the overwhelming majority of this Senate, could make such an extraordinary difference to children today, tomorrow, and to the future. As has been pointed out, we have missed that extraordinary opportunity.

For that reason and for other reasons which I will outline briefly in a few moments, I intend to vote no on the conference report and no on cloture.

This country has had a very full education about the dangers of smoking. I can remember the 1964 Surgeon General's report that talked about the dangers of smoking and youth. That was a wake-up call to parents all across this country. Then we had Surgeon General Koop, who was an extraordinary Surgeon General.

Last night the President of the United States was asked about any mistakes he might have made in public life, and we did not hear any. I freely admit one of the important mistakes I made was voting against Everett Koop to be Surgeon General because we saw through his life and through his commitment not only as the Surgeon General but afterwards, as well, that once he made that judgment that cigarettes were addictive and cancerous, he spent a great part of his life educating families all across this country. This Nation owes a great deal to his work and his commitment and his education to families.

That was a wake-up call for America. We went on through the period of the 1980s when we had Dr. Kessler, head of the FDA, who drafted the regulations which were circumvented by the tobacco industry, and put aside those regulations that were the result of hours and hours and hours and hours and weeks and weeks and weeks, and days and days and days and months and months and months of careful, scientific testimony, those for and against it.

Nonetheless, he came through with outstanding recommendations. We incorporated those recommendations as a point of reference to put them into effect because they have been tried and tested and they should have been put into effect to provide the protections for the young children of this country.

Then we had-I can remember, and I bet most families can remember-that extraordinary day when we had the presidents of all the important tobacco companies who testified in front of my friend and an extraordinary Congressman, HENRY WAXMAN, who all raised their hands and swore-swore-to the Lord on high that they, as the chief executives of the tobacco companies, did not believe cigarettes were addictive and did not believe they were dangerous to your health, in complete conflict with all the evidentiary science at that time.

Well, we heard so many of them recant that testimony later. It has all been part of a parade, a parade of distortion and misrepresentation by the tobacco companies and their representatives to not the older members of our society but to the children in our society in order to bring them in and start them smoking and get them on the path to addiction.

I have been fortunate to be the chairman of the Health Committee in the Senate. I am ranking member now. How many days, how many weeks, how many months of hearings we have had about the problems young people have with their addiction, their attachment to dangerous drugs. Cigarettes are right up there. As the science would say, they are as addictive as heroin and cocaine. That is the science. That is not just an opinion of the Senator from Massachusetts, that is the science. It is as addictive as cocaine and heroin, yet we allow that to take place.

Then we had the comprehensive legislation in 1998 to try to deal with a range of different tobacco issues. The basic core part of the DeWine-Kennedy legislation on FDA was here before the Senate essentially at that time for 6 weeks and no one contested its importance. Go back and read the record. No one really questioned that if we were going to have a comprehensive tobacco bill at that time that particular provision deserved at least support. There were no amendments on that, none. All these voices now: Oh, well, we can't have the FDA, absolutely not. We don't need more regulation-we did not have a single amendment on that, none; no amendments.

I had the good opportunity to effectively reintroduce that legislation with the majority leader, Senator Frist, who did so much in the drafting of the original legislation, one of the important leaders in this body on health care policy. This provision is basically very mainstream, if that gives assurance to some people. It is a very mainstream proposal, but it does the job in terms of protection.

So we had this proposal that was considered in the Senate, and was accepted, that would make such an extraordinary difference. As I was mentioning, the very simple fact is, this product, which is so addictive, so dangerous to the children of this country, not only to the children themselves but also to their families, is something that we should have addressed.

But this administration and, quite frankly, the leadership on that Ways and Means Committee, our Republican leadership, said: Absolutely not. We are not going to tolerate it. We are not going to accept it. We will not let it happen. And it did not.

I pay respect to my colleagues on the other side of the aisle because the progress that we made has not been just a partisan effort. The good Senator from Ohio has been a leader. There have been many. The Senator from Oregon, Mr. Smith; the Senator from Maine, OLYMPIA SNOWE; JOHN MCCAIN from Arizona; ORRIN HATCH from Utah; Senator Chafee from Rhode Island; and many others have been willing to stand on this issue. This has not been a Republican or Democratic issue.
But this administration has made a different judgment than those good Republicans who supported this effort in here and also a number of them supported us in the conference.

There has to be responsibility. There should be some accountability around here somewhere. We are elected as officials. We make judgments, we make choices, and we ought be held accountable for them. That was a decision that was made by the administration not to include it. If this administration said to include it, it would be in that bill tomorrow when we vote on it on the floor of the Senate. We had the support of some of the tobacco industries, with the Philip Morris industry.

Tomorrow, when the Senate addresses the underlying legislation, we are also going to voice vote and send back to the House of Representatives the DeWine-Kennedy FDA legislation. The Senate will pass that. We will send it back to the House. We have not given up hope.

Senator DeWine and I have not given up hope that perhaps in some lameduck Congress, perhaps when the glare of the campaign in the last 4 weeks of the campaign-I would have thought it would have been a pretty good issue because people, parents, care about this, to indicate support for it. But, in any event, perhaps after the glare of the campaign is over, in a postcampaign time, when we meet, perhaps we can get a different reaction. So we take some hope and we want to give the assurance to those who have given us strong support that we are not giving up and we are not giving in.

Mr. President, I have a few letters that I will mention, and then there are a few final items I want to talk about. We have a detailed presentation on exactly what this legislation does. I want to make sure that is in this part of the RECORD. I ask unanimous consent that be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

I started smoking when I was 12 years old. My mother smoked, and my friends told me it would make me "cool." Since my mother was always at the hospital with my father, helping him while he was losing his battle against cancer, there was no one around to notice that I had begun smoking. That was in 1973. I smoked until Jan. 1, 1990, when I was 28 years old, and I have been smoke-free for almost 14 years. Quitting was probably the hardest thing I have ever done, but it was definitely the smartest. My mother smoked until she got diagnosed with lung cancer in 1994, which is also the year her only grandchild was born. They removed part of her lung, and since she believed she had "beat" the cancer, she began smoking again. Five years and five CT scans later, they found another tumor in her lung, this time inoperable and supposedly untreatable. The doctors gave her six to ten months to live. Knowing how short her time was, 1999 turned out to be an extremely painful year for all of us. Over the next four years, my mother suffered terribly, often unable to eat and using a stomach tube, constantly taking medication and losing lucidity, often too tired and too weak to be with her little granddaughter, whom she completely adored.

We watched her waste away to 80 pounds, the cancer having invaded her bones, causing her to fall, taking away her independence, which she always valued highly. She died on April 21, 2003, the day after Easter, at only 67 years old. She was my best friend, and my daughter's, too. I miss our daily phone calls, and I will miss her warm, inviting presence this holiday season, as I do every single day. My 9 year-old daughter has seen what horror cigarettes can cause; I doubt that she will ever forget that cigarettes took her "Nonni" away from her, but she is coming to the age where social pressures will be on her to conform to the "crowd." I hope that she will be strong, and that there will be enough education in her school to help her to learn how to deal with people who try to coerce her into using this drug, among others. Thank you for allowing me to share my story.-Lorraine T., Ipswich MA, November 10, 2003.

My father never liked to dance much. Yet, as we stood hugging, watching my best friend dance with her father at her wedding, Dad promised to dance with me at my wedding.

At age 39, he had a stroke that left him paralyzed on his left side. He was able to regain most of the use of his limbs through years of hard work. Unfortunately, he wasn't able to quit his addiction to cigarettes.

One month before his 50th birthday, he died from a tobacco related heart attack. He didn't live to fulfill his promise to dance with me at my wedding.-Donna M., Melrose MA, January 12, 2004.

Today is like every other day I miss my mom so much, I look at my kids and realize "nanny" is not here to see how cute they have become. I am a only child and lost my mom 3 years ago to lung cancer. I can remember the moment the doctor told me she was going to die, and in the same breath she said "I truly believe what the tobacco companies are getting away with is criminal." I have from that day on not been able to understand why they are allowed to sell something that has killed so many, and is going to kill so many more. It is heartbreaking to see a young teen smoking, Sometimes I say something, yes they think
I'm crazy. However there life to me is so precious. No I may not know them, but I wish they would listen. If they saw their mom or dad gasping for breath, if they saw their moms pelvic bones vividly sticking out would this change their minds and make them want to quit? I hope so, I don't want any more families to feel this pain and utter loneliness that I have had to endure. My children are the ones who get me through the bad days. They warm my heart taking away the sadness. I have taught them early on how bad and deadly tobacco is, and they also know that's why "nanny" is no longer here, and how much she loved them! Thank you.-Linda F., Middleboro MA, September 23, 2003.

In November 2002 we learned that my mother, Gloria, had stage four lung cancer. What started as pain in her hip and was explained away as arthritis pain was actually bone cancer-yes, it had already spread from her lungs before she knew she even had it. Mom had quit smoking what seems like a very long time ago . . . yet, it came back to haunt us.

She fought a fight I never knew she had in her. An agonizing fight that I hope her story will prevent someone-or many someones-from ever having to fight. She lost all of the weight she had struggled to lose most of her adult life. She lost her hair.
She lost her appetite. She lost sleep. She lost her freedom-unable to get around without pain, unable to drive, often unable to be alone. There were so many things that she lost . . . too many to mention.

But, what she did not lose was her faith. And it was her faith that carried her through those long months.

Mom fought for a year. She fought to the end. She died last October with one regret. That she would not live to see her new Granddaughter.

Her Granddaughter was born 8 months and 23 days after Mom passed away. She is now 4 weeks old (today!) and it is my hope that she will never breathe someone's secondhand smoke. That she will never have a friend who takes up smoking. And that she will never have to watch someone she loves die from such a horrible, preventable thing as lung cancer. I will share Mom's picture with all of the children I know. I will show them her smiling face. . . . even at the end when she smiled because she knew that she was going to be going home soon. And I will tell them of how much she loved children. And how she never, never wants to hear that they have taken up smoking. I will tell them that the reason she is so thin in the picture is because she was sick. I will show them the pictures when she had lost most of her hair. I will tell them how much I miss her.
And I will make them promise me-and Mom-that they will never, never smoke or be around anyone who is smoking. I LOVE YOU MOM!-Sarah Z., South Easton MA, October 4, 2004.

I have now been a smoker for over 8 years. I am only 24 years old. I already have a severe smokers cough that only gets worse with the cold weather. I live in New England. I sometimes read the side of the packs with the Surgeon Generals warnings. They say that smoking can cause babies to be low birth weight. Well two years ago I had a daughter. I did not smoke all the time when I was pregnant but I guess you still could have called me a smoker. My daughter was 8 pounds she was definitely not under-weight. Now don't get me wrong I am not saying this to be proud. Every time I look at her I wonder if I did any other damage to her. I am so ashamed of myself. Yet right now I am dying for a smoke. This is such an addiction I don't think that I will ever overcome it, I want to and God knows how I have tried. I want to be around when my daughter grows-up, to see her get married and to see any future grandchildren I might have. If I keep up this way I am not going to see any of it, it is so depressing.

Well the only thing I can say is that if there were stricter regulations when I was a minor I probably never would have started smoking. I know that sounds cliche but you can't miss something you never had . . . now I have had it and I cannot go without it. I feel like a junkie even though I am not. I will be scorned by the non-smoking community. I will be the pariah for the smokers. I only wish that I could quit.

I hope someone will not smoke once reading this . . . but then again I am only one person . . . barely able to make a difference. Maybe just once before it's too late. Just to quit for my little daughters sake . . . she does need to know . . . mommy cares what she thinks.-Tori H., South Boston MA, November 12, 2003.

(Mr. WARNER assumed the Chair.)

Mr. KENNEDY. Mr. President, here is a letter from Lorraine T. from Ipswich, MA. I will include the whole letter, but I will just read parts of it:

My mother smoked until she got diagnosed with lung cancer in 1994, which is also the year her only grandchild was born. They removed part of her lung, and since she believed she had "beat" the cancer, she began smoking again. Five years and five CT scans later, they found another tumor in her lung, this time inoperable and supposedly untreatable. The doctors gave her six to ten months to live. Knowing how short her time was, 1999 turned out to be an extremely painful year for all of us. Over the next four years, my mother suffered terribly, often unable to eat and using a stomach tube, constantly taking medication and losing lucidity, often too tired and too weak to be with her little granddaughter, whom she completely adored.
We watched her waste away to 80 pounds, the cancer having invaded her bones, causing her to fall, taking away her independence, which she always valued highly. She died April 21, 2003, the day after Easter, at only 67 years old. She was my best friend, and my daughter's, too. . . .

My 9 year-old daughter has seen what horror cigarettes can cause; I doubt that she will ever forget that cigarettes took her "Nonni" away from her, but she is coming to the age where social pressures will be on her to conform to the "crowd." I hope she will be strong, and that there will be enough education in her school to help her to learn how to deal with people who try to coerce her into using this drug, among others. . . . Lorraine T., Ipswich MA.

Here is another letter from Donna M., from Melrose, MA, of this year:

My father never liked to dance much. Yet, as we stood hugging, watching my best friend dance with her father at a wedding, Dad promised to dance with me at my wedding.

At age 39, he had a stroke that left him paralyzed on his left side. He was unable to regain most of the use of his limbs through years of hard work. Unfortunately, he wasn't able to quit his addiction to cigarettes.

One month before his 50th birthday, my Dad died from a tobacco related heart attack. He didn't live to fulfill his promise to dance with me at my wedding.

Here is a letter from Linda F., of Middleboro, MA:

Today is like every other day. I miss my mom so much. I look at my kids and realize "nanny" is not here to see how cute they have become. I am an only child and lost my mom 3 years ago to lung cancer. I can remember the moment the doctor told me she was going to die, and in the same breath she said "I truly believe what the tobacco companies are getting away with is criminal." I have from that day on not been able to understand why they are allowed to sell something that has killed so many,
and is going to kill so many more.

Then the letter continues.

This is from Sarah Z. from South Easton, MA, October 4, 2004:

In November 2002 we learned that my mother, Gloria, had stage four lung cancer. Mom fought for a year. She fought to the end. She died last October with one regret. That she would not live to see her new granddaughter. Her granddaughter was born 8 months and 23 days after Mom passed away. She is now 4 weeks old (today!) and it is my hope that she will never breathe someone's secondhand smoke. That she will never have a friend who takes up smoking. And that she will never have to watch someone she loves die from such a horrible, preventable thing as lung cancer.

And Tori H, South Boston:

I have now been a smoker for 8 years. I am only 24 years old. I already have a severe smoker's cough. It only gets worse with cold weather. I live in New England. I sometimes read the side of the packs with the Surgeon General's warnings. They say smoking can cause babies to be low birth weight . . . I did not smoke all the time when I was pregnant but I guess you could have called me a smoker . . . My daughter was 8 pounds; she was definitely not under-weight. Now don't get me wrong-I am not saying this to be proud. Every time I look at her I wonder if I did any other damage to her. I am so ashamed of myself. Yet right now I am dying for a smoke. This is such an addiction. I don't think I will ever overcome it. I want to and God knows how I have tried. I want to be around when my daughter grows up, to see her get married and to see any future grandchildren I might have. If I keep up this way I am not going to see any of it; it is so depressing.

The letters go on, and they make the case. If there are any who think this is a partisan issue, look at what the Bush administration's Department of Justice filed in the final proposed findings of fact of the United States in the tobacco litigation brought by the Federal Government against tobacco companies.

This is the current administration's finding, page 21: Cigarette smoking, particularly that begun by young people, continues to be the leading cause of preventable disease and premature mortality in the United States. For children and adolescents, one out of three will die of smoking-related disease. As part of a scheme to defraud, defendants have intentionally marketed cigarettes to youth under the legal smoking age and falsely denied that they have done so.

We could go on. I have their brief notes right here about what is happening. These are the statistics in terms of the young people who get started smoking. It begins early. When adults who are daily smokers began smoking: 89 percent by the age of 18; 62 percent by the age of 16; 37 percent by the age of 14; and 16 percent by the age of 12.

You can ask why. Well, just look at this chart. This is advertising in billions of dollars. These are billions of dollars of advertising and how this has gone up and has continued in 2003 and 2004. That is targeted, as these various ads demonstrate: Winston, three young people out in the surf with a surfboard. The sun is setting. Additive free. Naturally smooth. Leave the bull behind, just pick up a Winston.

This is from Elle magazine, all targeted toward young people: Camel, Turkish blends. And there you see the advertisement, all focused on the youth.

Here is Rolling Stone: Stir the senses, Salem. All to appeal to the young people.

And it has great success because, like any narcotic, you get them hooked at that age, and it is very difficult to stop.

My friend from Ohio mentioned the costs for the taxpayers as well. We are motivated because of our concern for the children and children's health and the family's health. But if that doesn't move you, just look at the annual cost in the United States: the Medicaid payments, $23 billion; $20 billion in Medicare payments; other Federal payments, $8 billion; smoking during pregnancy, $4 billion; total health cost, $75 billion. And if you add lost productivity to that, you are talking over $150 billion a year in direct costs to the American taxpayer.

This makes sense, obviously, and is the most important for the children so they aren't going to be addicted and their health is going to be protected. It is for the other members of the families as well so that those young people who are eventually going to be parents are going to be protected. But if that doesn't get you and the pocketbook issues don't get you, you can see that you are paying billions and billions of dollars.

These are the conclusions about the activities of tobacco companies even by this Justice Department.

This is why this is so important and an opportunity missed.

Let me conclude on this subject by referring to the letters of support we received from some groups:

Dear Senator Kennedy, Congress has an historic opportunity to embrace responsible legislation that will help to reduce suffering and death caused by the tobacco. The House-Senate conferees should include the DeWine-Kennedy language. On July 15, the U.S. Senate took an unprecedented step towards granting the Food and Drug Administration effective authority.
The Senate passed the DeWine amendment. The overwhelmingly bipartisan amendment linked the FDA with the tobacco buyout. Our organizations view this approach as critical to accomplishing our goal, securing FDA authority over tobacco products. Tobacco use kills more than 400,000 Americans each year. Across our Nation, more than $75 billion in health costs and, according to the Centers for Disease Control, tobacco use by pregnant women alone costs $400 million to $500 million.
And every day another 2,000 children become regular smokers. A third will die prematurely as a result. Now we have an opportunity to do something about it. Yet tobacco products are virtually unregulated. For decades the tobacco companies have marketed to our children, deceived consumers about the harm their products caused, and failed to take any meaningful steps to make their products less harmful. The DeWine-Kennedy language would finally end the special protection enjoyed by the tobacco industry to protect our children and the Nation's health. This legislation meets the standards long established by the public health community for a strong FDA regulation bill that protects the public health. It would give the FDA the necessary tools and resources to effectively regulate the manufacture, marketing, labeling, distribution and sale of tobacco products.

Then it continues:

The public health community worked in good faith to achieve this much-needed bipartisan legislation that protects the public health and can be enacted in this session. We remain concerned that opponents of an effective FDA will seek to weaken the provision prior to final passage. Our organization will work. Please support.

Those include the American Academy of Family Physicians, American Academy of Nurse Practitioners, American Academy of Pediatrics, American College of Cardiology, American College of Obstetricians and Gynecologists, American College of Physicians, American College of Preventive Medicine, American Heart Association, American Lung Association, the Medical Association, American Women's Medical Association, the Public Health Association, the School Health Association, the Children's Defense Fund, and the Campaign for Tobacco Free Kids.

I thank them in particular.

The FSC conference report that we are being asked to consider ignores fundamental issues that broad bipartisan majorities of the Senate have strongly supported. On vital matters concerning the protection of children's health, preserving the overtime rights of workers, and defending American jobs from outsourcing to foreign lands, the cynical actions of a few have blocked the will of the majority.

The House conferees were more interested in protecting big tobacco companies' profits than they were in protecting children. They would rather create tax incentives for multinational corporations to move millions of American jobs overseas than save millions of our kids from a lifetime of addiction and premature death.

We were not the ones who chose to link tobacco issues to this tax bill. That was a decision made by the House Republican leadership. But it is absolutely irresponsible to address a quota buyout for tobacco farmers, as this conference report does, while ignoring the urgent need for FDA authority to prevent cigarette companies from entrapping our kids. The conferees have left us no choice but to oppose passage of this conference report.

The importance to our children of authorizing the FDA to regulate tobacco products cannot be overstated. Smoking is the number one preventable cause of death in America. It kills well over 400,000 Americans each year, and nearly all of them started smoking as children. They are seduced by the tobacco companies before they are mature enough to recognize the enormous health risks of smoking, and become addicted while still teenagers.

We feel so strongly about this issue because FDA authority is the most important legislation Congress can pass to protect our children from the number one preventable cause of death in America-smoking. We cannot in good conscience allow the Federal agency most responsible for protecting the public health to remain powerless to deal with the enormous health risks of cigarettes.

The stakes are vast. Each day, 5,000 children try their first cigarette. Two thousand of them will become daily smokers, and nearly a thousand will die prematurely from tobacco-induced diseases. The fact is that more than 90 percent of adult smokers began smoking as teenagers.

Smoking can cause lifelong dreams to go up in smoke. Smoking can mean your hopes for an active life-of hikes with your children, and bike riding and long walks-are beyond your reach. You simply don't have the lung capacity and the stamina to do what you wish you could do. It can mean that your hope of enjoying your grandchildren and appreciating your retirement are gone, as you suffer from tobacco-induced disease and an early death. The most recent studies document the fact that smokers, on average, die 10 years earlier than non-smokers. That is what can happen to your lifestyle when you start smoking as a teenager.

How many addicted smokers today are glad to be smoking? How many Americans with smoking-induced lung cancer or emphysema are glad to be smokers? How many addicted smokers can look their children and grandchildren in the eyes and say they are proud to smoke cigarettes. How many wish they could easily put out that last cigarette, and never look back? I think we all know the answers to these questions. That is why this issue is so important.

The Senate amendment which passed with the support of 78 Members set forth a fair and balanced approach to FDA regulation. It created a new section in FDA jurisdiction for the regulation of tobacco products, with standards that allow for consideration of the unique issues raised by tobacco use. It was sensitive to the concerns of tobacco farmers, small businesses, and nicotine-dependent smokers. But, it clearly gave FDA the authority it needs in order to prevent youth smoking and to reduce addiction to this highly lethal product.

The Senate amendment also provided financial relief for hard-pressed tobacco farmers, much more generous relief than is contained in the conference report. It incorporated bipartisan legislation introduced by thirteen tobacco-state Senators led by Senator McConnell, to buy back tobacco quota from farmers. It would have provided $12 billion to financially vulnerable tobacco farmers and tobacco communities. The money to fund the buyout would come from an assessment on tobacco companies. This proposal was a legitimate buyout plan designed by tobacco-state members for the benefit of their tobacco farming constituents. Instead, the House designed proposal in the conference report forces tobacco farmers to settle for more than $2 billion less than they would have received if the Senate proposal had been accepted. For example, it will pay North Carolina farmers $800 million less than the Senate amendment. It will pay Kentucky farmers $500 million less. That is a very substantial difference. For small farmers who actually tend the land themselves, it is a 25 percent cut in what they will receive. So in reality, the farmers are losers too. Only the tobacco companies who will pay billions less are winners.

The heart of the Senate amendment was the FDA provision-which would lead to fewer children starting to smoke, and to fewer adults suffering with tobacco-induced disease and now that provision is gone. Public health groups told us it was the most important legislation we could pass to deal with the nation's number one health hazard.

We must deal firmly with tobacco company marketing practices that target children and mislead the public. The Food and Drug Administration needs broad authority to regulate the sale, distribution, and advertising of cigarettes and smokeless tobacco.
The tobacco industry currently spends over eleven billion dollars a year to promote its products. The amount has actually grown dramatically since the Master Settlement Agreement was signed.

Much of that money is spent in ways designed to tempt children to start smoking, before they are mature enough to appreciate the enormity of the health risk. The industry knows that 90 percent of smokers begin as children and are addicted by the time they reach adulthood.

Documents obtained from tobacco companies prove, in the companies' own words, the magnitude of the industry's efforts to trap children into dependency on their deadly product. Recent studies by the Institute of Medicine and the Centers for Disease Control show the substantial role of industry advertising in decisions by young people to use tobacco products.

If we are serious about reducing youth smoking, FDA must have the power to prevent industry advertising designed to appeal to children wherever it will be seen by children. The Senate-passed legislation would give FDA the ability to stop tobacco advertising which glamorizes smoking from appearing where it will be seen by significant numbers of children. It grants FDA full authority to regulate tobacco advertising "consistent with and to the full extent permitted by the First Amendment."
FDA authority must also extend to the sale of tobacco products. Nearly every State makes it illegal to sell cigarettes to children under 18, but surveys show that those laws are rarely enforced and frequently violated. FDA must have the power to limit the sale of cigarettes to face-to-face transactions in which the age of the purchaser can be verified by identification. This means an end to self-service displays and vending machine sales, except in adult-only facilities. There must also be serious enforcement efforts with real penalties for those caught selling tobacco products to children. This is the only way to ensure that children under 18 are not able to buy cigarettes.

The FDA conducted the longest rulemaking proceeding in its history, studying which regulations would most effectively reduce the number of children who smoke. Seven hundred thousand public comments were received in the course of that rulemaking. At the conclusion of its proceeding, the Agency promulgated rules on the manner in which cigarettes are advertised and sold.
Due to litigation, most of those regulations were never implemented. If we are serious about curbing youth smoking as much as possible, as soon as possible; it makes no sense to require FDA to reinvent the wheel by conducting a new multi-year rulemaking process on the same issues. The Senate legislation would give the youth access and advertising restrictions already developed by FDA the immediate force of law, as if they had been issued under the new statute.

The legislation also provides for stronger warnings on all cigarette and smokeless tobacco packages, and in all print advertisements. These warnings will be more explicit in their description of the medical problems which can result from tobacco use. The FDA is given the authority to change the text of these warning labels periodically, to keep their impact strong.

Nicotine in cigarettes is highly addictive. Medical experts say that it is as addictive as heroin or cocaine. Yet for decades, tobacco companies have vehemently denied the addictiveness of their products. No one can forget the parade of tobacco executives who testified under oath before Congress that smoking cigarettes is not addictive. Overwhelming evidence in industry documents obtained through the discovery process proves that the companies not only knew of this addictiveness for decades, but actually relied on it as the basis for their marketing strategy. As we now know, cigarette manufacturers chemically manipulated the nicotine in their products to make it even more addictive.

The tobacco industry has a long, dishonorable history of providing misleading information about the health consequences of smoking. These companies have repeatedly sought to characterize their products as far less hazardous than they are. They made minor innovations in product design seem far more significant for the health of the user than they actually were. It is essential that FDA have clear and unambiguous authority to prevent such misrepresentations in the future. The largest disinformation campaign in the history of the corporate world must end.

Given the addictiveness of tobacco products, it is essential that the FDA have the authority to effectively regulate them for the protection of the public health. Over 40 million Americans are currently addicted to cigarettes. No responsible public health official believes that cigarettes should be banned. A ban would leave forty million people without a way to satisfy their drug dependency. FDA should be able to take the necessary steps to help addicted smokers overcome their addiction, and to make the product less toxic for smokers who are unable or unwilling to stop. To do so, FDA must have the authority to reduce or remove hazardous ingredients from cigarettes, to the extent that it becomes scientifically feasible. The inherent risk in smoking should not be unnecessarily compounded.

Recent statements by several tobacco companies make clear that they plan to develop what they characterize as "reduced risk" cigarettes. The Senate legislation would require manufacturers to submit such "reduced risk" products to the FDA for analysis before they can be marketed. No health-related claims would be permitted until they have been verified to the FDA's satisfaction. These safeguards are essential to prevent deceptive industry marketing campaigns, which could lull the public into a false sense of health safety.

Tobacco use kills more Americans every year than AIDS, alcohol, car accidents, murders, suicides and fires combined. Nearly 90 percent of lung cancer cases, nearly 1 in 3 cancer deaths, and 1 in 5 deaths from heart disease are tobacco-related.
Tobacco use results in $75 billion in annual health care costs and $157 billion in total cost. Unfortunately, smoking will remain the number one preventable cause of death in America until Congress is willing to do what it takes to bring this health crisis under control. Congress must vest FDA not only with the responsibility for regulating tobacco products, but with full authority to do the job effectively.

The Senate legislation would give the FDA the legal authority it needs-to reduce youth smoking by preventing tobacco advertising which targets children-to prevent the sale of tobacco products to minors-to help smokers overcome their addiction-to make tobacco products less toxic for those who continue to use them-and to prevent the tobacco industry from misleading the public about the dangers of smoking.

If the conference report is approved in its current form, we will have lost a golden opportunity to address this critical health issue. Congress will have put the well-being of our children last, behind a long parade of special interests clamoring for their tax breaks. It is not enough to just pay lip service to what is right for our children. You have got to be willing to fight for their health and their future. You have to make it a top priority.

While we are extremely disappointed that FDA authority over tobacco products is not in the conference report, this legislation will, I am confident, become law in the not too distant future. It is clearly an idea whose time has come. It passed the Senate on a strong bipartisan vote last summer. I am very pleased that the Senate has agreed to pass a freestanding FDA bill this weekend and send it to the House as a reaffirmation of our support. It is a powerful statement of this body's commitment to protecting the health of our children, and seeing this legislation through to enactment. The battle goes on, and we will prevail.

They have been spectacular spokespersons for children and children's health and we are indebted to that organization.

The list goes on. There are 68 March of Dimes organizations. Every organization in public health is behind this proposal.
Mr. President, I thank my good friend from Ohio. I join him in letting families know we are not going to let up, give up, or give in.
This was a very reasonable measure, a reasonable response. As he has pointed out, it is the most important public health legislation this Congress, or any recent Congress up to the Congress of 7 years ago, when we passed the CHIP program, with the difference this would make in terms of children and children's health. We missed this opportunity. We are not giving up and we are not giving in. We want to let those who are opposed to us know we are coming at them and we are going to keep after this until we get the job done.

Mr. KENNEDY. Mr. President, another provision was included in the bill that passed the Senate and was dropped by the conference as well. We had the dropping of the FDA provisions-which I believe in and of itself is enough to oppose this legislation-but we also know there was another provision that related to how we were going to treat American workers that was dropped.

Since this legislation initially was drafted, in order to respond to the World Trade Organization which found some tax provisions worked in such a way as to violate various international agreements, it was about a $5 billion fix that was needed. Instead, we have a $140 billion solution for a $5 billion fix. Do you hear me? The rest of those are tax goodies for special interests. So since this was allegedly a jobs bill, we thought we would add an amendment to it. The principal sponsor was my friend and colleague
Senator Harkin, who provided such extraordinary leadership on this overtime issue. We added this provision that would effectively declare the proposal of the administration that dealt with denying workers overtime who worked more than 40 hours a week, that we would effectively vitiate the administration's proposal. Since the underlying legislation dealt with workers and the impact on manufacturing and jobs, this was a related matter.

It is useful to remind ourselves how often this institution has addressed the question of the proposal by this President in terms of overtime. We have voted three times in the Senate to reject the administration's proposal to deny overtime. We rejected it on September 10, 54-45; it was a bipartisan effort. On May 4, 52-47. Also on May 4, 99-0. So we acted on that and we added to it.

You can say, well, the House of Representatives has not faced this issue. Our answer to that is the House has faced this issue. They voted October 2, 2003, 221-203, effectively to vitiate the Bush overtime proposal. They voted September 9, 223-193. So that is two times in the House and three times in the Senate. We had it in the conference and, nonetheless, this administration said no.

The administration has said no to an increase in the minimum wage for 7 million Americans who are working at minimum wage.
They said no to an extension of unemployment compensation for workers who paid into the unemployment compensation fund.
And they have said no to eliminating the ban on the elimination of overtime.

I watched the debate, like many other Americans, last night, and I listened to one of the questions that my friend and colleague, the next President of the United States, answered in talking about the lost number of jobs. He indicated that under this administration they had lost 1.6 million jobs. Lo and behold, today, with all the fact-checkers all over the country, they said that is not right; John Kerry should have said they only lost 800,000 jobs. Do you want to know why? The other 800,000 have been added in the public sector. I thought this administration was adding jobs in the private sector. They have failed in the private sector. They are trying to sharpshoot on that issue, and it doesn't go.

Let's look at where we are now in the last month with the administration's economy. They had announcements yesterday that 96,000 jobs had been created last month. It is interesting to note that a third of those jobs are temporary. What does that mean? Temporary jobs pay 40 percent, on average, less than regular jobs. Yes. What else? Temporary jobs don't give you benefits. Very few, if any, give you health insurance, let alone pensions. We have a third temporary jobs, and a third government jobs, and a third private jobs out of the 96,000. So it is not a good time in terms of the American economy.
I want to point this out again and come back to the issue of overtime. As I mentioned, we had passed those provisions in the House and in the Senate. Now the administration continues to want to implement them. Who are the people affected most by overtime? The people who are affected the most by overtime are interesting: Nurses are affected by overtime; nursery school teachers, the ones who are going to work with the children in nursery schools and programs in the Head Start Programs; clerical workers; computer programers, et cetera. These are the ones. Nurses, of course, are first responders.

It is almost as though this administration doesn't understand how hard American families are working in the United States of America. This is an extraordinary chart. This chart demonstrates that Americans' work hours have increased more than in any other industrialized country from 1970 to 2002. It is effectively up 20 percent. The next nearest country is Canada, up 16, and Australia is up 3.2 percent.

Americans are working harder and harder, and they are having an enormous difficulty in keeping pace. They cannot even keep economic pace, in terms of what they have to buy. One of the few benefits, of course, is the question of overtime. What happens when you eliminate overtime? Let's remind the workers who are out there who may be watching; let's remind them of something they know all too well. If you have overtime protections, your chances of working more than 40 hours a week are only 19 percent. But if you don't have overtime protections, your chances of working more than 40 hours a week are 44 percent. That is for 40 hours a week. If it is 50 hours a week, your chances of working are three times more if you don't have the overtime protections than if you do.

Make no mistake on what this is about. This is about exploiting American workers, treating them on the cheap. That is what
this is about.

Well, Senator Kennedy, how can you say that? Let me give a couple of examples why we can say it.

When the Bush rule was in the making, the Department of Labor asked for comment on the proposed regulation. In looking through the records, this is what we find out: Here is when the rule to eliminate overtime was being considered. The administration solicited the views of a number of different groups and industries. Now we have the National Association of Mutual Insurance Companies supports the section:

. . . of the proposed regulations that provides that claims adjustors, including those working for insurance companies, satisfy the FLSAs administrative exemption. . . .

That is from the National Association of Mutual Insurance, June 25, 2003.

On April 23, 2004:

Insurance claims adjustors generally meet the duties requirements for the administrative exemption, whether they work for an insurance company or the other type of company. . . .

There is the industry's interest. There is the administration's answer.

Here is another group that got exemption. Here is the overtime for funeral directors and embalmers:

[T]he National Funeral Directors' Association believes that funeral directors and embalmers who have successfully completed a course of study . . . licensed by the state in which they practice are professional employees.

Then we have:

Licensed funeral directors and embalmers . . .

It is almost the same direct language for industry after industry, right down the line. This was not an issue for simplification. This was looking out for special interests. And who is paying the piper? It is going to be the workers, working longer and harder for less.

As a result, this is what happens in this country:

In the last 3 years, we have seen 800,000 more children who are living in poverty. The total percent of those living in poverty in the United States has grown, but the number of children is 800,000 more living in poverty; 12 million children hungry or on the verge of hunger; 8 million Americans unemployed. Nearly 3 million have lost unemployment benefits since the Republicans ended the program. Seven million low-wage workers waiting 7 years for a minimum-wage increase. These are men and women of dignity. They work hard, play by the rules. They are primarily women. The income of low-income single mothers has gone down by three percent every year in the Bush economy.

There are 7 million who have been waiting for an increase in the minimum wage. Bush 1 supported an increase in the minimum wage. This did not use to be a partisan issue. It was so interesting in the course of this session, when I offered the increase in the minimum wage, when we had what they call the welfare reform proposal, the TANF proposal. What did the Republican leadership do? They pulled the bill so we could not even get a vote on it. Imagine that. They would not even let the Senate of the United States vote on it. I offered it again on the State Department reauthorization bill because the Republican leadership would not give us an opportunity to vote on the minimum wage. What did they do? They pulled that bill, too. They do not even let us get a vote in the Senate on the issue of increasing the minimum wage.

Sixty percent of those who receive the minimum wage are women. One-third of those have children. This is a civil rights issue, a children's issue, a fairness issue. Americans understand if someone is going to work 52 weeks of the year, 40 hours a week, they should not have to live in poverty. But do my colleagues think we have an opportunity to do something about it? No.

Still, we are taking away the-we have 4.3 million more Americans in poverty than when the President took office and we have 2.6 million fewer Americans who have a pension under Bush's watch.

On the issue of overtime, I will take a moment of the Senate's time to relate the concerns of one worker who will be affected by the new regulation. He says:

My name is Randy Flemming. I live in Haysville, KS-outside Wichita-and I work as an Engineering Technician in Boeing's Metrology Lab.

I'm also proud to say that I'm a military veteran. I served in the U.S. Air Force from August 1973 until February 1979.
I've worked for Boeing for 23 years. During that time, I've been able to build a good, solid life for my family and I've raised a son who now has a good career and children of his own. There are two things that helped make that possible.

First, the training I received in the Air Force made me qualified for a good civilian job. That was one of the main attractions when I enlisted as a young man back in Iowa. I think it's still one of the main reasons young people today decide to enlist. Military training opens up better job opportunities-and if you don't believe me, just look at the recruiting ads on TV.

The second thing is overtime pay. That's how I was able to give my son the college education that has opened doors for him. Some years, when the company was busy and I had those college bills to pay, overtime pay was probably 10 percent or more of my income. My daughter is next. Danielle is only 8, but we'll be counting on my overtime to help get her a college degree, too, when that time comes. For my family overtime pay has made all the difference.

That's where I'm coming from. Why did I come to Washington? I came to talk about an issue that is very important back home and to me personally as a working man, a family man and a veteran. The issue is overtime rights.

The changes that this administration is trying to make in the overtime regulations would break the government's bargain with the men and women in the military and would close down opportunities that working vets and their families thought that they could count on.

When I signed up back in 1973, the Air Force and I made a deal that I thought was fair. They got a good chunk of my time and I got training to help me build the rest of my life. There was no part of that deal that said I would have to give up my right to overtime pay.

This was the threat that was going to be under the initial regulations and rules by the Department of Labor that said the training in the military would count as professional training for the first time in the history, if you got the training in the military. Then they pulled those regulations back and they changed the language around. Interestingly, all they had to do was just say, for veterans it did not count. But the Department of Labor would not do that, and many of the veterans groups still feel that they are threatened by the existing rules and regulations.

And then he continues:

You've heard of the marriage penalty? Well, I think that what these new rules do is create a military penalty. If you got your training in the military, no matter what your white collar profession is, your employer can make you work as many hours as they want and not pay you a dime extra. If that's not bait and switch, I don't know what it is. . . .

I'm luckier than some other veterans because I have a union contract that will protect my rights for a while anyway. But we know the pressure will be on, because my employer is one that pushed for these new rules and they've been trying hard to get rid of our union.

And for all those who want to let these military penalty rules go through, I have a deal I'd like to propose. If you think it's okay for the government to renege on its deal, I think it should be your job to tell our military men and women in Iraq that when they come home, their service to their country will be used as a way to cut their overtime pay.

I am still very concerned about those provisions. The administration says it has addressed it. It did not address it the way the
veterans want.

We should not be about cutting off overtime when we are having the economic challenges we are facing in this country today. It is the wrong economic policy. It is unfair and it was wrong for the administration to cut this out.

There is one final point I want to make on the proposal we have before us.

How much time do I have remaining?

The PRESIDING OFFICER. The Senator from Massachusetts has 16½ minutes remaining.

Mr. KENNEDY. Mr. President, there is one other provision of this underlying conference report I want to address. A top worry of many Americans is that their jobs may be shipped overseas. We have heard for years about manufacturing jobs being sent to other countries. Today, millions of Americans with other types of jobs face that risk, too. Every day we hear new stories about jobs in health care, financial services, information technologies going overseas in this high-tech age.

Yet, the Bush administration says shipping jobs overseas is a good thing. It was in the President's own annual economic report:
When a good or service is produced more cheaply abroad, it makes more sense to import it than to make it or provide it domestically.

The President's chief economic adviser Gregory Mankiw has even said that shipping jobs to other countries is "probably a plus for the economy in the long run."

Treasury Secretary Snow has also defended corporations sending jobs overseas, saying they need to do what they need to do. He said anything that makes a company more competitive, including offshoring jobs, is good for corporate shareholders, it is good for their consumers, and it is good for their employees.

As recently as July, John Marburger, the President's science adviser, said that shipping jobs overseas is not necessarily a bad thing. American workers deserve better than this. They deserve better than to have their jobs exported with the President as the cheerleader in chief waving goodbye.

Shipping jobs overseas is a problem that is only going to grow. Experts project 3.4 million jobs, with total wages worth more than $150 billion, could be sent overseas in the next 11 years, including more than a half-million computer jobs and more than 600,000 business and management jobs. Lou Dobbs on CNN is keeping a running tally of companies that have sent jobs overseas. He is now at almost a thousand companies.

Many jobs that have already gone overseas have been in manufacturing. This is a loss that has taken a heavy toll on our economy. We have lost nearly 2.7 million manufacturing jobs since this Bush administration took office. It is a nationwide problem affecting almost every State in the Union. Forty-seven of the 50 States have lost manufacturing jobs under this President. For example, Ohio has lost 165,000 manufacturing jobs; Pennsylvania has lost 150,000 jobs; Massachusetts, my home State, has lost 84,000 jobs; Texas, the President's home State, has lost 170,000 manufacturing jobs.

The loss of these manufacturing jobs is especially serious because they pay good wages and benefits, and each manufacturing job creates close to three other jobs in other sectors of the economy.

As this chart indicates, for every 100 jobs in retail, they create 88 more jobs; for every 100 jobs in business services, they create 154 jobs; for every 100 jobs in manufacturing, 291.

The Bush administration wants to ignore this serious problem, too. They have suggested cooking the books to create the appearance of job growth in the manufacturing sector. They want to count flipping hamburgers and other fast food jobs as manufacturing jobs to make up for the loss of millions of manufacturing jobs under President Bush's watch.

Providing more tax breaks for multinational corporations is the wrong thing to do, and that is exactly what this bill does. For any of those Members who are interested in the particular details, they ought to just read Senator Bob Graham's excellent presentation on this very point. He has addressed the Senate frequently on it, and has identified it.

I have not the time this afternoon to go into it, but I want to give assurance to the Members on this, that we are providing in this legislation tax breaks for multinational corporations. It is more than the loss of the $40 billion in tax revenue which has been added in this jobs bill that could be used for many better purposes that is troubling. What is most disturbing is the fact that many of these international provisions will actually encourage companies to shift even more American jobs to low-wage countries.

The international provisions should have been removed from the bill and the tax dollars saved should be used to increase the tax benefits for domestic manufacturing. It makes no sense to expand the value of the foreign tax credits which multinational corporations receive.

Under the legislation, these companies would pay even less in U.S. taxes on the profits they earn from their business abroad than they do today-$40 billion less. This will create further incentives for them to move jobs abroad, undermining the intent of the legislation.

From the perspective of preserving American jobs, one of the worst features of this corporate tax law is a special tax subsidy for multinationals known as deferral. If a U.S. company moves its operation abroad, it can defer paying U.S. taxes on the profits it makes overseas until the companies choose to send those profits back to America.

In essence, it allows the corporation to decide when it will pay the taxes it owes the U.S. Government. That is a luxury that companies making products and providing services here at home do not have. This is an enormous competitive advantage which the Tax Code gives to companies doing the wrong thing, eliminating American jobs, over companies doing the right thing, preserving the jobs in the United States. That feature alone ought to be enough to have Members of this body vote no at the time of the consideration of the conference report.

I appreciate the indulgence of the Chair. I will reserve the remainder of my time.

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