Bipartisan NO Tobacco for Kids Act of 1998

TABLE OF CONTENTS:

Title I: Price Increase to Discourage Child Tobacco Use

Title II: FDA Jurisdiction Over Tobacco Products

Title III: Performance Objectives to Reduce Child Tobacco

Use

Title IV: Smoke-Free Environments

Title V: Tobacco Prevention Initiatives

Title VI: International Tobacco Control

Title VII: Tobacco Accountability Board

Title VIII: Payments to States

Subtitle A: Resolution of State Actions

Subtitle B: State Grants

Subtitle C: Castano Actions

Title IX: Definitions

Bipartisan NO Tobacco for Kids Act of 1998 - Title I: Price Increase to Discourage Child Tobacco Use - Requires that the funds raised by this title be used to reduce the public debt, except as provided in titles V and VIII.

(Sec. 102) Requires each tobacco manufacturer (defining manufacturer, for this Act, to include importers) to make initial ($10 billion dollars allocated by the manufacturer's share of units manufactured or imported) and annual (50 cents per unit manufactured or imported) payments. Excludes exports.

(Sec. 103) Provides for injunctions and civil monetary penalties for failure to comply with regulations under this title.

Title II: FDA Jurisdiction Over Tobacco Products - Amends the Federal Food, Drug, and Cosmetic Act (FDCA) to add nicotine in tobacco products to the definition of "drug" and add tobacco products to the definition of "device."

(Sec. 203) Declares a tobacco product misbranded if it does not comply with section 205 requirements. Amends restricted device provisions to authorize the Secretary of Health and Human Services, if the Secretary determines that there cannot otherwise be reasonable assurances of safety and effectiveness, to require tobacco advertising and promotion restrictions. Prohibits State and local requirements of warnings on labels and in advertising if this Act requires a warning.

(Sec. 204) Requires that all provisions of specified existing tobacco regulations be considered lawful and lawfully promulgated under the FDCA.

(Sec. 205) Deems, for tobacco products, an action providing appropriate protection of public health to provide a reasonable assurance of safety and effectiveness.

Mandates regulations, conforming to specified provisions of the Proposed Resolution between manufacturers and State attorneys general on June 20, 1997: (1) restricting tobacco marketing, advertising, and access (but prohibits restrictions on marketing or advertising that would violate the first amendment to the Constitution); (2) requiring warnings on cigarette and smokeless tobacco labeling and advertisements; and (3) regarding tobacco product ingredients. Makes it unlawful to advertise tobacco on any electronic medium subject to the jurisdiction of the Federal Communications Commission. Prohibits considering the Secretary of Health and Human Services' failure to approve or disapprove an ingredient's safety within the review period to be approval. Prohibits a manufacturer from stating or implying in labeling or advertising that a product has a reduced health risk unless the Secretary has so determined.

Prohibits a State from receiving a grant under subtitle B of title VIII of this Act unless the State has put into law a tobacco control program conforming to the model State program established by the Secretary.

Mandates establishment of that model program, including in its requirements State retail licensure, a prohibition of tobacco purchase for resale or distribution to individuals under 18, compliance inspection conduct and frequency, State performance objectives, and violations penalties. Requires, if a State fails to implement a conforming program or fails to achieve the performance objectives, that the Secretary withhold up to 20 percent of the grant to the State under subtitle B of title VIII of this Act. Mandates a Federal retail licensing program for retailers on Federal property, retailers in a State without an effective program conforming to the model program, and others as specified by the Secretary. Authorizes the Secretary to order a State-licensed retailer in violation of this Act to suspend or cease tobacco sales. Treats Indian tribes and tribal organizations as a State regarding retailers operating on Indian reservations.

(Sec. 206) Adds violation of any FDCA tobacco requirement to the list of FDCA prohibited acts. Authorizes the Secretary to disclose tobacco information to the public if the Secretary determines it appropriate to protect public health.

(Sec. 207) Repeals the Federal Cigarette Labeling and Advertising Act and the Comprehensive Smokeless Tobacco Health Education Act of 1986.

Title III: Performance Objectives to Reduce Child Tobacco Use - Mandates an annual survey regarding the percentage of children using each manufacturer's tobacco product.

(Sec. 302) Requires each manufacturer to have a performance objective of reducing its child tobacco use by specified percentages. Requires, if the reductions are not met, price increases and, for subsequent consecutive year failures, sales by carton minimum and packaging in black on a white background.

(Sec. 306) Makes failure to comply with this title's requirements an FDCA prohibited act.

(Sec. 307) Requires that the annual survey determine the use level for children of different racial and ethnic backgrounds. Mandates, if use is increasing (or not decreasing at a proportionate rate) among children of a racial or ethnic background, recommendations to the Congress regarding reducing the level for those children.

Title IV: Smoke-Free Environments - Requires the responsible entity for each public facility (any building in which activities substantially affecting interstate commerce occur, subject to exceptions for locations such as residential buildings, on-sale alcoholic beverage establishments, and prisons) to implement a smoke-free environment policy meeting specified requirements. Allows smoking areas meeting certain requirements.

(Sec. 402) Authorizes an action to enforce this title (by injunction or civil monetary penalty) by any aggrieved person, State or local governmental agency, or the Administrator of the Environmental Protection Agency, allowing the award of litigation costs (including attorney's and expert fees) to any prevailing party. Authorizes the court to order that the civil penalties be used for projects furthering this title. Prohibits compensatory and punitive damages.

(Sec. 403) Authorizes the Administrator to extend the smoke-free policy requirement to certain otherwise-exempt facilities if the Administrator determines that the extension is appropriate to protect the public health.

(Sec. 405) Declares that this title does not preempt or affect any other Federal, State, or local law providing protection from environmental tobacco health hazards.

Title V: Tobacco Prevention Initiatives - Requires that funds be made available (from annual manufacturer payments under section 102) to the Secretary of Health and Human Services, without fiscal year limitation, for: (1) a national public awareness campaign to discourage tobacco use; (2) the implementation of FDCA tobacco provisions, title III of this Act, and Tobacco Accountability Board provisions of this Act; (3) tobacco use cessation programs (mandating grants); (4) research on nicotine addiction, cessation, and prevention; and (5) tobacco surveillance and epidemiology research. Requires that certain programs under this title: (1) take into account the needs of minority populations; and (2) be age, culturally, and linguistically appropriate for those populations.

Title VI: International Tobacco Control - Mandates regulations to prohibit domestic concerns from directly or indirectly: (1) selling or distributing tobacco in a foreign country without warning labels appropriate to protect public health; or (2) selling or distributing tobacco in a foreign country to children or advertising or promoting it in a way that appeals to children. Adds violations to the list of FDCA prohibited acts.

(Sec. 602) Prohibits any U.S. officer, employee, department, or agency from: (1) promoting tobacco export or foreign sale, manufacture, promotion, distribution, or use; or (2) subject to exception, seeking the removal or reduction of foreign restrictions on tobacco importation, exportation, sale, manufacture, promotion, distribution, tariffs, or taxes.

(Sec. 603) Establishes in the Treasury the International Tobacco Control Trust Fund, to be funded by payments under section 605. Provides for the use of Fund amounts for: (1) the American Center on Global Health and Tobacco; (2) grants and other assistance to foreign governments, nongovernmental organizations, and international organizations for foreign tobacco control; and (3) enforcement of any requirement regarding foreign tobacco sale, distribution, or promotion.

(Sec. 604) Establishes the American Center on Global Health and Tobacco (ACT) as a private, nonprofit corporation, requiring it to assist foreign organizations to reduce and prevent tobacco use, including through public awareness campaigns and youth-oriented and community-based programs.

(Sec. 605) Requires each domestic concern that manufactures tobacco in a foreign country (or controls a person who does so) to annually pay to the Fund a specified amount per unit manufactured.

(Sec. 606) Mandates regulations to reduce tobacco smuggling in interstate and foreign commerce.

(Sec. 607) Declares that it is the sense of the Congress that the Government should support implementation of the International Framework Convention on Tobacco Control through all available resources.

Title VII: Tobacco Accountability Board - Establishes the Tobacco Accountability Board as an independent board. Requires each tobacco manufacturer to submit to the Board all documents in the manufacturer's possession: (1) relating to tobacco health effects (including addiction), the manipulation of nicotine, or tobacco sale or marketing to children; or (2) produced or ordered to be produced in a named civil action. Requires the Board to make the documents available to the public. Exempts trade secrets from public disclosure unless the Board determines that disclosure is appropriate to protect the public health.

(Sec. 703) Requires the Board to investigate all matters relating to tobacco and public health and report to the Congress annually.

(Sec. 705) Empowers the Board to bring an action to enjoin a failure to comply with this title or to impose a civil monetary penalty.

(Sec. 707) Prohibits discrimination against an individual as a reprisal for disclosing information regarding a violation of tobacco-related law. Applies to whistleblowers existing provisions of Federal law allowing whistleblowers to receive a portion of any false claims amounts recovered.

Title VIII: Payments to States - Subtitle A: Resolution of State Actions - Allows a State to elect to receive payments under section 802 instead of seeking recovery from manufacturers for health care costs attributable to tobacco use. Prohibits a State that so elects from seeking recovery from manufacturers, except for actions after enactment of this Act or for criminal prosecutions.

(Sec. 802) Directs the Secretary of the Treasury to pay to any State so electing the amount the State would have received under the Proposed Resolution between manufacturers and State attorneys general.

Requires a State to pass payments through to local governments in proportion to the local government's tobacco use health care costs. Makes a State that fails to pass through payments ineligible for this section's future payments.

(Sec. 803) Exempts a manufacturer from the portion of the section 102 payments that will be provided to States under this title if the manufacturer: (1) resolved tobacco-related civil actions with more than 25 States before 1998; (2) provided to all other States the opportunity to enter into substantially similar settlements; and (3) manufactures less than three percent of all cigarettes manufactured or imported in the United States.

Subtitle B: State Grants - Requires that funds be made available annually from amounts paid under section 102, without fiscal year limitation, for grants to States with approved child-oriented or community-based programs to discourage tobacco use.

(Sec. 812) Amends title XIX (Medicaid) of the Social Security Act to authorize payment to States for a specified percentage of the State's Medicaid expenditures for tobacco use cessation programs.

Subtitle C: Castano Actions - Provides that the rights and benefits afforded in titles III and V are provided in settlement of, and shall constitute the exclusive remedy for the purpose of determining, civil liability as to addiction-dependency claims asserted in specified civil actions against the manufacturers of cigarettes and others (referred to as Castano actions). Preempts and settles all bases for any such claim under State laws, with reservation of the rights of individual class members to pursue their claims in a civil action not based on addiction or dependency in accordance with this Act. Specifies that, for purposes of determining the applicable statute of limitation or repose, individual actions filed by those who were included within such class actions shall be considered to have been filed as of the filing date of the original class action.

Establishes an Arbitration Panel for purposes of awarding attorney's fees and expenses relating to litigation affected by, or legal services that resulted in, this Act. Sets forth provisions regarding the right to petition the Panel, criteria in making awards, appeal and enforcement, the source and payment of awards, and the validity and enforceability of private agreements with respect to the allocation or division of attorney's fees.

Title IX: Definitions - Sets forth definitions for this Act.