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Floor Speech
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Mr. DURBIN. Mr. President, having experienced legislative efforts of both the House of Representatives and the Senate, it would be a surprise to many people to learn that many Members come to the floor to address issues of personal importance to them, something that happened in their lives that motivates them to take up an issue, introduce a bill, try to create a new law.
That happened to me in the House of Representatives many, many years ago when I first confronted the tobacco issue. I lost my father to lung cancer when I was 14 years old, and it was a profound experience, as you might guess, in my life.
And I remembered what he went through in the last 100 days of his life, fighting lung cancer and, eventually, succumbing to it.
And so I took on the tobacco issue in the House of Representatives on a personal basis as well as a public basis, trying to reduce the power which the Big Tobacco lobby had in the House of Representatives. And when I arrived there in 1982, they were the most powerful lobby in Washington.
We were warned as new Members of Congress on both sides--Democratic and Republican--don't touch the tobacco issue. It is an issue that is very important for us to maintain our majority, and you shouldn't bring it up.
Well, I ignored that advice and introduced several ideas on reducing the power of the tobacco lobby on Capitol Hill. The one issue that I pursued with success had a profound impact on this country--much more than I ever imagined. I introduced the first bill, successful bill, in the House of Representatives to ban smoking on airplanes.
It seems so obvious today that it would be a fiction to suggest that there is a smoking and nonsmoking section on an airplane. We know that those people who were smoking were generating secondhand smoke, which was dangerous as well.
Well, with an amazing bipartisan majority, we passed my bill to ban smoking on airplanes. It was taken up by Senator Frank Lautenberg here in the U.S. Senate successfully, signed into law, and the rest is history, as they say.
What we did not anticipate was that this law, in and of itself, was going to be a tipping point. People thought and said: Wait a minute, if secondhand smoke is dangerous in an airplane, why wouldn't it be dangerous in a bus? on a train? in an office? in a hospital? in a place of work? in a restaurant? And the next thing you know, we saw a dramatic change over the years in the attitude towards smoking.
New Members of Congress historically, before that was passed, would head to the stationery shop as soon as they were elected to buy an ashtray to put on the coffee table in their office for those visitors who wanted to smoke while they were meeting with the Senators and Congressmen. That is unthinkable today. I am not even sure they sell the ashtrays anymore. They used to be embossed with a big Congressional seal.
Things started changing across America, and one of the things that led to that change was the discussion of the impact of tobacco on children.
We knew that tobacco, with its chemical nicotine, was addictive. And we knew that kids, naturally, being told not to touch a tobacco product, started using them as soon as they could; and many of them developed an addiction even before they graduated from high school. So we started requiring warning labels and restricting retail sales to try to protect kids from this addiction.
It was an ongoing battle because the tobacco companies were powerful and profitable and had many friends in high places, particularly here in Washington. I continued that battle over the years in the House and in the Senate with some success, dramatically reducing the percentage of children who were using tobacco.
The tobacco companies knew that they were in trouble. That was their source of addicted people who, when they became adults, bought their products for the rest of their lives until they died from that addiction.
And so these tobacco companies started a new campaign. It wasn't based on tobacco but on the chemical nicotine and the addictive nature of it. And they created something called vaping and e-cigarettes. And who did they go after? Kids, of course.
They had fruit-flavored vaping devices that looked like they belong in a computer or in a school bag going off to grade school and high school. And these kids started buying them and using them; and so I switched my campaign not exclusively from tobacco but to vaping as their latest Big Tobacco product that was addicting children.
I have asked the Food and Drug Administration, through many administrations, to basically police this product as they would a tobacco product, and they have promised that they would. I come here today to make a report, one very good piece of news and one very bad piece of news about that effort.
First, I want to thank the Supreme Court which, on Monday, left in place a California law banning the sale of flavored cigarettes. That is great news for kids and communities of color who have been preyed upon by Big Tobacco's aggressive marketing with flavored products.
We know that flavors play a unique role in hooking new smokers because they mask the harsh taste of tobacco and turbocharge the addictiveness of nicotine.
In particular, we know that menthol cigarettes have been purposely targeted at Black communities for decades with heavy advertising, sponsorship of events, and free samples. It has contributed to the fact that Black adults in America are 30 percent more likely to die from heart disease and 50 percent more likely to die from a stroke compared to Whites.
There is a Federal proposal on the table now to prohibit the manufacturing and retail sale of menthol cigarettes. That rule would save an estimated 650,000 lives, including 255,000 Black Americans. It would eliminate the racial disparity in lung cancer deaths between Black and White Americans.
I know this President cares deeply about the toll of cancer. It has touched his family personally, as it has mine. If we want to make a difference in the health of Americans and set a legacy for future generations, then the administration must finalize this public health measure to end Big Tobacco's predatory promotion of menthol cigarettes. Lives hang in the balance. That is the good news out of California and the Supreme Court.
Here is the bad news. Robert Califf is the head of the Food and Drug Administration. Two years ago, he was approved by the Senate in a very close vote; it was 50 to 46. If two Senators had gone the other way, he would not be the Commissioner of the Food and Drug Administration.
He came to my office and made a plea that I vote for him. I was planning on voting against him. He ended up getting five Democrats voting against him and six Republicans who voted for him, and that made the difference in the final rollcall.
On the final rollcall, because he looked me in the eye in my office in this building and promised that he would take on the vaping interests, I voted for him. It has been a miserable disappointment to see what he has done with that office when it comes to this issue.
As the calendar turns to 2024 and the new year, I am afraid that it has not brought any change in the Food and Drug Administration's shameful, abysmal job of preventing tobacco companies from addicting our children.
On January 1, the Food and Drug Administration missed yet another court-imposed deadline to finish reviewing e-cigarette applications. Even after repeated delays, the FDA had told the U.S. district court for Maryland that it would finish reviewing e- cigarette applications by December 31, 2023. It failed. That deadline came and went.
The FDA is now 28 months past the original court-ordered deadline to complete this review. That is not only unacceptable, it is embarrassing.
Here is why that is a problem: The law is clear that no vaping or tobacco product can be put on the market without first proving-- proving--to the FDA that it is--listen--``appropriate for the protection of public health.''
In other words, the industry, the vaping industry, has the legal burden of proof to prove that their product will protect the public health. Vaping companies cannot do that. We know they can't. Yet thousands of products continue to flood store shelves and addict America's children without having met that bar of proof.
The FDA has the power and the responsibility to protect public health by enforcing this premarket review requirement, but it appears to be giving Big Tobacco a free pass day after day, week after week, month after month, despite court orders to the contrary.
While the FDA has missed a court-ordered deadline, it also failed to meet a statutory deadline for the regulation of synthetic nicotine products, an authority that the FDA asked us in Congress to provide. You see, vaping companies thought they found a loophole in the law by using nicotine that was synthesized in a lab, rather than derived from a tobacco leaf. They thought they could skirt FDA regulation by exploiting this ambiguity in the law.
The same FDA Commissioner I referenced earlier, Dr. Robert Califf, testified to the Senate: We have to close this loophole. He pleaded with us to close it, and we did.
Senators Collins, Murkowski, and several others joined me to lead a bipartisan effort to clarify FDA's jurisdiction over synthetic nicotine. The new law required the FDA to clear the market of all unauthorized synthetic nicotine products by July 13, 2022--18 months ago--and they have failed. After asking us for this authority, after our passing the law and having it signed by the President, they have ignored the law and the requirement to clear the shelves since 2022. Since then, FDA has failed to issue a single marketing denial for a synthetic nicotine vaping application.
Worse yet, e-cigarettes using synthetic nicotine are now the most popular tobacco products used by children. There are many examples of that. Think about that for a moment. The FDA Commissioner comes here and says: My hands are tied. I cannot regulate e-vaping to protect kids because they are using synthetic nicotine and we are not sure the law covers it.
We change the law and tell them: Now you can proceed. Enforce this law that you have asked for, and do it 2 years ago to make sure these products are not on the shelves.
They ignore it. After calling for our passage of the bill, they ignore the reality, and the shelves are stocked with these e-cigarette synthetic nicotine products that kids are using across America.
The consequences for our children are devastating. According to the Surgeon General, e-cigarettes can damage lungs, heart, mental health, and parts of the brain that control attention and learning. Don't just take it from me. I recently received a letter from the Chicago Teachers Union. Here is what it said:
Teachers have noticed a growing frequency of disposable vapes in our schools. These products come in colorful packages and fruity, kid-friendly flavors that are pushed on social media. . . . Some even look like school supplies.
And it is not just the big cities like Chicago. Last month, I also received a letter from the regional superintendent of schools for five of the rural areas, southernmost parts of Illinois: Alexander, Jackson, Perry, Pulaski, and Union Counties. They said:
While most young people view smoking as no longer cool, they look at vaping differently . . . as being a ``healthy'' and cool alternative.
The FDA was given the tools to protect our kids and consistently failed to do it under Dr. Robert Califf, head of the FDA.
Here is what I want to make clear today: February 14 is the second anniversary of Robert Califf's approval by the U.S. Senate. By that date, by February 14, I expect his compliance and the compliance of the FDA with all of these court-ordered mandates which they have ignored for months and years. What is at stake? The health of our kids and their addiction. If Dr. Califf cannot exercise the authority of the FDA, it is time that we put somebody in who will.
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