[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1256 Enrolled Bill (ENR)]
H.R.1256
One Hundred Eleventh Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the sixth day of January, two thousand and nine
An Act
To protect the public health by providing the Food and Drug
Administration with certain authority to regulate tobacco products, to
amend title 5, United States Code, to make certain modifications in the
Thrift Savings Plan, the Civil Service Retirement System, and the
Federal Employees' Retirement System, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

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(a) Short Title.--This division may be cited as the ``Family
Smoking Prevention and Tobacco Control Act''.
(b) Table of Contents.--The table of contents of this division is
as follows:

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TITLE I

-AUTHORITY OF THE FOOD AND DRUG ADMINISTRATION

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TITLE II

-TOBACCO PRODUCT WARNINGS; CONSTITUENT AND SMOKE CONSTITUENT

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The Congress finds the following:
(1) The use of tobacco products by the Nation's children is a
pediatric disease of considerable proportions that results in new
generations of tobacco-dependent children and adults.
(2) A consensus exists within the scientific and medical
communities that tobacco products are inherently dangerous and
cause cancer, heart disease, and other serious adverse health
effects.
(3) Nicotine is an addictive drug.
(4) Virtually all new users of tobacco products are under the
minimum legal age to purchase such products.
(5) Tobacco advertising and marketing contribute significantly
to the use of nicotine-containing tobacco products by adolescents.
(6) Because past efforts to restrict advertising and marketing
of tobacco products have failed adequately to curb tobacco use by
adolescents, comprehensive restrictions on the sale, promotion, and
distribution of such products are needed.
(7) Federal and State governments have lacked the legal and
regulatory authority and resources they need to address
comprehensively the public health and societal problems caused by
the use of tobacco products.
(8) Federal and State public health officials, the public
health community, and the public at large recognize that the
tobacco industry should be subject to ongoing oversight.
(9) Under article I, section 8 of the Constitution, the
Congress is vested with the responsibility for regulating
interstate commerce and commerce with Indian tribes.
(10) The sale, distribution, marketing, advertising, and use of
tobacco products are activities in and substantially affecting
interstate commerce because they are sold, marketed, advertised,
and distributed in interstate commerce on a nationwide basis, and
have a substantial effect on the Nation's economy.
(11) The sale, distribution, marketing, advertising, and use of
such products substantially affect interstate commerce through the
health care and other costs attributable to the use of tobacco
products.
(12) It is in the public interest for Congress to enact
legislation that provides the Food and Drug Administration with the
authority to regulate tobacco products and the advertising and
promotion of such products. The benefits to the American people
from enacting such legislation would be significant in human and
economic terms.
(13) Tobacco use is the foremost preventable cause of premature
death in America. It causes over 400,000 deaths in the United
States each year, and approximately 8,600,000 Americans have
chronic illnesses related to smoking.
(14) Reducing the use of tobacco by minors by 50 percent would
prevent well over 10,000,000 of today's children from becoming
regular, daily smokers, saving over 3,000,000 of them from
premature death due to tobacco-induced disease. Such a reduction in
youth smoking would also result in approximately $75,000,000,000 in
savings attributable to reduced health care costs.
(15) Advertising, marketing, and promotion of tobacco products
have been especially directed to attract young persons to use
tobacco products, and these efforts have resulted in increased use
of such products by youth. Past efforts to oversee these activities
have not been successful in adequately preventing such increased
use.
(16) In 2005, the cigarette manufacturers spent more than
$13,000,000,000 to attract new users, retain current users,
increase current consumption, and generate favorable long-term
attitudes toward smoking and tobacco use.
(17) Tobacco product advertising often misleadingly portrays
the use of tobacco as socially acceptable and healthful to minors.
(18) Tobacco product advertising is regularly seen by persons
under the age of 18, and persons under the age of 18 are regularly
exposed to tobacco product promotional efforts.
(19) Through advertisements during and sponsorship of sporting
events, tobacco has become strongly associated with sports and has
become portrayed as an integral part of sports and the healthy
lifestyle associated with rigorous sporting activity.
(20) Children are exposed to substantial and unavoidable
tobacco advertising that leads to favorable beliefs about tobacco
use, plays a role in leading young people to overestimate the
prevalence of tobacco use, and increases the number of young people
who begin to use tobacco.
(21) The use of tobacco products in motion pictures and other
mass media glamorizes its use for young people and encourages them
to use tobacco products.
(22) Tobacco advertising expands the size of the tobacco market
by increasing consumption of tobacco products including tobacco use
by young people.
(23) Children are more influenced by tobacco marketing than
adults: more than 80 percent of youth smoke three heavily marketed
brands, while only 54 percent of adults, 26 and older, smoke these
same brands.
(24) Tobacco company documents indicate that young people are
an important and often crucial segment of the tobacco market.
Children, who tend to be more price sensitive than adults, are
influenced by advertising and promotion practices that result in
drastically reduced cigarette prices.
(25) Comprehensive advertising restrictions will have a
positive effect on the smoking rates of young people.
(26) Restrictions on advertising are necessary to prevent
unrestricted tobacco advertising from undermining legislation
prohibiting access to young people and providing for education
about tobacco use.
(27) International experience shows that advertising
regulations that are stringent and comprehensive have a greater
impact on overall tobacco use and young people's use than weaker or
less comprehensive ones.
(28) Text only requirements, although not as stringent as a
ban, will help reduce underage use of tobacco products while
preserving the informational function of advertising.
(29) It is in the public interest for Congress to adopt
legislation to address the public health crisis created by actions
of the tobacco industry.
(30) The final regulations promulgated by the Secretary of
Health and Human Services in the August 28, 1996, issue of the
Federal Register (61 Fed. Reg. 44615-44618) for inclusion as part
897 of title 21, Code of Federal Regulations, are consistent with
the first amendment to the United States Constitution and with the
standards set forth in the amendments made by this subtitle for the
regulation of tobacco products by the Food and Drug Administration,
and the restriction on the sale and distribution of, including
access to and the advertising and promotion of, tobacco products
contained in such regulations are substantially related to
accomplishing the public health goals of this division.
(31) The regulations described in paragraph (30) will directly
and materially advance the Federal Government's substantial
interest in reducing the number of children and adolescents who use
cigarettes and smokeless tobacco and in preventing the life-
threatening health consequences associated with tobacco use. An
overwhelming majority of Americans who use tobacco products begin
using such products while they are minors and become addicted to
the nicotine in those products before reaching the age of 18.
Tobacco advertising and promotion play a crucial role in the
decision of these minors to begin using tobacco products. Less
restrictive and less comprehensive approaches have not and will not
be effective in reducing the problems addressed by such
regulations. The reasonable restrictions on the advertising and
promotion of tobacco products contained in such regulations will
lead to a significant decrease in the number of minors using and
becoming addicted to those products.
(32) The regulations described in paragraph (30) impose no more
extensive restrictions on communication by tobacco manufacturers
and sellers than are necessary to reduce the number of children and
adolescents who use cigarettes and smokeless tobacco and to prevent
the life-threatening health consequences associated with tobacco
use. Such regulations are narrowly tailored to restrict those
advertising and promotional practices which are most likely to be
seen or heard by youth and most likely to entice them into tobacco
use, while affording tobacco manufacturers and sellers ample
opportunity to convey information about their products to adult
consumers.
(33) Tobacco dependence is a chronic disease, one that
typically requires repeated interventions to achieve long-term or
permanent abstinence.
(34) Because the only known safe alternative to smoking is
cessation, interventions should target all smokers to help them
quit completely.
(35) Tobacco products have been used to facilitate and finance
criminal activities both domestically and internationally. Illicit
trade of tobacco products has been linked to organized crime and
terrorist groups.
(36) It is essential that the Food and Drug Administration
review products sold or distributed for use to reduce risks or
exposures associated with tobacco products and that it be empowered
to review any advertising and labeling for such products. It is
also essential that manufacturers, prior to marketing such
products, be required to demonstrate that such products will meet a
series of rigorous criteria, and will benefit the health of the
population as a whole, taking into account both users of tobacco
products and persons who do not currently use tobacco products.
(37) Unless tobacco products that purport to reduce the risks
to the public of tobacco use actually reduce such risks, those
products can cause substantial harm to the public health to the
extent that the individuals, who would otherwise not consume
tobacco products or would consume such products less, use tobacco
products purporting to reduce risk. Those who use products sold or
distributed as modified risk products that do not in fact reduce
risk, rather than quitting or reducing their use of tobacco
products, have a substantially increased likelihood of suffering
disability and premature death. The costs to society of the
widespread use of products sold or distributed as modified risk
products that do not in fact reduce risk or that increase risk
include thousands of unnecessary deaths and injuries and huge costs
to our health care system.
(38) As the National Cancer Institute has found, many smokers
mistakenly believe that ``low tar'' and ``light'' cigarettes cause
fewer health problems than other cigarettes. As the National Cancer
Institute has also found, mistaken beliefs about the health
consequences of smoking ``low tar'' and ``light'' cigarettes can
reduce the motivation to quit smoking entirely and thereby lead to
disease and death.
(39) Recent studies have demonstrated that there has been no
reduction in risk on a population-wide basis from ``low tar'' and
``light'' cigarettes, and such products may actually increase the
risk of tobacco use.
(40) The dangers of products sold or distributed as modified
risk tobacco products that do not in fact reduce risk are so high
that there is a compelling governmental interest in ensuring that
statements about modified risk tobacco products are complete,
accurate, and relate to the overall disease risk of the product.
(41) As the Federal Trade Commission has found, consumers have
misinterpreted advertisements in which one product is claimed to be
less harmful than a comparable product, even in the presence of
disclosures and advisories intended to provide clarification.
(42) Permitting manufacturers to make unsubstantiated
statements concerning modified risk tobacco products, whether
express or implied, even if accompanied by disclaimers would be
detrimental to the public health.
(43) The only way to effectively protect the public health from
the dangers of unsubstantiated modified risk tobacco products is to
empower the Food and Drug Administration to require that products
that tobacco manufacturers sold or distributed for risk reduction
be reviewed in advance of marketing, and to require that the
evidence relied on to support claims be fully verified.
(44) The Food and Drug Administration is a regulatory agency
with the scientific expertise to identify harmful substances in
products to which consumers are exposed, to design standards to
limit exposure to those substances, to evaluate scientific studies
supporting claims about the safety of products, and to evaluate the
impact of labels, labeling, and advertising on consumer behavior in
order to reduce the risk of harm and promote understanding of the
impact of the product on health. In connection with its mandate to
promote health and reduce the risk of harm, the Food and Drug
Administration routinely makes decisions about whether and how
products may be marketed in the United States.
(45) The Federal Trade Commission was created to protect
consumers from unfair or deceptive acts or practices, and to
regulate unfair methods of competition. Its focus is on those
marketplace practices that deceive or mislead consumers, and those
that give some competitors an unfair advantage. Its mission is to
regulate activities in the marketplace. Neither the Federal Trade
Commission nor any other Federal agency except the Food and Drug
Administration possesses the scientific expertise needed to
implement effectively all provisions of the Family Smoking
Prevention and Tobacco Control Act.
(46) If manufacturers state or imply in communications directed
to consumers through the media or through a label, labeling, or
advertising, that a tobacco product is approved or inspected by the
Food and Drug Administration or complies with Food and Drug
Administration standards, consumers are likely to be confused and
misled. Depending upon the particular language used and its
context, such a statement could result in consumers being misled
into believing that the product is endorsed by the Food and Drug
Administration for use or in consumers being misled about the
harmfulness of the product because of such regulation, inspection,
approval, or compliance.
(47) In August 2006 a United States district court judge found
that the major United States cigarette companies continue to target
and market to youth. USA v. Philip Morris, USA, Inc., et al. (Civil
Action No. 99-2496 (GK), August 17, 2006).
(48) In August 2006 a United States district court judge found
that the major United States cigarette companies dramatically
increased their advertising and promotional spending in ways that
encourage youth to start smoking subsequent to the signing of the
Master Settlement Agreement in 1998. USA v. Philip Morris, USA,
Inc., et al. (Civil Action No. 99-2496 (GK), August 17, 2006).
(49) In August 2006 a United States district court judge found
that the major United States cigarette companies have designed
their cigarettes to precisely control nicotine delivery levels and
provide doses of nicotine sufficient to create and sustain
addiction while also concealing much of their nicotine-related
research. USA v. Philip Morris, USA, Inc., et al. (Civil Action No.
99-2496 (GK), August 17, 2006).

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TITLE III

-PREVENTION OF ILLICIT TRADE IN TOBACCO PRODUCTS

The purposes of this division are--
(1) to provide authority to the Food and Drug Administration to
regulate tobacco products under the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301 et seq.), by recognizing it as the
primary Federal regulatory authority with respect to the
manufacture, marketing, and distribution of tobacco products as
provided for in this division;
(2) to ensure that the Food and Drug Administration has the
authority to address issues of particular concern to public health
officials, especially the use of tobacco by young people and
dependence on tobacco;
(3) to authorize the Food and Drug Administration to set
national standards controlling the manufacture of tobacco products
and the identity, public disclosure, and amount of ingredients used
in such products;
(4) to provide new and flexible enforcement authority to ensure
that there is effective oversight of the tobacco industry's efforts
to develop, introduce, and promote less harmful tobacco products;
(5) to vest the Food and Drug Administration with the authority
to regulate the levels of tar, nicotine, and other harmful
components of tobacco products;
(6) in order to ensure that consumers are better informed, to
require tobacco product manufacturers to disclose research which
has not previously been made available, as well as research
generated in the future, relating to the health and dependency
effects or safety of tobacco products;
(7) to continue to permit the sale of tobacco products to
adults in conjunction with measures to ensure that they are not
sold or accessible to underage purchasers;
(8) to impose appropriate regulatory controls on the tobacco
industry;
(9) to promote cessation to reduce disease risk and the social
costs associated with tobacco-related diseases; and
(10) to strengthen legislation against illicit trade in tobacco
products.

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(a) Intended Effect.--Nothing in this division (or an amendment
made by this division) shall be construed to--
(1) establish a precedent with regard to any other industry,
situation, circumstance, or legal action; or
(2) affect any action pending in Federal, State, or tribal
court, or any agreement, consent decree, or contract of any kind.
(b) Agricultural Activities.--The provisions of this division (or
an amendment made by this division) which authorize the Secretary to
take certain actions with regard to tobacco and tobacco products shall
not be construed to affect any authority of the Secretary of
Agriculture under existing law regarding the growing, cultivation, or
curing of raw tobacco.
(c) Revenue Activities.--The provisions of this division (or an
amendment made by this division) which authorize the Secretary to take
certain actions with regard to tobacco products shall not be construed
to affect any authority of the Secretary of the Treasury under chapter
52 of the Internal Revenue Code of 1986.

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If any provision of this division, of the amendments made by this
division, or of the regulations promulgated under this division (or
under such amendments), or the application of any such provision to any
person or circumstance is held to be invalid, the remainder of this
division, such amendments and such regulations, and the application of
such provisions to any other person or circumstance shall not be
affected and shall continue to be enforced to the fullest extent
possible.

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(a) Delayed Commencement of Dates for Secretarial Action.--
(1) In general.--Except as provided in subsection (c), with
respect to any time periods specified in this division (or in an
amendment made by this division) that begin on the date of
enactment of this Act, within which the Secretary of Health and
Human Services is required to carry out and complete specified
activities, the calculation of such time periods shall commence on
the date described in subsection (b).
(2) Limitation.--Subsection (a) shall only apply with respect
to obligations of the Secretary of Health and Human Services that
must be completed within a specified time period and shall not
apply to the obligations of any other person or to any other
provision of this division (including the amendments made by this
division) that do not create such obligations of the Secretary and
are not contingent on actions by the Secretary.
(b) Date Described.--The date described in this subsection is the
first day of the first fiscal quarter following the initial 2
consecutive fiscal quarters of fiscal year 2010 for which the Secretary
of Health and Human Services has collected fees under section 919 of
the Federal Food, Drug, and Cosmetic Act (as added by section 101).
(c) Exception.--Subsection (a) shall not apply to any time period
(or date) contained--
(1) in section 102, except that the reference to ``180 days''
in subsection (a)(1) of such section shall be deemed to be ``270
days''; and
(2) in sections 201 through 204 (or the amendments made by any
such sections).
(d) Adjustment.--The Secretary of Health and Human Services may
extend or reduce the duration of one or more time periods to which
subsection (a) applies if the Secretary determines appropriate, except
that no such period shall be extended for more than 90 days.

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(a) Cigarettes and Smokeless Tobacco.--
(1) In general.--On the first day of publication of the Federal
Register that is 180 days or more after the date of enactment of
this Act, the Secretary of Health and Human Services shall publish
in the Federal Register a final rule regarding cigarettes and
smokeless tobacco, which--
(A) is deemed to be issued under chapter 9 of the Federal
Food, Drug, and Cosmetic Act, as added by section 101 of this
division; and
(B) shall be deemed to be in compliance with all applicable
provisions of chapter 5 of title 5, United States Code, and all
other provisions of law relating to rulemaking procedures.
(2) Contents of rule.--Except as provided in this subsection,
the final rule published under paragraph (1), shall be identical in
its provisions to part 897 of the regulations promulgated by the
Secretary of Health and Human Services in the August 28, 1996,
issue of the Federal Register (61 Fed. Reg. 44615-44618). Such rule
shall--
(A) provide for the designation of jurisdictional authority
that is in accordance with this subsection in accordance with
this division and the amendments made by this division;
(B) strike Subpart C--Labels and section 897.32(c);
(C) strike paragraphs (a), (b), and (i) of section 897.3
and insert definitions of the terms ``cigarette'', ``cigarette
tobacco'', and ``smokeless tobacco'' as defined in section 900
of the Federal Food, Drug, and Cosmetic Act;
(D) insert ``or roll-your-own paper'' in section 897.34(a)
after ``other than cigarettes or smokeless tobacco'';
(E) include such modifications to section 897.30(b), if
any, that the Secretary determines are appropriate in light of
governing First Amendment case law, including the decision of
the Supreme Court of the United States in Lorillard Tobacco Co.
v. Reilly (533 U.S. 525 (2001));
(F) become effective on the date that is 1 year after the
date of enactment of this Act; and
(G) amend paragraph (d) of section 897.16 to read as
follows:
``(d)(1) Except as provided in subparagraph (2), no manufacturer,
distributor, or retailer may distribute or cause to be distributed any
free samples of cigarettes, smokeless tobacco, or other tobacco
products (as such term is defined in section 201 of the Federal Food,
Drug, and Cosmetic Act).
``(2)(A) Subparagraph (1) does not prohibit a manufacturer,
distributor, or retailer from distributing or causing to be distributed
free samples of smokeless tobacco in a qualified adult-only facility.
``(B) This subparagraph does not affect the authority of a State or
local government to prohibit or otherwise restrict the distribution of
free samples of smokeless tobacco.
``(C) For purposes of this paragraph, the term `qualified adult-
only facility' means a facility or restricted area that--
``(i) requires each person present to provide to a law
enforcement officer (whether on or off duty) or to a security guard
licensed by a governmental entity government-issued identification
showing a photograph and at least the minimum age established by
applicable law for the purchase of smokeless tobacco;
``(ii) does not sell, serve, or distribute alcohol;
``(iii) is not located adjacent to or immediately across from
(in any direction) a space that is used primarily for youth-
oriented marketing, promotional, or other activities;
``(iv) is a temporary structure constructed, designated, and
operated as a distinct enclosed area for the purpose of
distributing free samples of smokeless tobacco in accordance with
this subparagraph;
``(v) is enclosed by a barrier that--
``(I) is constructed of, or covered with, an opaque
material (except for entrances and exits);
``(II) extends from no more than 12 inches above the ground
or floor (which area at the bottom of the barrier must be
covered with material that restricts visibility but may allow
airflow) to at least 8 feet above the ground or floor (or to
the ceiling); and
``(III) prevents persons outside the qualified adult-only
facility from seeing into the qualified adult-only facility,
unless they make unreasonable efforts to do so; and
``(vi) does not display on its exterior--
``(I) any tobacco product advertising;
``(II) a brand name other than in conjunction with words
for an area or enclosure to identify an adult-only facility; or
``(III) any combination of words that would imply to a
reasonable observer that the manufacturer, distributor, or
retailer has a sponsorship that would violate section
897.34(c).
``(D) Distribution of samples of smokeless tobacco under this
subparagraph permitted to be taken out of the qualified adult-only
facility shall be limited to 1 package per adult consumer containing no
more than 0.53 ounces (15 grams) of smokeless tobacco. If such package
of smokeless tobacco contains individual portions of smokeless tobacco,
the individual portions of smokeless tobacco shall not exceed 8
individual portions and the collective weight of such individual
portions shall not exceed 0.53 ounces (15 grams). Any manufacturer,
distributor, or retailer who distributes or causes to be distributed
free samples also shall take reasonable steps to ensure that the above
amounts are limited to one such package per adult consumer per day.
``(3) Notwithstanding subparagraph (2), no manufacturer,
distributor, or retailer may distribute or cause to be distributed any
free samples of smokeless tobacco--
``(A) to a sports team or entertainment group; or
``(B) at any football, basketball, baseball, soccer, or hockey
event or any other sporting or entertainment event determined by
the Secretary to be covered by this subparagraph.
``(4) The Secretary shall implement a program to ensure compliance
with this paragraph and submit a report to the Congress on such
compliance not later than 18 months after the date of enactment of the
Family Smoking Prevention and Tobacco Control Act.
``(5) Nothing in this paragraph shall be construed to authorize any
person to distribute or cause to be distributed any sample of a tobacco
product to any individual who has not attained the minimum age
established by applicable law for the purchase of such product.''.
(3) Amendments to rule.--Prior to making amendments to the rule
published under paragraph (1), the Secretary shall promulgate a
proposed rule in accordance with chapter 5 of title 5, United
States Code.
(4) Rule of construction.--Except as provided in paragraph (3),
nothing in this section shall be construed to limit the authority
of the Secretary to amend, in accordance with chapter 5 of title 5,
United States Code, the regulation promulgated pursuant to this
section, including the provisions of such regulation relating to
distribution of free samples.
(5) Enforcement of retail sale provisions.--The Secretary of
Health and Human Services shall ensure that the provisions of this
division, the amendments made by this division, and the
implementing regulations (including such provisions, amendments,
and regulations relating to the retail sale of tobacco products)
are enforced with respect to the United States and Indian tribes.
(6) Qualified adult-only facility.--A qualified adult-only
facility (as such term is defined in section 897.16(d) of the final
rule published under paragraph (1)) that is also a retailer and
that commits a violation as a retailer shall not be subject to the
limitations in section 103(q) and shall be subject to penalties
applicable to a qualified adult-only facility.
(7) Congressional review provisions.--Section 801 of title 5,
United States Code, shall not apply to the final rule published
under paragraph (1).
(b) Limitation on Advisory Opinions.--As of the date of enactment
of this Act, the following documents issued by the Food and Drug
Administration shall not constitute advisory opinions under section
10.85(d)(1) of title 21, Code of Federal Regulations, except as they
apply to tobacco products, and shall not be cited by the Secretary of
Health and Human Services or the Food and Drug Administration as
binding precedent:
(1) The preamble to the proposed rule in the document titled
``Regulations Restricting the Sale and Distribution of Cigarettes
and Smokeless Tobacco Products to Protect Children and
Adolescents'' (60 Fed. Reg. 41314-41372 (August 11, 1995)).
(2) The document titled ``Nicotine in Cigarettes and Smokeless
Tobacco Products is a Drug and These Products Are Nicotine Delivery
Devices Under the Federal Food, Drug, and Cosmetic Act'' (60 Fed.
Reg. 41453-41787 (August 11, 1995)).
(3) The preamble to the final rule in the document titled
``Regulations Restricting the Sale and Distribution of Cigarettes
and Smokeless Tobacco to Protect Children and Adolescents'' (61
Fed. Reg. 44396-44615 (August 28, 1996)).
(4) The document titled ``Nicotine in Cigarettes and Smokeless
Tobacco is a Drug and These Products are Nicotine Delivery Devices
Under the Federal Food, Drug, and Cosmetic Act; Jurisdictional
Determination'' (61 Fed. Reg. 44619-45318 (August 28, 1996)).

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PRODUCTS.
The Secretary of Health and Human Services shall--
(1) convene an expert panel to conduct a study on the public
health implications of raising the minimum age to purchase tobacco
products; and
(2) not later than 5 years after the date of enactment of this
Act, submit a report to the Congress on the results of such study.

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RESTRICTIONS.
(a) Action Plan.--
(1) Development.--Not later than 6 months after the date of
enactment of this Act, the Secretary of Health and Human Services
(in this section referred to as the ``Secretary'') shall develop
and publish an action plan to enforce restrictions adopted pursuant
to section 906 of the Federal Food, Drug, and Cosmetic Act, as
added by section 101(b) of this division, or pursuant to section
102(a) of this division, on promotion and advertising of menthol
and other cigarettes to youth.
(2) Consultation.--The action plan required by paragraph (1)
shall be developed in consultation with public health organizations
and other stakeholders with demonstrated expertise and experience
in serving minority communities.
(3) Priority.--The action plan required by paragraph (1) shall
include provisions designed to ensure enforcement of the
restrictions described in paragraph (1) in minority communities.
(b) State and Local Activities.--
(1) Information on authority.--Not later than 3 months after
the date of enactment of this Act, the Secretary shall inform
State, local, and tribal governments of the authority provided to
such entities under section 5(c) of the Federal Cigarette Labeling
and Advertising Act, as added by section 203 of this division, or
preserved by such entities under section 916 of the Federal Food,
Drug, and Cosmetic Act, as added by section 101(b) of this
division.
(2) Community assistance.--At the request of communities
seeking assistance to prevent underage tobacco use, the Secretary
shall provide such assistance, including assistance with strategies
to address the prevention of underage tobacco use in communities
with a disproportionate use of menthol cigarettes by minors.

0287f6f119d1339a68b0646a6fe0903121381d83383f770cc85eadf1475dc3a9

(a) FDA Report.--Not later than 3 years after the date of enactment
of this Act, and not less than every 2 years thereafter, the Secretary
of Health and Human Services shall submit to the Committee on Health,
Education, Labor, and Pensions of the Senate and the Committee on
Energy and Commerce of the House of Representatives, a report
concerning--
(1) the progress of the Food and Drug Administration in
implementing this division, including major accomplishments,
objective measurements of progress, and the identification of any
areas that have not been fully implemented;
(2) impediments identified by the Food and Drug Administration
to progress in implementing this division and to meeting statutory
timeframes;
(3) data on the number of new product applications received
under section 910 of the Federal Food, Drug, and Cosmetic Act and
modified risk product applications received under section 911 of
such Act, and the number of applications acted on under each
category; and
(4) data on the number of full time equivalents engaged in
implementing this division.
(b) GAO Report.--Not later than 5 years after the date of enactment
of this Act, the Comptroller General of the United States shall conduct
a study of, and submit to the Committees described in subsection (a) a
report concerning--
(1) the adequacy of the authority and resources provided to the
Secretary of Health and Human Services for this division to carry
out its goals and purposes; and
(2) any recommendations for strengthening that authority to
more effectively protect the public health with respect to the
manufacture, marketing, and distribution of tobacco products.
(c) Public Availability.--The Secretary of Health and Human
Services and the Comptroller General of the United States,
respectively, shall make the reports required under subsection (a) and
(b) available to the public, including by posting such reports on the
respective Internet websites of the Food and Drug Administration and
the Government Accountability Office.
DISCLOSURE

7ee999c40ada1873fe4d19c47644bfbddd3b9c9aa4641ccb30acd31ba46083c5

(a) Amendment.--Section 4 of the Federal Cigarette Labeling and
Advertising Act (15 U.S.C. 1333) is amended to read as follows:
``SEC. 4. LABELING.
``(a) Label Requirements.--
``(1) In general.--It shall be unlawful for any person to
manufacture, package, sell, offer to sell, distribute, or import
for sale or distribution within the United States any cigarettes
the package of which fails to bear, in accordance with the
requirements of this section, one of the following labels:
``WARNING: Cigarettes are addictive.
``WARNING: Tobacco smoke can harm your children.
``WARNING: Cigarettes cause fatal lung disease.
``WARNING: Cigarettes cause cancer.
``WARNING: Cigarettes cause strokes and heart disease.
``WARNING: Smoking during pregnancy can harm your baby.
``WARNING: Smoking can kill you.
``WARNING: Tobacco smoke causes fatal lung disease in
nonsmokers.
``WARNING: Quitting smoking now greatly reduces serious
risks to your health.
``(2) Placement; typography; etc.--Each label statement
required by paragraph (1) shall be located in the upper portion of
the front and rear panels of the package, directly on the package
underneath the cellophane or other clear wrapping. Each label
statement shall comprise the top 50 percent of the front and rear
panels of the package. The word `WARNING' shall appear in capital
letters and all text shall be in conspicuous and legible 17-point
type, unless the text of the label statement would occupy more than
70 percent of such area, in which case the text may be in a smaller
conspicuous and legible type size, provided that at least 60
percent of such area is occupied by required text. The text shall
be black on a white background, or white on a black background, in
a manner that contrasts, by typography, layout, or color, with all
other printed material on the package, in an alternating fashion
under the plan submitted under subsection (c).
``(3) Does not apply to foreign distribution.--The provisions
of this subsection do not apply to a tobacco product manufacturer
or distributor of cigarettes which does not manufacture, package,
or import cigarettes for sale or distribution within the United
States.
``(4) Applicability to retailers.--A retailer of cigarettes
shall not be in violation of this subsection for packaging that--
``(A) contains a warning label;
``(B) is supplied to the retailer by a license- or permit-
holding tobacco product manufacturer, importer, or distributor;
and
``(C) is not altered by the retailer in a way that is
material to the requirements of this subsection.
``(b) Advertising Requirements.--
``(1) In general.--It shall be unlawful for any tobacco product
manufacturer, importer, distributor, or retailer of cigarettes to
advertise or cause to be advertised within the United States any
cigarette unless its advertising bears, in accordance with the
requirements of this section, one of the labels specified in
subsection (a).
``(2) Typography, etc.--Each label statement required by
subsection (a) in cigarette advertising shall comply with the
standards set forth in this paragraph. For press and poster
advertisements, each such statement and (where applicable) any
required statement relating to tar, nicotine, or other constituent
(including a smoke constituent) yield shall comprise at least 20
percent of the area of the advertisement and shall appear in a
conspicuous and prominent format and location at the top of each
advertisement within the trim area. The Secretary may revise the
required type sizes in such area in such manner as the Secretary
determines appropriate. The word `WARNING' shall appear in capital
letters, and each label statement shall appear in conspicuous and
legible type. The text of the label statement shall be black if the
background is white and white if the background is black, under the
plan submitted under subsection (c). The label statements shall be
enclosed by a rectangular border that is the same color as the
letters of the statements and that is the width of the first
downstroke of the capital `W' of the word `WARNING' in the label
statements. The text of such label statements shall be in a
typeface pro rata to the following requirements: 45-point type for
a whole-page broadsheet newspaper advertisement; 39-point type for
a half-page broadsheet newspaper advertisement; 39-point type for a
whole-page tabloid newspaper advertisement; 27-point type for a
half-page tabloid newspaper advertisement; 31.5-point type for a
double page spread magazine or whole-page magazine advertisement;
22.5-point type for a 28 centimeter by 3 column advertisement; and
15-point type for a 20 centimeter by 2 column advertisement. The
label statements shall be in English, except that--
``(A) in the case of an advertisement that appears in a
newspaper, magazine, periodical, or other publication that is
not in English, the statements shall appear in the predominant
language of the publication; and
``(B) in the case of any other advertisement that is not in
English, the statements shall appear in the same language as
that principally used in the advertisement.
``(3) Matchbooks.--Notwithstanding paragraph (2), for
matchbooks (defined as containing not more than 20 matches)
customarily given away with the purchase of tobacco products, each
label statement required by subsection (a) may be printed on the
inside cover of the matchbook.
``(4) Adjustment by secretary.--The Secretary may, through a
rulemaking under section 553 of title 5, United States Code, adjust
the format and type sizes for the label statements required by this
section; the text, format, and type sizes of any required tar,
nicotine yield, or other constituent (including smoke constituent)
disclosures; or the text, format, and type sizes for any other
disclosures required under the Federal Food, Drug, and Cosmetic
Act. The text of any such label statements or disclosures shall be
required to appear only within the 20 percent area of cigarette
advertisements provided by paragraph (2). The Secretary shall
promulgate regulations which provide for adjustments in the format
and type sizes of any text required to appear in such area to
ensure that the total text required to appear by law will fit
within such area.
``(c) Marketing Requirements.--
``(1) Random display.--The label statements specified in
subsection (a)(1) shall be randomly displayed in each 12-month
period, in as equal a number of times as is possible on each brand
of the product and be randomly distributed in all areas of the
United States in which the product is marketed in accordance with a
plan submitted by the tobacco product manufacturer, importer,
distributor, or retailer and approved by the Secretary.
``(2) Rotation.--The label statements specified in subsection
(a)(1) shall be rotated quarterly in alternating sequence in
advertisements for each brand of cigarettes in accordance with a
plan submitted by the tobacco product manufacturer, importer,
distributor, or retailer to, and approved by, the Secretary.
``(3) Review.--The Secretary shall review each plan submitted
under paragraph (2) and approve it if the plan--
``(A) will provide for the equal distribution and display
on packaging and the rotation required in advertising under
this subsection; and
``(B) assures that all of the labels required under this
section will be displayed by the tobacco product manufacturer,
importer, distributor, or retailer at the same time.
``(4) Applicability to retailers.--This subsection and
subsection (b) apply to a retailer only if that retailer is
responsible for or directs the label statements required under this
section except that this paragraph shall not relieve a retailer of
liability if the retailer displays, in a location open to the
public, an advertisement that does not contain a warning label or
has been altered by the retailer in a way that is material to the
requirements of this subsection and subsection (b).
``(d) Graphic Label Statements.--Not later than 24 months after the
date of enactment of the Family Smoking Prevention and Tobacco Control
Act, the Secretary shall issue regulations that require color graphics
depicting the negative health consequences of smoking to accompany the
label statements specified in subsection (a)(1). The Secretary may
adjust the type size, text and format of the label statements specified
in subsections (a)(2) and (b)(2) as the Secretary determines
appropriate so that both the graphics and the accompanying label
statements are clear, conspicuous, legible and appear within the
specified area.''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect 15 months after the issuance of the regulations required by
subsection (a). Such effective date shall be with respect to the date
of manufacture, provided that, in any case, beginning 30 days after
such effective date, a manufacturer shall not introduce into the
domestic commerce of the United States any product, irrespective of the
date of manufacture, that is not in conformance with section 4 of the
Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1333), as
amended by subsection (a).

e4abf330279821f073ea42314df2beb05ff5f4cf8441dab4d37d1e815dc14434

(a) Preemption.--Section 5(a) of the Federal Cigarette Labeling and
Advertising Act (15 U.S.C. 1334(a)) is amended by striking ``No'' and
inserting ``Except to the extent the Secretary requires additional or
different statements on any cigarette package by a regulation, by an
order, by a standard, by an authorization to market a product, or by a
condition of marketing a product, pursuant to the Family Smoking
Prevention and Tobacco Control Act (and the amendments made by that
Act), or as required under section 903(a)(2) or section 920(a) of the
Federal Food, Drug, and Cosmetic Act, no''.
(b) Change in Required Statements.--Section 4 of the Federal
Cigarette Labeling and Advertising Act (15 U.S.C. 1333), as amended by
section 201, is further amended by adding at the end the following:
``(d) Change in Required Statements.--The Secretary through a
rulemaking conducted under section 553 of title 5, United States Code,
may adjust the format, type size, color graphics, and text of any of
the label requirements, or establish the format, type size, and text of
any other disclosures required under the Federal Food, Drug, and
Cosmetic Act, if the Secretary finds that such a change would promote
greater public understanding of the risks associated with the use of
tobacco products.''.

4ce6829dcc26bfc6aa56040dd2abc4ae5abda2c8856331d7e8c63e93924cb771

Section 5 of the Federal Cigarette Labeling and Advertising Act (15
U.S.C. 1334) is amended by adding at the end the following:
``(c) Exception.--Notwithstanding subsection (b), a State or
locality may enact statutes and promulgate regulations, based on
smoking and health, that take effect after the effective date of the
Family Smoking Prevention and Tobacco Control Act, imposing specific
bans or restrictions on the time, place, and manner, but not content,
of the advertising or promotion of any cigarettes.''.

f9435e5c7d3e03939ec7c1c59afc12a54b1cd9e7c0c3d219f52718243c0c520f

(a) Amendment.--Section 3 of the Comprehensive Smokeless Tobacco
Health Education Act of 1986 (15 U.S.C. 4402) is amended to read as
follows:
``SEC. 3. SMOKELESS TOBACCO WARNING.
``(a) General Rule.--
``(1) It shall be unlawful for any person to manufacture,
package, sell, offer to sell, distribute, or import for sale or
distribution within the United States any smokeless tobacco product
unless the product package bears, in accordance with the
requirements of this Act, one of the following labels:
``WARNING: This product can cause mouth cancer.
``WARNING: This product can cause gum disease and tooth
loss.
``WARNING: This product is not a safe alternative to
cigarettes.
``WARNING: Smokeless tobacco is addictive.
``(2) Each label statement required by paragraph (1) shall be--
``(A) located on the 2 principal display panels of the
package, and each label statement shall comprise at least 30
percent of each such display panel; and
``(B) in 17-point conspicuous and legible type and in black
text on a white background, or white text on a black
background, in a manner that contrasts by typography, layout,
or color, with all other printed material on the package, in an
alternating fashion under the plan submitted under subsection
(b)(3), except that if the text of a label statement would
occupy more than 70 percent of the area specified by
subparagraph (A), such text may appear in a smaller type size,
so long as at least 60 percent of such warning area is occupied
by the label statement.
``(3) The label statements required by paragraph (1) shall be
introduced by each tobacco product manufacturer, packager,
importer, distributor, or retailer of smokeless tobacco products
concurrently into the distribution chain of such products.
``(4) The provisions of this subsection do not apply to a
tobacco product manufacturer or distributor of any smokeless
tobacco product that does not manufacture, package, or import
smokeless tobacco products for sale or distribution within the
United States.
``(5) A retailer of smokeless tobacco products shall not be in
violation of this subsection for packaging that--
``(A) contains a warning label;
``(B) is supplied to the retailer by a license- or permit-
holding tobacco product manufacturer, importer, or distributor;
and
``(C) is not altered by the retailer in a way that is
material to the requirements of this subsection.
``(b) Required Labels.--
``(1) It shall be unlawful for any tobacco product
manufacturer, packager, importer, distributor, or retailer of
smokeless tobacco products to advertise or cause to be advertised
within the United States any smokeless tobacco product unless its
advertising bears, in accordance with the requirements of this
section, one of the labels specified in subsection (a).
``(2)(A) Each label statement required by subsection (a) in
smokeless tobacco advertising shall comply with the standards set
forth in this paragraph.
``(B) For press and poster advertisements, each such statement
and (where applicable) any required statement relating to tar,
nicotine, or other constituent yield shall comprise at least 20
percent of the area of the advertisement.
``(C) The word `WARNING' shall appear in capital letters, and
each label statement shall appear in conspicuous and legible type.
``(D) The text of the label statement shall be black on a white
background, or white on a black background, in an alternating
fashion under the plan submitted under paragraph (3).
``(E) The label statements shall be enclosed by a rectangular
border that is the same color as the letters of the statements and
that is the width of the first downstroke of the capital `W' of the
word `WARNING' in the label statements.
``(F) The text of such label statements shall be in a typeface
pro rata to the following requirements: 45-point type for a whole-
page broadsheet newspaper advertisement; 39-point type for a half-
page broadsheet newspaper advertisement; 39-point type for a whole-
page tabloid newspaper advertisement; 27-point type for a half-page
tabloid newspaper advertisement; 31.5-point type for a double page
spread magazine or whole-page magazine advertisement; 22.5-point
type for a 28 centimeter by 3 column advertisement; and 15-point
type for a 20 centimeter by 2 column advertisement.
``(G) The label statements shall be in English, except that--
``(i) in the case of an advertisement that appears in a
newspaper, magazine, periodical, or other publication that is
not in English, the statements shall appear in the predominant
language of the publication; and
``(ii) in the case of any other advertisement that is not
in English, the statements shall appear in the same language as
that principally used in the advertisement.
``(3)(A) The label statements specified in subsection (a)(1)
shall be randomly displayed in each 12-month period, in as equal a
number of times as is possible on each brand of the product and be
randomly distributed in all areas of the United States in which the
product is marketed in accordance with a plan submitted by the
tobacco product manufacturer, importer, distributor, or retailer
and approved by the Secretary.
``(B) The label statements specified in subsection (a)(1) shall
be rotated quarterly in alternating sequence in advertisements for
each brand of smokeless tobacco product in accordance with a plan
submitted by the tobacco product manufacturer, importer,
distributor, or retailer to, and approved by, the Secretary.
``(C) The Secretary shall review each plan submitted under
subparagraphs (A) and (B) and approve it if the plan--
``(i) will provide for the equal distribution and display
on packaging and the rotation required in advertising under
this subsection; and
``(ii) assures that all of the labels required under this
section will be displayed by the tobacco product manufacturer,
importer, distributor, or retailer at the same time.
``(D) This paragraph applies to a retailer only if that
retailer is responsible for or directs the label statements under
this section, unless the retailer displays, in a location open to
the public, an advertisement that does not contain a warning label
or has been altered by the retailer in a way that is material to
the requirements of this subsection.
``(4) The Secretary may, through a rulemaking under section 553
of title 5, United States Code, adjust the format and type sizes
for the label statements required by this section; the text,
format, and type sizes of any required tar, nicotine yield, or
other constituent disclosures; or the text, format, and type sizes
for any other disclosures required under the Federal Food, Drug,
and Cosmetic Act. The text of any such label statements or
disclosures shall be required to appear only within the 20 percent
area of advertisements provided by paragraph (2). The Secretary
shall promulgate regulations which provide for adjustments in the
format and type sizes of any text required to appear in such area
to ensure that the total text required to appear by law will fit
within such area.
``(c) Television and Radio Advertising.--It is unlawful to
advertise smokeless tobacco on any medium of electronic communications
subject to the jurisdiction of the Federal Communications
Commission.''.
(b) Effective Date.--The amendment made by subsection (a) shall
take effect 12 months after the date of enactment of this Act. Such
effective date shall be with respect to the date of manufacture,
provided that, in any case, beginning 30 days after such effective
date, a manufacturer shall not introduce into the domestic commerce of
the United States any product, irrespective of the date of manufacture,
that is not in conformance with section 3 of the Comprehensive
Smokeless Tobacco Health Education Act of 1986 (15 U.S.C. 4402), as
amended by subsection (a).

b5c8681a2a893d4fb274f8857e0a6d679794420d741b2271f79c8b3b88b62ec8

LABEL STATEMENTS.
(a) In General.--Section 3 of the Comprehensive Smokeless Tobacco
Health Education Act of 1986 (15 U.S.C. 4402), as amended by section
204, is further amended by adding at the end the following:
``(d) Authority To Revise Warning Label Statements.--The Secretary
may, by a rulemaking conducted under section 553 of title 5, United
States Code, adjust the format, type size, and text of any of the label
requirements, require color graphics to accompany the text, increase
the required label area from 30 percent up to 50 percent of the front
and rear panels of the package, or establish the format, type size, and
text of any other disclosures required under the Federal Food, Drug,
and Cosmetic Act, if the Secretary finds that such a change would
promote greater public understanding of the risks associated with the
use of smokeless tobacco products.''.
(b) Preemption.--Section 7(a) of the Comprehensive Smokeless
Tobacco Health Education Act of 1986 (15 U.S.C. 4406(a)) is amended by
striking ``No'' and inserting ``Except as provided in the Family
Smoking Prevention and Tobacco Control Act (and the amendments made by
that Act), no''.

d567a95fde45c8a4d8a4f1f1690b796edd33ccb7ccbea28851b882eaa0b30f18

THE PUBLIC.
Section 4 of the Federal Cigarette Labeling and Advertising Act (15
U.S.C. 1333), as amended by sections 201 and 202, is further amended by
adding at the end the following:
``(e) Tar, Nicotine, and Other Smoke Constituent Disclosure.--
``(1) In general.--The Secretary shall, by a rulemaking
conducted under section 553 of title 5, United States Code,
determine (in the Secretary's sole discretion) whether cigarette
and other tobacco product manufacturers shall be required to
include in the area of each cigarette advertisement specified by
subsection (b) of this section, or on the package label, or both,
the tar and nicotine yields of the advertised or packaged brand.
Any such disclosure shall be in accordance with the methodology
established under such regulations, shall conform to the type size
requirements of subsection (b) of this section, and shall appear
within the area specified in subsection (b) of this section.
``(2) Resolution of differences.--Any differences between the
requirements established by the Secretary under paragraph (1) and
tar and nicotine yield reporting requirements established by the
Federal Trade Commission shall be resolved by a memorandum of
understanding between the Secretary and the Federal Trade
Commission.
``(3) Cigarette and other tobacco product constituents.--In
addition to the disclosures required by paragraph (1), the
Secretary may, under a rulemaking conducted under section 553 of
title 5, United States Code, prescribe disclosure requirements
regarding the level of any cigarette or other tobacco product
constituent including any smoke constituent. Any such disclosure
may be required if the Secretary determines that disclosure would
be of benefit to the public health, or otherwise would increase
consumer awareness of the health consequences of the use of tobacco
products, except that no such prescribed disclosure shall be
required on the face of any cigarette package or advertisement.
Nothing in this section shall prohibit the Secretary from requiring
such prescribed disclosure through a cigarette or other tobacco
product package or advertisement insert, or by any other means
under the Federal Food, Drug, and Cosmetic Act.
``(4) Retailers.--This subsection applies to a retailer only if
that retailer is responsible for or directs the label statements
required under this section.''.

a094a82dddd11a25cc13fdea993d1b884e53856d7d18abae7ae11e22e48816da

Chapter IX of the Federal Food, Drug, and Cosmetic Act, as added by
section 101, is further amended by adding at the end the following:
``SEC. 920. LABELING, RECORDKEEPING, RECORDS INSPECTION.
``(a) Origin Labeling.--
``(1) Requirement.--Beginning 1 year after the date of
enactment of the Family Smoking Prevention and Tobacco Control Act,
the label, packaging, and shipping containers of tobacco products
other than cigarettes for introduction or delivery for introduction
into interstate commerce in the United States shall bear the
statement `sale only allowed in the United States'. Beginning 15
months after the issuance of the regulations required by section
4(d) of the Federal Cigarette Labeling and Advertising Act (15
U.S.C. 1333), as amended by section 201 of Family Smoking
Prevention and Tobacco Control Act, the label, packaging, and
shipping containers of cigarettes for introduction or delivery for
introduction into interstate commerce in the United States shall
bear the statement `Sale only allowed in the United States'.
``(2) Effective date.--The effective date specified in
paragraph (1) shall be with respect to the date of manufacture,
provided that, in any case, beginning 30 days after such effective
date, a manufacturer shall not introduce into the domestic commerce
of the United States any product, irrespective of the date of
manufacture, that is not in conformance with such paragraph.
``(b) Regulations Concerning Recordkeeping for Tracking and
Tracing.--
``(1) In general.--The Secretary shall promulgate regulations
regarding the establishment and maintenance of records by any
person who manufactures, processes, transports, distributes,
receives, packages, holds, exports, or imports tobacco products.
``(2) Inspection.--In promulgating the regulations described in
paragraph (1), the Secretary shall consider which records are
needed for inspection to monitor the movement of tobacco products
from the point of manufacture through distribution to retail
outlets to assist in investigating potential illicit trade,
smuggling, or counterfeiting of tobacco products.
``(3) Codes.--The Secretary may require codes on the labels of
tobacco products or other designs or devices for the purpose of
tracking or tracing the tobacco product through the distribution
system.
``(4) Size of business.--The Secretary shall take into account
the size of a business in promulgating regulations under this
section.
``(5) Recordkeeping by retailers.--The Secretary shall not
require any retailer to maintain records relating to individual
purchasers of tobacco products for personal consumption.
``(c) Records Inspection.--If the Secretary has a reasonable belief
that a tobacco product is part of an illicit trade or smuggling or is a
counterfeit product, each person who manufactures, processes,
transports, distributes, receives, holds, packages, exports, or imports
tobacco products shall, at the request of an officer or employee duly
designated by the Secretary, permit such officer or employee, at
reasonable times and within reasonable limits and in a reasonable
manner, upon the presentation of appropriate credentials and a written
notice to such person, to have access to and copy all records
(including financial records) relating to such article that are needed
to assist the Secretary in investigating potential illicit trade,
smuggling, or counterfeiting of tobacco products. The Secretary shall
not authorize an officer or employee of the government of any of the
several States to exercise authority under the preceding sentence on
Indian country without the express written consent of the Indian tribe
involved.
``(d) Knowledge of Illegal Transaction.--
``(1) Notification.--If the manufacturer or distributor of a
tobacco product has knowledge which reasonably supports the
conclusion that a tobacco product manufactured or distributed by
such manufacturer or distributor that has left the control of such
person may be or has been--
``(A) imported, exported, distributed, or offered for sale
in interstate commerce by a person without paying duties or
taxes required by law; or
``(B) imported, exported, distributed, or diverted for
possible illicit marketing,
the manufacturer or distributor shall promptly notify the Attorney
General and the Secretary of the Treasury of such knowledge.
``(2) Knowledge defined.--For purposes of this subsection, the
term `knowledge' as applied to a manufacturer or distributor
means--
``(A) the actual knowledge that the manufacturer or
distributor had; or
``(B) the knowledge which a reasonable person would have
had under like circumstances or which would have been obtained
upon the exercise of due care.
``(e) Consultation.--In carrying out this section, the Secretary
shall consult with the Attorney General of the United States and the
Secretary of the Treasury, as appropriate.''.

7c644176dab75bdc87934beda356e88f3a6c86850baa4b0ff57a0797947fc8f9

(a) Study.--The Comptroller General of the United States shall
conduct a study of cross-border trade in tobacco products to--
(1) collect data on cross-border trade in tobacco products,
including illicit trade and trade of counterfeit tobacco products
and make recommendations on the monitoring of such trade;
(2) collect data on cross-border advertising (any advertising
intended to be broadcast, transmitted, or distributed from the
United States to another country) of tobacco products and make
recommendations on how to prevent or eliminate, and what
technologies could help facilitate the elimination of, cross-border
advertising; and
(3) collect data on the health effects (particularly with
respect to individuals under 18 years of age) resulting from cross-
border trade in tobacco products, including the health effects
resulting from--
(A) the illicit trade of tobacco products and the trade of
counterfeit tobacco products; and
(B) the differing tax rates applicable to tobacco products.
(b) Report.--Not later than 18 months after the date of enactment
of this Act, the Comptroller General of the United States shall submit
to the Committee on Health, Education, Labor, and Pensions of the
Senate and the Committee on Energy and Commerce of the House of
Representatives a report on the study described in subsection (a).
(c) Definition.--In this section:
(1) The term ``cross-border trade'' means trade across a border
of the United States, a State or Territory, or Indian country.
(2) The term ``Indian country'' has the meaning given to such
term in section 1151 of title 18, United States Code.
(3) The terms ``State'' and ``Territory'' have the meanings
given to those terms in section 201 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321).

65333b4637f30df922607ba933ef6da4a2665bf9af848893918c0d19c40e5211

(a) Short Title.--This division may be cited as the ``Federal
Retirement Reform Act of 2009''.
(b) Table of Contents.--The table of contents for this division is
as follows:

a441cf975f555a30b5727a1a221f82ab6cfd5b35a8f6ea96e5b82b0c17f269ec

77e5e3e3f491b5c89db86d51ec6f49a49d446cd409e60ad6d0e3d9d6e768d6f4

-PROVISIONS RELATING TO FEDERAL EMPLOYEES RETIREMENT

Thrift Savings Plan.
ARMED FORCES MEMBERS

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allowance for widows and widowers of deceased members of the
Armed Forces affected by required Survivor Benefit Plan
annuity offset for dependency and indemnity compensation.

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-SPECIAL SURVIVOR INDEMNITY ALLOWANCE FOR SURVIVING SPOUSES OF

This title may be cited as the ``Thrift Savings Plan Enhancement
Act of 2009''.

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CONTRIBUTIONS.
(a) In General.--Section 8432(b) of title 5, United States Code, is
amended by striking paragraphs (2) through (4) and inserting the
following:
``(2)(A) The Executive Director shall by regulation provide for an
eligible individual to be automatically enrolled to make contributions
under subsection (a) at the default percentage of basic pay.
``(B) For purposes of this paragraph, the default percentage shall
be equal to 3 percent or such other percentage, not less than 2 percent
nor more than 5 percent, as the Board may prescribe.
``(C) The regulations shall include provisions under which any
individual who would otherwise be automatically enrolled in accordance
with subparagraph (A) may--
``(i) modify the percentage or amount to be contributed
pursuant to automatic enrollment, effective not later than the
first full pay period following receipt of the election by the
appropriate processing entity; or
``(ii) decline automatic enrollment altogether.
``(D)(i) Except as provided in clause (ii), for purposes of this
paragraph, the term `eligible individual' means any individual who,
after any regulations under subparagraph (A) first take effect, is
appointed, transferred, or reappointed to a position in which that
individual becomes eligible to contribute to the Thrift Savings Fund.
``(ii) Members of the uniformed services shall not be eligible
individuals for purposes of this paragraph.
``(E) Sections 8351(a)(1), 8440a(a)(1), 8440b(a)(1), 8440c(a)(1),
8440d(a)(1), and 8440e(a)(1) shall be applied in a manner consistent
with the purposes of this paragraph.''.
(b) Technical Amendment.--Section 8432(b)(1) of title 5, United
States Code, is amended by striking the parenthetical matter in
subparagraph (B).

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(a) In General.--Subchapter III of chapter 84 of title 5, United
States Code, is amended by inserting after section 8432c the following:
``Sec. 8432d. Qualified Roth contribution program
``(a) Definitions.--For purposes of this section--
``(1) the term `qualified Roth contribution program' means a
program described in paragraph (1) of section 402A(b) of the
Internal Revenue Code of 1986 which meets the requirements of
paragraph (2) of such section; and
``(2) the terms `designated Roth contribution' and `elective
deferral' have the meanings given such terms in section 402A of the
Internal Revenue Code of 1986.
``(b) Authority To Establish.--The Executive Director shall by
regulation provide for the inclusion in the Thrift Savings Plan of a
qualified Roth contribution program, under such terms and conditions as
the Board may prescribe.
``(c) Required Provisions.--The regulations under subsection (b)
shall include--
``(1) provisions under which an election to make designated
Roth contributions may be made--
``(A) by any individual who is eligible to make
contributions under section 8351, 8432(a), 8440a, 8440b, 8440c,
8440d, or 8440e; and
``(B) by any individual, not described in subparagraph (A),
who is otherwise eligible to make elective deferrals under the
Thrift Savings Plan;
``(2) any provisions which may, as a result of enactment of
this section, be necessary in order to clarify the meaning of any
reference to an `account' made in section 8432(f), 8433, 8434(d),
8435, 8437, or any other provision of law; and
``(3) any other provisions which may be necessary to carry out
this section.''.
(b) Clerical Amendment.--The analysis for chapter 84 of title 5,
United States Code, is amended by inserting after the item relating to
section 8432c the following:
``8432d. Qualified Roth contribution program.''.

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(a) In General.--Section 8438(b)(1) of title 5, United States Code,
is amended--
(1) in subparagraph (D), by striking ``and'' at the end;
(2) in subparagraph (E), by striking the period and inserting
``; and''; and
(3) by adding after subparagraph (E) the following:
``(F) a service that enables participants to invest in
mutual funds, if the Board authorizes the mutual fund window
under paragraph (5).''.
(b) Requirements.--Section 8438(b) of title 5, United States Code,
is amended by adding at the end the following:
``(5)(A) The Board may authorize the addition of a mutual fund
window under the Thrift Savings Plan if the Board determines that such
addition would be in the best interests of participants.
``(B) The Board shall ensure that any expenses charged for use of
the mutual fund window are borne solely by the participants who use
such window.
``(C) The Board may establish such other terms and conditions for
the mutual fund window as the Board considers appropriate to protect
the interests of participants, including requirements relating to risk
disclosure.
``(D) The Board shall consult with the Employee Thrift Advisory
Council (established under section 8473) before authorizing the
addition of a mutual fund window or establishing a service that enables
participants to invest in mutual funds.''.
(c) Technical and Conforming Amendment.--Section 8438(d)(1) of
title 5, United States Code, is amended by inserting ``and options''
after ``investment funds''.

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(a) Annual Report.--The Board shall, not later than June 30 of each
year, submit to Congress an annual report on the operations of the
Thrift Savings Plan. Such report shall include, for the prior calendar
year, information on the number of participants as of the last day of
such prior calendar year, the median balance in participants' accounts
as of such last day, demographic information on participants, the
percentage allocation of amounts among investment funds or options, the
status of the development and implementation of the mutual fund window,
the diversity demographics of any company, investment adviser, or other
entity retained to invest and manage the assets of the Thrift Savings
Fund, and such other information as the Board considers appropriate. A
copy of each annual report under this subsection shall be made
available to the public through an Internet website.
(b) Reporting of Fees and Other Information.--
(1) In general.--The Board shall include in the periodic
statements provided to participants under section 8439(c) of title
5, United States Code, the amount of the investment management
fees, administrative expenses, and any other fees or expenses paid
with respect to each investment fund and option under the Thrift
Savings Plan. Any such statement shall also provide a statement
notifying participants as to how they may access the annual report
described in subsection (a), as well as any other information
concerning the Thrift Savings Plan that might be useful.
(2) Use of estimates.--For purposes of providing the
information required under this subsection, the Board may provide a
reasonable and representative estimate of any fees or expenses
described in paragraph (1) and shall indicate any such estimate as
being such an estimate. Any such estimate shall be based on the
previous year's experience.
(c) Definitions.--For purposes of this section--
(1) the term ``Board'' has the meaning given such term by
8401(5) of title 5, United States Code;
(2) the term ``participant'' has the meaning given such term by
section 8471(3) of title 5, United States Code; and
(3) the term ``account'' means an account established under
section 8439 of title 5, United States Code.

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(a) In General.--Section 8439(d) of title 5, United States Code, is
amended--
(1) by striking the matter after ``who elects to invest in''
and before ``shall sign an acknowledgment'' and inserting ``any
investment fund or option under this chapter, other than the
Government Securities Investment Fund,''; and
(2) by striking ``either such Fund'' and inserting ``any such
fund or option''.
(b) Coordination With Provisions Relating to Fiduciary
Responsibilities, Liabilities, and Penalties.--Section 8477(e)(1)(C) of
title 5, United States Code, is amended--
(1) by redesignating subparagraph (C) as subparagraph (C)(i);
and
(2) by adding at the end the following:
``(ii) A fiduciary shall not be liable under subparagraph (A), and
no civil action may be brought against a fiduciary--
``(I) for providing for the automatic enrollment of a
participant in accordance with section 8432(b)(2)(A);
``(II) for enrolling a participant in a default investment fund
in accordance with section 8438(c)(2); or
``(III) for allowing a participant to invest through the mutual
fund window or for establishing restrictions applicable to
participants' ability to invest through the mutual fund window.''.

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(a) In General.--Chapter 84 of title 5, United States Code, is
amended by inserting after section 8479 the following:
``Sec. 8480. Subpoena authority
``(a) In order to carry out the responsibilities specified in this
subchapter and subchapter III of this chapter, the Executive Director
may issue subpoenas commanding each person to whom the subpoena is
directed to produce designated books, documents, records,
electronically stored information, or tangible materials in the
possession or control of that individual.
``(b) Notwithstanding any Federal, State, or local law, any person,
including officers, agents, and employees, receiving a subpoena under
this section, who complies in good faith with the subpoena and thus
produces the materials sought, shall not be liable in any court of any
State or the United States to any individual, domestic or foreign
corporation or upon a partnership or other unincorporated association
for such production.
``(c) When a person fails to obey a subpoena issued under this
section, the district court of the United States for the district in
which the investigation is conducted or in which the person failing to
obey is found, shall on proper application issue an order directing
that person to comply with the subpoena. The court may punish as
contempt any disobedience of its order.
``(d) The Executive Director shall prescribe regulations to carry
out subsection (a).''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 84 of title 5, United States Code, is amended by inserting
after the item relating to section 8479 the following:
``8480. Subpoena authority.''.

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PROCEEDINGS.
Section 8437(e)(3) of title 5, United States Code, is amended in
the first sentence by striking ``or relating to the enforcement of a
judgment for the physically, sexually, or emotionally abusing a child
as provided under section 8467(a)'' and inserting ``the enforcement of
an order for restitution under section 3663A of title 18, forfeiture
under section 8432(g)(5) of this title, or an obligation of the
Executive Director to make a payment to another person under section
8467 of this title''.

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Section 8433(e) of title 5, United States Code, is amended--
(1) by inserting ``(1)'' after ``(e)''; and
(2) by adding at the end the following:
``(2) Notwithstanding section 8424(d), if an employee, Member,
former employee, or former Member dies and has designated as sole or
partial beneficiary his or her spouse at the time of death, or, if an
employee, Member, former employee, or former Member, dies with no
designated beneficiary and is survived by a spouse, the spouse may
maintain the portion of the employee's or Member's account to which the
spouse is entitled in accordance with the following terms:
``(A) Subject to the limitations of subparagraph (B), the
spouse shall have the same withdrawal options under subsection (b)
as the employee or Member were the employee or Member living.
``(B) The spouse may not make withdrawals under subsection (g)
or (h).
``(C) The spouse may not make contributions or transfers to the
account.
``(D) The account shall be disbursed upon the death of the
surviving spouse. A beneficiary or surviving spouse of a deceased
spouse who has inherited an account is ineligible to maintain the
inherited spousal account.
``(3) The Executive Director shall prescribe regulations to carry
out this subsection.''.

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THRIFT SAVINGS PLAN.
(a) Sense of Congress.--It is the sense of Congress that--
(1) members of the uniformed services should have a retirement
system that is at least as generous as the one which is available
to Federal civilian employees; and
(2) Federal civilian employees receive matching contributions
from their employing agencies for their contributions to the Thrift
Savings Fund, but the costs of requiring such a matching
contribution from the Department of Defense could be significant.
(b) Reporting Requirement.--Not later than 180 days after the date
of the enactment of this Act, the Secretary of Defense shall report to
Congress on--
(1) the cost to the Department of Defense of providing a
matching payment with respect to contributions made to the Thrift
Savings Fund by members of the Armed Forces;
(2) the effect that requiring such a matching payment would
have on recruitment and retention; and
(3) any other information that the Secretary of Defense
considers appropriate.
ARMED FORCES MEMBERS

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ALLOWANCE FOR WIDOWS AND WIDOWERS OF DECEASED MEMBERS OF THE
ARMED FORCES AFFECTED BY REQUIRED SURVIVOR BENEFIT PLAN ANNUITY
OFFSET FOR DEPENDENCY AND INDEMNITY COMPENSATION.
(a) Payment Amount Per Fiscal Year.--Paragraph (2) of section
1450(m) of title 10, United States Code, is amended--
(1) in subparagraph (E), by striking ``and'' after the
semicolon; and
(2) by striking subparagraph (F) and inserting the following
new subparagraphs:
``(F) for months during fiscal year 2014, $150;
``(G) for months during fiscal year 2015, $200;
``(H) for months during fiscal year 2016, $275; and
``(I) for months during fiscal year 2017, $310.''.
(b) Duration.--Paragraph (6) of such section is amended--
(1) by striking ``February 28, 2016'' and inserting ``September
30, 2017''; and
(2) by striking ``March 1, 2016'' both places it appears and
inserting ``October 1, 2017''.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

3ea9608198a0dada3c53aece8ebf61018265a67c812509770ca500df5f960cb7

Thrift Savings Plan Enhancement Act of 2009

To protect the public health by providing the Food and Drug Administration with certain authority to regulate tobacco products, to amend title 5, United States Code, to make certain modifications in the Thrift Savings Plan, the Civil Service Retirement System, and the Federal Employees' Retirement System, and for other purposes.

Thrift Savings Plan Enhancement Act of 2009 — HR. 1256

Other Sections

DIVISION A

DIVISION A / TITLE I

DIVISION A / TITLE II

DIVISION A / TITLE III

DIVISION B

DIVISION B / TITLE I

DIVISION B / TITLE II

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