Orrin Hatch: “There are other provisions of the bill that are constitutionally infirm. The look-back penalties in the Commerce bill…”

“There are other provisions of the bill that are constitutionally infirm. The look-back penalties in the Commerce bill, which are imposed on the tobacco companies if teen smoking does not meet certain goals for reduction, are subject to constitutional challenge unless they are voluntarily agreed to by the tobacco companies. I must add that the Commerce bill now terms the penalties ``surcharges,'' but this simply is an attempt to elevate form over substance. No matter how it is termed, these payments are the functional equivalent of fines. Chief among the grounds for challenging this provision is due process. The Supreme Court has held that imposed penalties must be related to the objective of the legislation. Penalties should not be imposed without a showing of fault. I refer you to the Vlandis v. Kline case (412 U.S. 441) in 1973 which held that penalties without fault create an ``irrebuttable presumption.'' Given what we know--or do not know--about how teens react to advertising, it is possible that even if the tobacco industry does all that it can to prevent teen smoking, the target will not be met. Moreover, besides the look-back penalties, the Commerce bill contains an additional provision that companies lose their liability cap protection if underage smoking exceeds the targets by a set amount. This is also done without a showing of fault. Thus, it is clear that a court would interpret the Commerce bill's penalties as punitive.”