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this correct, Dr. Kessler — to you or to us or the committee that 

 would violate confidential information? 



Mr. BlLlRAKis. In the process of the committee working with him 

 to determine the merit of the confidentiality of those documents, 

 does that include the minority? 



Mr. Waxman. As to whether it is confidential or not? 



Mr. BILIRAKIS. Yes. 



Mr, Waxman. I think we ought to work together. 



Mr. Kessler. Mr. Chairman, could I— just so the record is com- 

 plete, yesterday I think we briefed both the minority and the ma- 

 jority. In fact, as I was told this morning, the minority actually 

 asked more questions and had more information before this hear- 

 ing than the majority, in fact, in those briefings. 



So we briefed at the same time. We did not share documents 

 with either side yesterday in those briefings. 



Mr. McMillan. Mr. Chairman, if you would yield for just one 

 comment. 



Mr. Waxman. Yes. 



Mr. McMillan. I think what we are concerned with here, there 

 has been a pattern on this issue of selective documents being 

 brought to the hearing room without prior knowledge on the part 

 of anyone else as to what was going to be considered. 



Mr. Waxman. Mr. McMillan, that has not happened. I think if 

 you have been led to believe that, you have been informed incor- 

 rectly. 



Mr. McMillan. I have been sitting here in the room, Mr. Chair- 

 man. And all I am asking is that we have equal access to the same 

 information, if we are going to respect 



Mr. Waxman. The gentleman is absolutely correct in what he is 

 requesting and I think he ought to have and has had equal access 

 to documents that any member of some subcommittee, including 

 the chairman, has received. 



Now if I could, I am going to ask my questions and then we will 

 recognize Members on a subsequent round, but I do want to make 

 one point clear. We did not get any documents that the other mem- 

 bers of the subcommittee didn't get, and as far as briefings, they 

 were given to the Republicans as well as to the Democrats. 



I do want to point out and I do want to underscore that what 

 is being missed is that Dr. Kessler has been misled by a company 

 and through his investigation found out that they tried to mislead 

 the FDA. And I don't think he ought to be misled or that we should 

 be misled. 



But let me talk about times when people have been misled. The 

 industry has asserted that nicotine is not addictive. They just made 

 that assertion even as of a couple of months ago when the chief ex- 

 ecutive officers testified. The industry has asserted that they don't 

 manipulate nicotine, when in fact, they do manipulate nicotine. 



Brown & Williamson said that it is not feasible for them to de- 

 velop a genetically altered tobacco product that would be higher in 

 nicotine levels and that assertion was a few months ago and now 

 we find out that assertion was incorrect. The industry has also as- 

 serted that we didn't need to know about all of these additives be- 

 cause these additives were only for flavoring and what we are 

 learning today is that two of the additives were not just for flavor- 



