March 5, 1998

Objecting to Oath, 2 Smoking Foes Cancel Testimony

By DAVID E. ROSENBAUM

ASHINGTON -- Former Surgeon General C. Everett Koop and former Food and Drugs Commissioner David Kessler on Wednesday abruptly canceled their congressional testimony on legislation to regulate tobacco scheduled for Thursday morning after learning that they would be required to testify under oath.

They said that by requiring them to take an oath, the subcommittee on health of the House Commerce Committee would be treating their testimony as comparable to that given in January by the top executives of the five largest tobacco companies.

A spokesman for the committee said that witnesses were often sworn in and that the panel saw no reason to treat Koop and Kessler, two of the nation's most prominent public health authorities and most outspoken critics of the tobacco industry, any differently.

In a letter Wednesday to the subcommittee chairman, Rep. Michael Bilirakis, R-Fla., Koop and Kessler said: "As you know, it is extremely unusual for private citizens to be sworn in before a congressional committee unless they themselves are being investigated. We can only assume that this is being done in our case to put us on some sort of parity or equal footing with the tobacco executives, who were sworn in. We decline to be put in that position. We have each devoted much of our professional careers to public service and to working for public health. We see no reason for the committee to suggest that our testimony about tobacco now requires that we be put under oath or treated akin to tobacco executives."

The Justice Department is conducting a criminal investigation of the tobacco industry that includes whether some executives had testified truthfully four years ago when they told the same subcommittee that they had never directed cigarette advertising at children.

Koop and Kessler also wrote that they did not want to appear with other antismoking witnesses and cited their busy schedules.

But in an interview Wednesday night, Kessler, who is now dean of the Yale Medical School, said that he had not learned until Tuesday that he would be required to take an oath. He left no doubt that this was the reason he would not be appearing.

"Getting to a consensus on what should be national tobacco policy is not going to be easy," he said. "It's going to require people coming together and having many discussions. It needs to be done in a constructive environment."

The committee spokesman, who declined to allow his name to be used, said that the committee still hoped to take testimony on tobacco legislation from Koop and Kessler. He said that the other three witnesses scheduled for Thursday, all opponents of smoking, would be sworn.