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FTC: Tar testing invalid
Agency takes aim at labels implying cigarette safety
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Published: November 27, 2008
The Federal Trade Commission said yesterday that it has pulled its approval of a controversial method that allowed for the labeling of cigarettes as "light" and "low tar" for 42 years.
The FTC's decision, long expected, is the latest development in an ongoing debate that has reached the U.S. Supreme Court about what can be marketed as reduced risk in cigarette-smoking.
Since 1966, cigarette manufacturers, including R.J. Reynolds Tobacco Co., and the FTC have relied on the Cambridge Filter Method -- a machine that "smokes" cigarettes according to a standard protocol -- for determining relative risk and provide data to consumers.
The data eventually led to three categories for cigarette styles:
□ Cigarettes with a tar rate above 15 milligrams for each cigarette were considered by the industry as "full flavor."
□ Cigarettes with a tar rating of less than 15 milligrams are referred to as "low" or "light."
□ Cigarettes with a tar rate below 6 are described as "ultra low" or "ultra light."
The FTC said it has determined that the filter method is flawed because it was not designed to "replicate actual human smoking," such as smoking lower nicotine/low tar cigarettes more deeply to obtain more nicotine.
Tobacco marketers "should no longer use terms suggesting the FTC's endorsement or approval of any specific test method," the FTC said. "The commission will not allow its stamp of approval on a test method that is confusing or misleading to consumers."
"The broader message is that ‘low tar/low nicotine' has inaccurately led many smokers to believe lower risk," said Dr. John Spangler, the director of the Tobacco Intervention program at Wake Forest University School of Medicine. "So, the new message that the government's testing method has not been accurate shows that the public may have been even more misled."
The FTC said it would begin to consider legal challenges focusing on cigarette advertising, marketing and packaging as false or misleading related to the filter method after Jan. 1. The FTC carved out a March 1 exemption to challenges for products already at retail, packaging already in distribution and print advertising already submitted for publication.
According to a Federal Register notice filed by the FTC, the four major American tobacco manufacturers opposed the rescinding of the approval until a replacement method was in place.
Reynolds and Philip Morris USA said they will review the decision before making comment.
In October, the Supreme Court justices heard arguments about overturning a federal law that bars states from regulating any aspect of cigarette advertising that involves smoking and health.
In an August 2006 ruling that the tobacco companies have violated civil racketeering laws, Judge Gladys Kessler of U.S. District Court found that the defendants "falsely marketed and promoted ‘low tar' and ‘light' cigarettes as less harmful than full-flavor cigarettes in order to keep people smoking and sustain corporate revenues."
But a federal appeals court appeared skeptical in October as to whether Kessler's ruling could be supported under racketeering laws, in part because of the FTC's previous support of the filter method.
Some anti-smoking advocates hailed the FTC's decision as a key tipping point for Food and Drug Administration regulation of the tobacco industry.
"Today's FTC action does not explicitly prohibit the tobacco companies from continuing to make statements regarding tar and nicotine levels, and does not immediately ban deceptive cigarette descriptions such as ‘light' or ‘low-tar,'" said Matthew Myers, the president of the Campaign for Tobacco-Free Kids.
"The legislation before Congress would ban such terms."
Other anti-smoking advocates said they hope that the decision will spur more conversation about establishing firmer criteria for determining the relative risk of using tobacco products, including smokeless and nicotine cessation.
"I think that they will continue to use the terms, but we may see more in the way of labeling and maybe even inserts explaining to consumers what the terms mean and don't mean, i.e. taste and texture vs. safety," said Scott Ballin, a tobacco-control advocate.
Pamela Jones Harbour, an FTC commissioner, said she hopes that the decision will spur scientists to "develop a test that provides consumers with a meaningful measure of the tar and nicotine yields of the cigarettes they smoke."
■ Richard Craver can be reached at 727-7376 or at rcraver@wsjournal.com.
■ The Associated Press contributed to this article.
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