FTC Acts to Prevent Tobacco Industry Deception about Tar, Nicotine Levels; Congress Should Give FDA Authority over Tobacco Products

Statement of Matthew L. Myers, President, Campaign for Tobacco-Free Kids

Nov. 26 2008

Washington, DC — The Federal Trade Commission today has taken important action to protect public health by prohibiting tobacco companies from claiming that cigarette tar and nicotine ratings are based on an FTC-approved testing method or that they are endorsed or approved by the FTC. The FTC action rescinds guidance issued in 1966 that permitted statements concerning tar and nicotine yields based on a smoking machine test known as the Cambridge Filter Method, commonly called "the FTC method." Today's FTC action puts the tobacco companies on notice that they risk legal action by the FTC if they use the current tar and nicotine ratings in a way the FTC finds false or misleading.

While today's FTC action is important, it will not by itself end the tobacco industry's deceptive marketing of "light" and "low-tar" cigarettes and underscores the need for Congress to enact pending legislation to grant the U.S. Food and Drug Administration (FDA) regulatory authority over tobacco products. That is exactly what FTC Commissioner Pamela Jones Harbour urged Congress to do in a statement today.

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." The legislation before Congress would ban such terms. It would also grant the FDA the authority to strictly regulate any health claims about tobacco products to ensure they are scientifically proven and are not marketed in ways that encourage new smokers to start or discourage current smokers from quitting. The FDA would also have authority to require new testing methods, as sought by today's FTC action, to more accurately measure levels of tar, nicotine and other constituents in tobacco products, to use this information to require changes in tobacco products and to decide whether to publicly release this information.

The U.S. House of Representatives on July 30 voted 326 to 102 to approve this legislation, and it has 60 sponsors in the Senate, including President-elect Barack Obama and Senate Majority Leader Harry Reid. This legislation presents the incoming Administration and Congress with the opportunity for an early, bipartisan victory that would significantly improve the nation's health.

The FTC's action is timely and needed in light of the overwhelming scientific evidence that machine-based measures of tar and nicotine do not provide meaningful information about the amounts of tar and nicotine that smokers actually receive or about the relative health risks of different cigarettes. That is because the tobacco industry has been able to design cigarettes to undermine the validity of the test and because the machine test does not take into account the way actual smokers adjust their smoking behavior, for example by taking more or deeper puffs or blocking ventilation holes, to maintain nicotine levels. As the FTC stated today, "The Commission will not allow its stamp of approval on a test method that is confusing or misleading to consumers."

Numerous public health authorities, including the National Cancer Institute in a landmark 2001 report, have found that cigarette manufacturers for decades have deceptively marketed "light" and "low-tar" cigarettes as reducing health risks despite knowing from their own research that this was not the case. The manufacturers' ability to claim that nicotine and tar ratings are based on an FTC-approved testing method has been an integral part of this low-tar lie. In an August 2006 ruling that the tobacco companies have violated civil racketeering laws, U.S. District Court Judge Gladys Kessler found that the tobacco company 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."

Today's FTC action also provides important support for ongoing litigation to hold cigarette manufacturers accountable for the harm caused by their deceptive marketing of "light" and "low-tar" cigarettes. Class-action lawsuits have been filed in several state courts accusing cigarette manufacturers of fraudulently marketing "light" and "low-tar" cigarettes as safer than other cigarettes. The Altria Group Inc., parent company of Philip Morris, has asked the U.S. Supreme Court in a pending appeal to dismiss the state cases because the company acted on the basis of FTC regulation that preempts state law. The FTC and the U.S. Solicitor General filed a brief in the case urging the Supreme Court to reject Altria's appeal. The brief argued that the FTC "never gave affirmative endorsement to such descriptors, much less to their deceptive use."

 

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