Proposal to Rescind FTC Guidance Concerning the Current Cigarette Test Method, 40350-40352 [E8-16006]

Download as PDF 40350 Federal Register / Vol. 73, No. 135 / Monday, July 14, 2008 / Notices set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)). The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than July 29, 2008. A. Federal Reserve Bank of Richmond (A. Linwood Gill, III, Vice President) 701 East Byrd Street, Richmond, Virginia 23261–4528: 1. Christopher James Polino, to control at least 15 percent of the voting shares of Davis Trust Financial Corporation, and thereby acquire shares of Davis Trust Company, all of Elkins, West Virginia. B. Federal Reserve Bank of Minneapolis (Jacqueline G. King, Community Affairs Officer) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291: 1. Brian K. Solsrud, Minneapolis, Minnesota; Gregory A. Solsrud, Dunwoody, Georgia; Corinne E. Solsrud, Mosinee, Wisconsin; and Rachel A. Solsrud Goodell, Augusta, Wisconsin, individually and as a group acting in concert to acquire control of Kimberly Leasing Corporation, Augusta, Wisconsin, and thereby indirectly acquire control of Unity Bank, Rush City, Minnesota. 2. Noah Wynter Wilcox, to join a group acting in concert with Steven Monroe Wilcox, to acquire control of Wilcox Bancshares, Inc., and thereby indirectly acquire control of Grand Rapids State Bank, all of Grand Rapids, Minnesota. Board of Governors of the Federal Reserve System, July 9, 2008. Robert deV. Frierson, Deputy Secretary of the Board. [FR Doc. E8–15936 Filed 7–11–08; 8:45 am] BILLING CODE 6210–01–S FEDERAL RESERVE SYSTEM pwalker on PROD1PC71 with NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or VerDate Aug<31>2005 17:08 Jul 11, 2008 Jkt 214001 bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below. The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/. Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 8, 2008. A. Federal Reserve Bank of Chicago (Burl Thornton, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690–1414: 1. Hometown Community Bancorp, Inc., and Hometown Community Bancorp Employee Stock Ownership Plan and Trust, both of Morton, Illinois, to merge with Alpha Financial Group, Inc., and Alpha Financial Group, Inc. Employee Stock Ownership Plan, and thereby indirectly acquire Alpha Community Bank, all of Toluca, Illinois. B. Federal Reserve Bank of San Francisco (Kenneth Binning, Director, Regional and Community Bank Group) 101 Market Street, San Francisco, California 94105–1579: 1. Summit Banking Company, to become a bank holding company by acquiring 100 percent of Summit Bank, both of Burlington, Washington. Board of Governors of the Federal Reserve System, July 9, 2008. Robert deV. Frierson, Deputy Secretary of the Board. [FR Doc. E8–15937 Filed 7–11–08; 8:45 am] BILLING CODE 6210–01–S FEDERAL TRADE COMMISSION Proposal to Rescind FTC Guidance Concerning the Current Cigarette Test Method AGENCY: PO 00000 Federal Trade Commission Frm 00068 Fmt 4703 Sfmt 4703 ACTION: Notice SUMMARY: The Federal Trade Commission (‘‘FTC’’ or ‘‘Commission’’) is proposing to rescind its guidance that it is generally not a violation of the FTC Act to make factual statements of the tar and nicotine yields of cigarettes when statements of such yields are supported by testing conducted pursuant to the Cambridge Filter Method, also frequently referred to as ‘‘the FTC Test Method.’’ If it withdraws this guidance, advertisers should not use terms such as ‘‘per FTC Method’’ or other phrases that state or imply FTC endorsement or approval of the Cambridge Filter Method or other machine-based test methods. The Commission seeks public comments on its proposal. DATES: Comments must be submitted on or before August 12, 2008. ADDRESSES: Interested parties are invited to submit comments. Comments should refer to ‘‘Cigarette Test Method, [P944509]’’ to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed or delivered, with two complete copies, to the following address: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex L), 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Because paper mail in the Washington area and at the Commission is subject to delay, please consider submitting your comments in electronic form, as described below. However, if the comment contains any material for which confidential treatment is requested, it must be filed in paper form, and the first page of the document must be clearly labeled ‘‘Confidential.’’1 Comments filed in electronic form should be submitted by following the instructions on the web-based form at (https://secure.commentworks.com/ftcCigaretteTestMethod). To ensure that the Commission considers an electronic comment, you must file it on the webbased form at the (https:// secure.commentworks.com/ftcCigaretteTestMethod) weblink. If this Notice appears at www.regulations.gov, you may also file an electronic comment through that web site. The Commission will consider all comments that regulations.gov forwards to it. 1 Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission’s General Counsel, consistent with applicable law and the public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c). E:\FR\FM\14JYN1.SGM 14JYN1 pwalker on PROD1PC71 with NOTICES Federal Register / Vol. 73, No. 135 / Monday, July 14, 2008 / Notices The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments, whether filed in paper or electronic form, will be considered by the Commission, and will be available to the public on the FTC web site, to the extent practicable, at www.ftc.gov. As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC web site. More information, including routine uses permitted by the Privacy Act, may be found in the FTC’s privacy policy at (https://www.ftc.gov/ ftc/privacy/htm). FOR FURTHER INFORMATION CONTACT: Requests for additional information should be addressed to Rosemary Rosso, Senior Attorney, Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580, (202) 3262174. SUPPLEMENTARY INFORMATION: Cigarette yields for tar, nicotine, and carbon monoxide are currently measured by the Cambridge Filter Method, which has been commonly referred to as ‘‘the FTC Method.’’ For some time, the Commission has been concerned that the machine-measured yields determined by the Cambridge Filter Method may be misleading to individual consumers who rely on the yields as indicators of the amount of tar, nicotine, and carbon monoxide they actually will get from smoking a particular cigarette. In fact, the current yields tend to be relatively poor indicators of tar, nicotine, and carbon monoxide exposure, and do not provide a good basis for comparison among cigarettes. Accordingly, the Commission proposes to withdraw its guidance, announced in 1966, indicating that factual statements of tar and nicotine yields based on the Cambridge Filter Method generally will not violate the FTC Act. If the Commission withdraws this guidance, advertisers should not use terms such as ‘‘per FTC Method’’ or other phrases that state or imply FTC endorsement or approval of the Cambridge Filter Method or other machine-based test methods. The Commission invites public comment on its proposal. I. BACKGROUND On March 25, 1966, the Commission informed the major cigarette manufacturers that factual statements of VerDate Aug<31>2005 17:08 Jul 11, 2008 Jkt 214001 the tar and nicotine content of the mainstream smoke of cigarettes would not be in violation of legal provisions administered by the FTC: so long as: (1) no collateral representations (other than factual statements of tar and nicotine content of cigarettes offered for sale to the public) are made, expressly or by implication, as to reduction or elimination of health hazards, and (2) the statement of tar and nicotine content is supported by adequate records of tests conducted in accordance with the Cambridge Filter Method.2 Importantly, the 1966 guidance only addresses simple factual statements of tar and nicotine yields. It does not apply to other conduct or express or implied representations, even if they concern tar and nicotine yields. Thus, deceptive claims about tar and nicotine yields or health risks are still subject to the full force of the Commission’s jurisdiction. See, e.g., FTC v. Brown & Williamson Tobacco Corp., 778 F. 2d 35 (D.C. Cir. 1985); American Tobacco Co., 119 F.T.C. 3 (1995). Moreover, the Commission’s 1966 guidance does not require companies to state the tar and nicotine yields of their cigarettes in their advertisements or on product labels. Rather, it sets forth the type of substantiation the Commission would deem adequate to support statements of tar and nicotine yields if cigarette companies choose to make such statements. From the outset, cigarette testing under the Cambridge Filter Method was intended to produce uniform, standardized data about the tar and nicotine yields of mainstream cigarette smoke, not to replicate actual human smoking. Because no known test could accurately replicate human smoking, the FTC believed that the most important objective was to ensure that cigarette companies could present tar and nicotine information to the public based on a standardized method that would allow comparisons among cigarettes. In 1966, most public health officials believed that reducing the amount of ‘‘tar’’ in a cigarette could reduce a smoker’s risk of lung cancer. Therefore, it was thought that giving consumers 2 News Release of the Federal Trade Commission (Mar. 25, 1966) (reciting the text of identical letters sent to the major cigarette manufacturers and the Administrator of The Cigarette Advertising Code, Inc.). The Cambridge Filter Method determines the relative yields of individual cigarettes by ‘‘smoking’’ them in a standardized fashion, according to a pre-determined protocol, on a machine. The machine is calibrated to take one puff of 2-seconds duration and 35 ml. volume every minute, and to smoke the cigarettes to a specified length. PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 40351 uniform and standardized information about the tar and nicotine yields of cigarettes would help smokers make informed decisions about the cigarettes they smoked.3 During the 40 years since the Commission announced this guidance, machine-measured tar and nicotine yields of cigarettes have decreased dramatically. In 1968, for example, only 2% of all cigarettes had machinemeasured yields of 15 mg or less. Today, over 85% of all cigarettes sold have machine-measured yields of 15 mg or less. Despite these dramatic decreases in machine-measured yields, the Commission has been concerned for some time that the current test method may be misleading to individual consumers who rely on the ratings it produces as indicators of the amount of tar and nicotine they actually will get from their cigarettes, and who use this information as a basis for comparison when choosing which cigarettes they smoke. In fact, the current yields tend to be relatively poor predictors of tar and nicotine exposure. This is primarily due to smoker compensation—i.e., the tendency of smokers of lower-rated cigarettes to take bigger, deeper, or more frequent puffs, or to otherwise alter their smoking behavior in order to obtain the dosage of nicotine they need. Such compensatory behavior in the way people smoke and changes in cigarette design that facilitate compensation can have significant effects on the amount of tar, nicotine, and carbon monoxide one gets from any particular cigarette. Concerns about the machine-based Cambridge Filter Method became a substantial issue in the 1990s because of changes in modern cigarette design and due to a better understanding of the nature and effects of compensatory smoking behavior.4 3 When the test method was adopted, the public health community believed that ‘‘[t]he preponderance of scientific information strongly suggests that the lower the tar and nicotine content of cigarette smoke, the less harmful would be the effect.’’ U.S. Dept. of Health and Human Services, The Health Consequences of Smoking: The Changing Cigarette 1(1981) (quoting a 1966 Public Health Service statement). 4 To address these concerns, in 1994, the Commission, along with Congressman Henry Waxman, asked the National Cancer Institute (‘‘NCI’’) to convene a consensus conference to address cigarette testing issues. That conference took place in December 1994. Smoking and Tobacco Control Monograph 7: The FTC Cigarette Test Method for Determining Tar, Nicotine, and Carbon Monoxide Yields of U.S. Cigarettes: Report of the NCI Expert Committee, National Institutes of Health, National Cancer Institute (1996). In 1997, the Commission published a Federal Register Notice proposing certain changes to the test method in accordance with recommendations E:\FR\FM\14JYN1.SGM Continued 14JYN1 40352 Federal Register / Vol. 73, No. 135 / Monday, July 14, 2008 / Notices pwalker on PROD1PC71 with NOTICES Today, the consensus of the federal health agencies and the scientific community is that machine-based measurements of tar and nicotine yields using the Cambridge Filter Method ‘‘do not offer smokers meaningful information on the amount of tar and nicotine they will receive from a cigarette, or on the relative amounts of tar and nicotine exposure they are likely to receive from smoking different brands of cigarettes.’’5 from the NCI consensus conference. 42 Fed. Reg. 48,158 (Sept. 12, 1997). In response, the cigarette companies argued in favor of retaining the existing test method. Public health agencies asked the Commission to postpone its proposed modifications until a broader review of unresolved scientific issues surrounding the system could be addressed. In 1998, the Commission responded to the public health agencies’ concerns by formally requesting that the Department of Health and Human Services (‘‘DHHS’’) conduct a review of the FTC’s cigarette test method. Letter from Donald S. Clark, Secretary, Federal Trade Commission to the Honorable Donna E. Shalala, Secretary, Department of Health and Human Services (Nov. 19, 1998). In particular, the Commission asked the DHHS to provide recommendations as to whether the testing system should be continued, and, if it should be continued, what specific changes should be made in order to correct the limitations previously identified by the NCI and other public health officials. The DHHS provided its initial response to the FTC in an NCI Report concerning the public health effects of low tar cigarettes. Smoking and Tobacco Control Monograph 13: Risks Associated with Smoking Cigarettes with Low Machine-Measured Yields of Tar and Nicotine, National Institutes of Health, National Cancer Institute (2001) (‘‘Monograph 13’’). The national panel of scientific experts assembled for the review concluded that the existing scientific evidence, including patterns of mortality from smoking-caused diseases, does not indicate a benefit to public health from changes in cigarette design and manufacturing over the past 50 years. Monograph 13 at 10. Monograph 13 also concluded that measurements of tar and nicotine as measured by the Cambridge Filter Method do not offer meaningful information to consumers. Id. When it announced the release of Monograph 13, the NCI noted the FTC’s previous request, and indicated that it would work with its sister sciencebased agencies at DHHS to determine what changes needed to be made to the testing method. National Cancer Institute, ‘‘Low-Tar Cigarettes: Evidence Does Not Indicate a Benefit to Public Health,’’ News from the NCI (Nov. 27, 2001). The FTC understands that representatives from agencies within DHHS are continuing to look into these issues. In light of its concerns, the Commission for more than a decade has recommended that Congress grant authority over cigarette testing to one of the federal government’s science-based public health agencies. See, e.g., Prepared Statement of the Federal Trade Commission Before the Committee on Energy, Commerce, and Transportation, United States Senate (Nov. 13, 2007). 5 Testimony of Cathy Backinger, Ph.D., Acting Chief, Tobacco Control Research Branch, National Cancer Institute, presented before the Committee on Science, Commerce and Transportation, U.S. Senate (Nov. 13, 2007). See also Testimony of Jonathan M. Samet, M.D., M.S., Professor and Chair, Dept. of Epidemiology, Johns Hopkins Bloomberg School of Public Health, presented before the Committee on Science, Commerce and Transportation, U.S. Senate (Nov. 13, 2007); Smoking and Tobacco Control Monograph 13: Risks Associated with Smoking Cigarettes with Low Machine-Measured Yields of Tar and Nicotine, National Institutes of Health, National Cancer Institute (2001) . VerDate Aug<31>2005 18:09 Jul 11, 2008 Jkt 214001 II. PROPOSAL TO RESCIND COMMISSION GUIDANCE CONCERNING FACTUAL STATEMENTS OF TAR AND NICOTINE YIELDS The Commission proposes to rescind its guidance that generally permits factual statements about the tar and nicotine yields of a cigarette when such statements are supported by the Cambridge Filter Method.6 If it rescinds its guidance, advertisers should not use terms such as ‘‘per FTC Method’’ or other phrases that state or imply FTC endorsement or approval of the Cambridge Filter Method or other machine-based test methods. A. Tar and Nicotine Statements Based on Cambridge Test Method Given the serious limitations of the existing test method, the Commission’s rationale for its 1966 guidance generally permitting factual tar and nicotine statements based on this methodology no longer appears valid. The Commission is concerned that statements based on the Cambridge Filter Method may be confusing or misleading to consumers who believe they will get proportionately less of the harmful substances from cigarette smoke by smoking relatively lower-yield cigarettes than from higher-yield cigarettes. Thus, the Commission proposes to rescind its guidance that generally permits claims based upon a single standardized machine-based test method — the Cambridge Filter Method. Upon withdrawal of this guidance, factual statements about tar and nicotine yields would be evaluated the same as any other advertising or marketing claims subject to the Commission’s jurisdiction: the statements could be made as long as they were truthful, nonmisleading, and adequately substantiated. B. Claims Stating or Implying FTC Endorsement or Approval Additionally, the Commission believes it should not permit claims that consumers are likely to interpret as FTC approval, ownership, or endorsement of the Cambridge Filter Method. Thus, if the Commission withdraws the guidance, advertisers should not use terms such as ‘‘per FTC Method’’ or other phrases that state or imply FTC 6 Cigarette manufacturers have adopted descriptive terms such as ‘‘light’’ and ‘‘ultra low’’ apparently based on ranges of machine-measured tar yields. The Commission has not defined those terms, nor provided guidance or authorization as to the use of descriptors. Because there is no Commission enforcement policy with respect to the use of descriptors, this proposal does not address the use of descriptors. PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 approval, ownership, or endorsement of the Cambridge Filter Method or other machine-based test methods. III. REQUEST FOR COMMENTS AND RESPONSES TO SPECIFIC QUESTIONS The Commission is seeking comment on the following specific questions and on any other issues relevant to the policies stated above in this Notice: 1. Should the Commission rescind its guidance that generally permits factual statements about tar and nicotine yields when such statements are based on a single standardized test method—the Cambridge Filter Method? 2. What effects, if any, would the Commission’s proposal likely have on consumers’ purchases of cigarettes and/ or their smoking behavior? Will these changes be likely to affect smoking intensity, brand choice, and/or the decision whether to quit smoking, and if so, how? How else would the proposal likely affect consumers? By direction of the Commission. Donald S. Clark Secretary [FR Doc. E8–16006 Filed 7–11–08: 8:45 am] BILLING CODE 6750–01–S DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Advisory Committee for Injury Prevention and Control (ACIPC) In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC) announces the following subcommittee and committee meetings. Name: Science and Program Review Subcommittee (SPRS). Time and Date: 1 p.m.–2 p.m., July 30, 2008. Place: Meeting will be conducted via telephone conference. 4770 Buford Highway, NE., Building 106, 1st Floor, Room 1C, Atlanta, Georgia 30341–3724. Status: Closed: 1 p.m.–2 p.m., July 30, 2008. Purpose: The Science and Program Review Subcommittee (SPRS) provides advice on the needs, structure, progress and performance of programs of the National Center for Injury Prevention and Control (NCIPC). Matters To Be Discussed: The subcommittee will meet July 30, 2008, to provide a secondary review of, discuss, and evaluate the individual research grant and cooperative agreement applications submitted in response to one Fiscal Year 2008 Requests for Applications (RFAs) E:\FR\FM\14JYN1.SGM 14JYN1

Agencies

FEDERAL TRADE COMMISSION

[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Notices]
[Pages 40350-40352]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16006]


=======================================================================
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FEDERAL TRADE COMMISSION


Proposal to Rescind FTC Guidance Concerning the Current Cigarette 
Test Method

AGENCY: Federal Trade Commission

ACTION: Notice

-----------------------------------------------------------------------

SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is 
proposing to rescind its guidance that it is generally not a violation 
of the FTC Act to make factual statements of the tar and nicotine 
yields of cigarettes when statements of such yields are supported by 
testing conducted pursuant to the Cambridge Filter Method, also 
frequently referred to as ``the FTC Test Method.'' If it withdraws this 
guidance, advertisers should not use terms such as ``per FTC Method'' 
or other phrases that state or imply FTC endorsement or approval of the 
Cambridge Filter Method or other machine-based test methods. The 
Commission seeks public comments on its proposal.

DATES: Comments must be submitted on or before August 12, 2008.

ADDRESSES: Interested parties are invited to submit comments. Comments 
should refer to ``Cigarette Test Method, [P944509]'' to facilitate the 
organization of comments. A comment filed in paper form should include 
this reference both in the text and on the envelope, and should be 
mailed or delivered, with two complete copies, to the following 
address: Federal Trade Commission, Office of the Secretary, Room H-135 
(Annex L), 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. 
Because paper mail in the Washington area and at the Commission is 
subject to delay, please consider submitting your comments in 
electronic form, as described below. However, if the comment contains 
any material for which confidential treatment is requested, it must be 
filed in paper form, and the first page of the document must be clearly 
labeled ``Confidential.''\1\
---------------------------------------------------------------------------

    \1\ Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be 
accompanied by an explicit request for confidential treatment, 
including the factual and legal basis for the request, and must 
identify the specific portions of the comment to be withheld from 
the public record. The request will be granted or denied by the 
Commission's General Counsel, consistent with applicable law and the 
public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------

    Comments filed in electronic form should be submitted by following 
the instructions on the web-based form at (https://
secure.commentworks.com/ftc-CigaretteTestMethod). To ensure that the 
Commission considers an electronic comment, you must file it on the 
web-based form at the (https://secure.commentworks.com/ftc-
CigaretteTestMethod) weblink. If this Notice appears at 
www.regulations.gov, you may also file an electronic comment through 
that web site. The Commission will consider all comments that 
regulations.gov forwards to it.

[[Page 40351]]

    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. All timely and responsive public comments, whether filed 
in paper or electronic form, will be considered by the Commission, and 
will be available to the public on the FTC web site, to the extent 
practicable, at www.ftc.gov. As a matter of discretion, the FTC makes 
every effort to remove home contact information for individuals from 
the public comments it receives before placing those comments on the 
FTC web site. More information, including routine uses permitted by the 
Privacy Act, may be found in the FTC's privacy policy at (https://
www.ftc.gov/ftc/privacy/htm).

FOR FURTHER INFORMATION CONTACT: Requests for additional information 
should be addressed to Rosemary Rosso, Senior Attorney, Division of 
Advertising Practices, Bureau of Consumer Protection, Federal Trade 
Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580, 
(202) 326-2174.

SUPPLEMENTARY INFORMATION: Cigarette yields for tar, nicotine, and 
carbon monoxide are currently measured by the Cambridge Filter Method, 
which has been commonly referred to as ``the FTC Method.'' For some 
time, the Commission has been concerned that the machine-measured 
yields determined by the Cambridge Filter Method may be misleading to 
individual consumers who rely on the yields as indicators of the amount 
of tar, nicotine, and carbon monoxide they actually will get from 
smoking a particular cigarette. In fact, the current yields tend to be 
relatively poor indicators of tar, nicotine, and carbon monoxide 
exposure, and do not provide a good basis for comparison among 
cigarettes. Accordingly, the Commission proposes to withdraw its 
guidance, announced in 1966, indicating that factual statements of tar 
and nicotine yields based on the Cambridge Filter Method generally will 
not violate the FTC Act. If the Commission withdraws this guidance, 
advertisers should not use terms such as ``per FTC Method'' or other 
phrases that state or imply FTC endorsement or approval of the 
Cambridge Filter Method or other machine-based test methods. The 
Commission invites public comment on its proposal.

I. BACKGROUND

    On March 25, 1966, the Commission informed the major cigarette 
manufacturers that factual statements of the tar and nicotine content 
of the mainstream smoke of cigarettes would not be in violation of 
legal provisions administered by the FTC:
 so long as: (1) no collateral representations (other than factual 
statements of tar and nicotine content of cigarettes offered for sale 
to the public) are made, expressly or by implication, as to reduction 
or elimination of health hazards, and (2) the statement of tar and 
nicotine content is supported by adequate records of tests conducted in 
accordance with the Cambridge Filter Method.\2\
---------------------------------------------------------------------------

    \2\ News Release of the Federal Trade Commission (Mar. 25, 1966) 
(reciting the text of identical letters sent to the major cigarette 
manufacturers and the Administrator of The Cigarette Advertising 
Code, Inc.). The Cambridge Filter Method determines the relative 
yields of individual cigarettes by ``smoking'' them in a 
standardized fashion, according to a pre-determined protocol, on a 
machine. The machine is calibrated to take one puff of 2-seconds 
duration and 35 ml. volume every minute, and to smoke the cigarettes 
to a specified length.
---------------------------------------------------------------------------

    Importantly, the 1966 guidance only addresses simple factual 
statements of tar and nicotine yields. It does not apply to other 
conduct or express or implied representations, even if they concern tar 
and nicotine yields. Thus, deceptive claims about tar and nicotine 
yields or health risks are still subject to the full force of the 
Commission's jurisdiction. See, e.g., FTC v. Brown & Williamson Tobacco 
Corp., 778 F. 2d 35 (D.C. Cir. 1985); American Tobacco Co., 119 F.T.C. 
3 (1995). Moreover, the Commission's 1966 guidance does not require 
companies to state the tar and nicotine yields of their cigarettes in 
their advertisements or on product labels. Rather, it sets forth the 
type of substantiation the Commission would deem adequate to support 
statements of tar and nicotine yields if cigarette companies choose to 
make such statements.
    From the outset, cigarette testing under the Cambridge Filter 
Method was intended to produce uniform, standardized data about the tar 
and nicotine yields of mainstream cigarette smoke, not to replicate 
actual human smoking. Because no known test could accurately replicate 
human smoking, the FTC believed that the most important objective was 
to ensure that cigarette companies could present tar and nicotine 
information to the public based on a standardized method that would 
allow comparisons among cigarettes. In 1966, most public health 
officials believed that reducing the amount of ``tar'' in a cigarette 
could reduce a smoker's risk of lung cancer. Therefore, it was thought 
that giving consumers uniform and standardized information about the 
tar and nicotine yields of cigarettes would help smokers make informed 
decisions about the cigarettes they smoked.\3\
---------------------------------------------------------------------------

    \3\ When the test method was adopted, the public health 
community believed that ``[t]he preponderance of scientific 
information strongly suggests that the lower the tar and nicotine 
content of cigarette smoke, the less harmful would be the effect.'' 
U.S. Dept. of Health and Human Services, The Health Consequences of 
Smoking: The Changing Cigarette 1(1981) (quoting a 1966 Public 
Health Service statement).
---------------------------------------------------------------------------

    During the 40 years since the Commission announced this guidance, 
machine-measured tar and nicotine yields of cigarettes have decreased 
dramatically. In 1968, for example, only 2% of all cigarettes had 
machine-measured yields of 15 mg or less. Today, over 85% of all 
cigarettes sold have machine-measured yields of 15 mg or less.
    Despite these dramatic decreases in machine-measured yields, the 
Commission has been concerned for some time that the current test 
method may be misleading to individual consumers who rely on the 
ratings it produces as indicators of the amount of tar and nicotine 
they actually will get from their cigarettes, and who use this 
information as a basis for comparison when choosing which cigarettes 
they smoke. In fact, the current yields tend to be relatively poor 
predictors of tar and nicotine exposure. This is primarily due to 
smoker compensation--i.e., the tendency of smokers of lower-rated 
cigarettes to take bigger, deeper, or more frequent puffs, or to 
otherwise alter their smoking behavior in order to obtain the dosage of 
nicotine they need. Such compensatory behavior in the way people smoke 
and changes in cigarette design that facilitate compensation can have 
significant effects on the amount of tar, nicotine, and carbon monoxide 
one gets from any particular cigarette.
    Concerns about the machine-based Cambridge Filter Method became a 
substantial issue in the 1990s because of changes in modern cigarette 
design and due to a better understanding of the nature and effects of 
compensatory smoking behavior.\4\

[[Page 40352]]

    Today, the consensus of the federal health agencies and the 
scientific community is that machine-based measurements of tar and 
nicotine yields using the Cambridge Filter Method ``do not offer 
smokers meaningful information on the amount of tar and nicotine they 
will receive from a cigarette, or on the relative amounts of tar and 
nicotine exposure they are likely to receive from smoking different 
brands of cigarettes.''\5\
---------------------------------------------------------------------------

    \4\ To address these concerns, in 1994, the Commission, along 
with Congressman Henry Waxman, asked the National Cancer Institute 
(``NCI'') to convene a consensus conference to address cigarette 
testing issues. That conference took place in December 1994. Smoking 
and Tobacco Control Monograph 7: The FTC Cigarette Test Method for 
Determining Tar, Nicotine, and Carbon Monoxide Yields of U.S. 
Cigarettes: Report of the NCI Expert Committee, National Institutes 
of Health, National Cancer Institute (1996).
    In 1997, the Commission published a Federal Register Notice 
proposing certain changes to the test method in accordance with 
recommendations from the NCI consensus conference. 42 Fed. Reg. 
48,158 (Sept. 12, 1997). In response, the cigarette companies argued 
in favor of retaining the existing test method. Public health 
agencies asked the Commission to postpone its proposed modifications 
until a broader review of unresolved scientific issues surrounding 
the system could be addressed.
    In 1998, the Commission responded to the public health agencies' 
concerns by formally requesting that the Department of Health and 
Human Services (``DHHS'') conduct a review of the FTC's cigarette 
test method. Letter from Donald S. Clark, Secretary, Federal Trade 
Commission to the Honorable Donna E. Shalala, Secretary, Department 
of Health and Human Services (Nov. 19, 1998). In particular, the 
Commission asked the DHHS to provide recommendations as to whether 
the testing system should be continued, and, if it should be 
continued, what specific changes should be made in order to correct 
the limitations previously identified by the NCI and other public 
health officials.
    The DHHS provided its initial response to the FTC in an NCI 
Report concerning the public health effects of low tar cigarettes. 
Smoking and Tobacco Control Monograph 13: Risks Associated with 
Smoking Cigarettes with Low Machine-Measured Yields of Tar and 
Nicotine, National Institutes of Health, National Cancer Institute 
(2001) (``Monograph 13''). The national panel of scientific experts 
assembled for the review concluded that the existing scientific 
evidence, including patterns of mortality from smoking-caused 
diseases, does not indicate a benefit to public health from changes 
in cigarette design and manufacturing over the past 50 years. 
Monograph 13 at 10. Monograph 13 also concluded that measurements of 
tar and nicotine as measured by the Cambridge Filter Method do not 
offer meaningful information to consumers. Id.
    When it announced the release of Monograph 13, the NCI noted the 
FTC's previous request, and indicated that it would work with its 
sister science-based agencies at DHHS to determine what changes 
needed to be made to the testing method. National Cancer Institute, 
``Low-Tar Cigarettes: Evidence Does Not Indicate a Benefit to Public 
Health,'' News from the NCI (Nov. 27, 2001). The FTC understands 
that representatives from agencies within DHHS are continuing to 
look into these issues.
    In light of its concerns, the Commission for more than a decade 
has recommended that Congress grant authority over cigarette testing 
to one of the federal government's science-based public health 
agencies. See, e.g., Prepared Statement of the Federal Trade 
Commission Before the Committee on Energy, Commerce, and 
Transportation, United States Senate (Nov. 13, 2007).
    \5\ Testimony of Cathy Backinger, Ph.D., Acting Chief, Tobacco 
Control Research Branch, National Cancer Institute, presented before 
the Committee on Science, Commerce and Transportation, U.S. Senate 
(Nov. 13, 2007). See also Testimony of Jonathan M. Samet, M.D., 
M.S., Professor and Chair, Dept. of Epidemiology, Johns Hopkins 
Bloomberg School of Public Health, presented before the Committee on 
Science, Commerce and Transportation, U.S. Senate (Nov. 13, 2007); 
Smoking and Tobacco Control Monograph 13: Risks Associated with 
Smoking Cigarettes with Low Machine-Measured Yields of Tar and 
Nicotine, National Institutes of Health, National Cancer Institute 
(2001) .
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II. PROPOSAL TO RESCIND COMMISSION GUIDANCE CONCERNING FACTUAL 
STATEMENTS OF TAR AND NICOTINE YIELDS

    The Commission proposes to rescind its guidance that generally 
permits factual statements about the tar and nicotine yields of a 
cigarette when such statements are supported by the Cambridge Filter 
Method.\6\ If it rescinds its guidance, advertisers should not use 
terms such as ``per FTC Method'' or other phrases that state or imply 
FTC endorsement or approval of the Cambridge Filter Method or other 
machine-based test methods.
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    \6\ Cigarette manufacturers have adopted descriptive terms such 
as ``light'' and ``ultra low'' apparently based on ranges of 
machine-measured tar yields. The Commission has not defined those 
terms, nor provided guidance or authorization as to the use of 
descriptors. Because there is no Commission enforcement policy with 
respect to the use of descriptors, this proposal does not address 
the use of descriptors.
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A. Tar and Nicotine Statements Based on Cambridge Test Method

    Given the serious limitations of the existing test method, the 
Commission's rationale for its 1966 guidance generally permitting 
factual tar and nicotine statements based on this methodology no longer 
appears valid. The Commission is concerned that statements based on the 
Cambridge Filter Method may be confusing or misleading to consumers who 
believe they will get proportionately less of the harmful substances 
from cigarette smoke by smoking relatively lower-yield cigarettes than 
from higher-yield cigarettes. Thus, the Commission proposes to rescind 
its guidance that generally permits claims based upon a single 
standardized machine-based test method -- the Cambridge Filter Method. 
Upon withdrawal of this guidance, factual statements about tar and 
nicotine yields would be evaluated the same as any other advertising or 
marketing claims subject to the Commission's jurisdiction: the 
statements could be made as long as they were truthful, non-misleading, 
and adequately substantiated.

B. Claims Stating or Implying FTC Endorsement or Approval

    Additionally, the Commission believes it should not permit claims 
that consumers are likely to interpret as FTC approval, ownership, or 
endorsement of the Cambridge Filter Method. Thus, if the Commission 
withdraws the guidance, advertisers should not use terms such as ``per 
FTC Method'' or other phrases that state or imply FTC approval, 
ownership, or endorsement of the Cambridge Filter Method or other 
machine-based test methods.

III. REQUEST FOR COMMENTS AND RESPONSES TO SPECIFIC QUESTIONS

    The Commission is seeking comment on the following specific 
questions and on any other issues relevant to the policies stated above 
in this Notice:
    1. Should the Commission rescind its guidance that generally 
permits factual statements about tar and nicotine yields when such 
statements are based on a single standardized test method--the 
Cambridge Filter Method?
    2. What effects, if any, would the Commission's proposal likely 
have on consumers' purchases of cigarettes and/or their smoking 
behavior? Will these changes be likely to affect smoking intensity, 
brand choice, and/or the decision whether to quit smoking, and if so, 
how? How else would the proposal likely affect consumers?
    By direction of the Commission.

Donald S. Clark
Secretary
[FR Doc. E8-16006 Filed 7-11-08: 8:45 am]
BILLING CODE 6750-01-S

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