FTC Proposes Rescinding Guidance on “Test Method” for Cigarette Tar, Nicotine Yields

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The FTC is seeking comment on a proposal to rescind its 1966 guidance to tobacco companies, which indicated that factual statements of tar and nicotine yields based on the Cambridge Filter Method, also frequently referred to as the “FTC Test Method,” generally will not violate the FTC Act.

If the guidance were to be withdrawn, advertisers would no longer be able to use terms such as “FTC Method” or other phrases that state or imply FTC endorsement or approval of the Cambridge Filter Method or other machine-based test methods.

Misleading Results?

The Commission is considering rescinding the guidance in light of criticism 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.

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, according to the Commission.

Solicitation of Public Comments

Interested parties are invited to submit comments on or before August 12, 2008. Comments should refer to "Cigarette Test Method, [P944509]" 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. Comments can also be filed electronically via the Web-based form at https://secure.commentworks.com/ftc-CigaretteTestMethod.

A news release and a notice to be published in the Federal Register appear at the FTC web site.

Congressional Efforts to Bar Test

On July 8, Senator Frank R. Lautenberg (D-N. J.) issued a statement in response to the FTC announcement.

“Big Tobacco has relied on the FTC’s flawed testing method to mislead smokers into thinking these cigarettes deliver less tar and nicotine,” he said. “In reality, some so-called ‘light’ and ‘low-tar’ cigarettes can actually be more harmful for smokers. Tobacco companies should not be able to hide behind the federal government to deceptively market their deadly products.”

Lautenberg introduced legislation in March 2008 to prohibit the use of the FTC Test Method to market cigarettes as "light" or "low-tar." The proposed “Truth in Cigarette Labeling Act of 2008” (S. 2685), which was reported favorably by the Committee on Commerce, Science, and Transportation on May 15, is similar to a measure introduced by Lautenberg in 2006 that failed to become law.