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Price v. Philip Morris

12/15/2005

cific numerical values expressed in milligrams of tar. Finally, the FTC reiterated its long-standing position that its ratings were intended to be relative, not absolute, even as it posed the question: "should consumers be advised that the cigarettes' actual `tar' delivery depends on how it is smoked?" 48 Fed. Reg. 15,955 (April 13, 1983).


Comments were received not only from those in the cigarette industry, but also from a number of health organizations. The opinions expressed were widely disparate, ranging from a call for development of a testing system that did approximate actual smoking behavior to a suggestion that all such testing be abolished. In response to the idea of a "banding" system, which would categorize cigarettes as high tar, medium tar, low tar, and ultra low tar, several manufacturers noted that this would tend to concentrate brands near the upper level of each range, in contrast to the existing system that gave manufacturers an incentive to create a product that would deliver the lowest possible level of tar. In the absence of a consensus on any means of eliminating or reducing the limitations of the FTC test method, the FTC made no changes to its testing methodology.


The issue of cigarette labeling and advertising rules remained status quo until February 27, 1992, when The Coalition on Smoking OR Health (made up of the American Heart Association, the American Lung Association, and the American Cancer Society), filed a petition with the FTC in which it sought the issuance of an administrative complaint against PMUSA and other tobacco companies pursuant to section 5 of the FTC Act. Specifically, the Coalition alleged that PMUSA's labeling and advertising of one of its low tar products and similar labeling and advertising by other manufacturers were false and misleading because the use of terms such as "low tar," "light," and "ultra low tar" falsely implied that these cigarettes were safer than other products. The Coalition charged that the failure of PMUSA and other manufacturers "to disclose that while the tar yield of their low tar cigarettes may be less than other tobacco-related products, there are numerous known carcinogens in the constituents of these tobacco products, carcinogens which pose a health hazard to the consumer," and that this failure to make such additional disclosures "is a material omission in violation of the Federal Trade Commission Act." Petition of The Coalition on Smoking OR Health before the Federal Trade Commission, par. 25 (February 27, 1992).


The FTC responded to the Coalition's petition by means of a letter from C. Lee Peeler, the Associate Director of the FTC. Peeler's letter stated that after giving careful consideration to the questions raised in the Coalition's petition, the FTC had asked the National Cancer Institute (NCI) to convene a "consensus conference" on this topic. Letter from C. Lee Peeler to Matthew L. Myers, Counsel to Coalition on Smoking OR Health (August 8, 1994).


The National Cancer Institute Conference on the FTC Cigarette Test Method was also brought about by the request of Representative Henry A. Waxman, chairman of the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, who asked the NCI to convene a conference to review the FTC's method of determining the relative tar and nicotine content of cigarettes. At the "direction of the Commission," the FTC chairman wrote to the NCI director, noting the substantial overlap between the issues identified by Chairman Waxman and those the FTC was then examining. The FTC chair asked that the consensus conference "provide a comprehensive review of the existing scientific evidence on issues relating to low-tar and ultra-low ta

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