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Price v. Philip Morris12/15/2005
ying terms to describe your product, it [will be] necessary to put the tar and nicotine yield in the ad."
Regarding the FTC investigation into the "channel" filter used by the manufacturer of Barclay cigarettes, Dr. Peterman explained that because the construction of the filter caused the mandatory FTC method to produce unreliable results, there were no accurate yield numbers that the manufacturer could include on the package or in its advertising. Thus, he opined, the FTC "indicated to Barclay that if it wished, it could advertise the product simply as low tar," because the FTC estimated that, if not for the channel filter construction, the yield under the FTC method would have measured in the 3 to 7 milligrams range, well within the 15 milligrams or less definition of a low tar cigarette.
Similarly, when it investigated Carlton cigarettes in 1994, the FTC acted to ban use of "fractions, multiples, or ratios that implied actual intake differences" between Carlton and other brands. Nevertheless, Dr. Peterman stated, the FTC allowed American Brands, the manufacturer of Carltons, to make the claim that Carlton cigarettes were "low" or "the lowest" in tar. He was allowed to testify, over plaintiffs' objection, that the publication of the consent order in this matter was intended by the FTC to give guidance to the rest of the industry.
Dr. Peterman further testified that on September 12, 1997, the FTC caused the publication in the federal register of a request for comments regarding cigarette descriptors. Specifically, "it asked for comments as to whether the descriptors `low tar' and `light,' which covered products between 15 milligrams and less, should be changed or in any way are potentially misleading. And they asked for similar comments with respect to `ultra light' products, which were cigarettes ranked using the FTC test method from 6 and under milligrams of tar." According to Dr. Peterman, that investigation remained open as of the date of his testimony.
PMUSA's expert summarized the FTC's rules regarding the use of "low," "lower," "light," and similar descriptors as follows: use of the terms "low tar" and "lowered tar" is permitted if the cigarette yields 15 milligrams or less of tar under the FTC test method; it is not permissible for a manufacturer to make representations of specific numeric reductions in tar intake by smokers; the term "lights" is deemed by the FTC to be synonymous with the term "low tar"; and, finally, the FTC "intended the industry generally to conform its advertising to these rules." Dr. Peterman specifically relied upon the various consent orders to formulate this opinion.
Questioned further about the terms "light" or "lights" as applied to cigarettes, Dr. Peterman testified that the FTC equates the term "light" with "low tar." He based his opinion on an internal study conducted during his tenure at the FTC which revealed that the two terms were used synonymously to refer to cigarettes with a tar yield of 15 milligrams or less. The FTC considers the term "lights" to be a description of a "low tar" cigarette.
He testified further regarding the FTC investigation that began in 1976 and concluded in 1981 with an FTC staff report to Congress. The staff report stated that the FTC had determined that such descriptors were not false or misleading. As a result, the report did not recommend banning the use of such descriptors. Instead, the report recommended strengthening the required warnings on cigarette packages and rotating several different warnings to keep the message fresh in the minds of consumers. According to Dr. Peterman, the FTC responded to the staff report by recommending changes in the warning program, but
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