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Price v. Philip Morris12/15/2005
., and American Tobacco Company, respectively, violated the Act's prohibition of unfair methods of competition and unfair and deceptive acts and practices in commerce. In the case of the 1971 order, the FTC filed a complaint in 1969 detailing advertising claims related to American Brands products it found deceptive. American Brands then agreed, in a consent order, without admitting it violated the law as alleged in the complaint, to refrain from advertising that its cigarettes were low or lower in tar by use of the words "low," "lower" or "reduced," or like qualifying terms, unless the statement is accompanied by a clear and conspicuous disclosure of the tar and nicotine content in milligrams in the smoke produced by the advertised cigarette. In re American Brands, Inc.,79 F.T.C. 255 (1971).
It is apparent that the complaint against American Brands was directed at particular advertising used only by that company. The order forbade only American Brands from making the reduced tar claims, and authorized only American Brands to use "low tar" descriptors only if accompanied by conspicuous disclosures of tar and nicotine content. The order cannot reasonably be viewed as directing the use of the descriptors. Indeed, it prohibited their use unless certain conditions were met. No reference whatever is made to the descriptors "light" or "lights," as used by PMUSA. The plain facts, therefore, demonstrate no basis to conclude that "lights" is a like qualifying term to "low in tar." Thus, even if other cigarette marketers read the published consent order, they could not reasonably conclude it specifically authorized any descriptors other than "low tar" or "lower in tar." Nor could they conclude that the agreed resolution of the Commission's claim against American Brands was anything other than the compromise of a disputed claim. It was not, and did not purport to be, a rule or regulation permitting the entire cigarette industry to use these or any other descriptors.
Similarly, the 1995 consent order was entered after the FTC filed a complaint alleging that American Tobacco Company committed unfair and deceptive acts or practices in advertising its Carlton brand of cigarettes. The complaint alleged the advertisements claimed that 10 packs of Carltons contained less tar than one pack of five competing brands. The Commission alleged that, in truth, consumers would not get less tar by smoking 10 packs of Carltons because of the behavior of compensatory smoking. As in the 1971 consent order, American Tobacco entered into an agreement for settlement purposes, without admitting it had violated the law. American Tobacco consented to entry of an order forbidding the disputed representations unless the representations were true as confirmed by competent and reliable scientific evidence. The 1995 order further provided that comparison of the tar and nicotine ratings of American Tobacco's cigarette brands and the ratings of competing brands, with or without representation that respondent's brand is "low," "lower," or "lowest" in either tar or nicotine, would not be deemed violations of the consent order under certain conditions. Specifically, use of the descriptors was not forbidden if American Tobacco did not visually depict more than a single cigarette or pack of its and the comparative brands. In re American Tobacco Co., 119 F.T.C. 3 (1995).
Like the 1971 consent order, the 1995 consent order made no reference whatever to the terms "light" or "lights." The reference to "low tar" in the 1995 order is clearly not a Commission authorization to use that term or similar terms. It only refers to comparisons of brands with or without use of such descriptors. The 1995 consent order merely resolved a disputed claim
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