http://www.tobacco.org/newsfeed/org/ftc.rss Latest top tobacco news headlines en-us http://news.yahoo.com/s/ap/20080709/ap_on_go_ot/ftc_tobacco_4 http://tobacco.org/news/268447.html The Federal Trade Commission said Tuesday that it no longer considers reliable a test for tar and nicotine used for more than 40 years and touted by the tobacco industry in marketing "light" and "low-tar" cigarettes. The FTC said it may rescind its guidance on tar and nicotine yields that is based on that test. The commission said if the guidance is withdrawn, advertisers should no longer use terms suggesting FTC endorsement or approval of any specific test method. . . . "We're reviewing the proposal," said Bill Phelps, spokesman for Altria Group, which owns Philip Morris USA . . . "For years, Big Tobacco has relied on the FTC's flawed testing method to mislead smokers into thinking these cigarettes deliver less tar and nicotine," said Sen. Frank Lautenberg, D-N.J. Lautenberg and Sen. Olympia Snow, R-Maine, introduced a bill that would prevent cigarette companies from using "the FTC method" for measuring tar and nicotine. AP Tue, 08 Jul 2008 04:00:00 GMT http://www.nasdaq.com/aspxcontent/NewsStory.aspx?cpath=20080708%5cACQDJON200807081832DOWJONESDJONLINE000588.htm&&mypage=newsheadlines&title=FTC%20Considers%20End%20To%20Claims%20Made%20For%20Cigarette%20Tar,%20Nicotine http://tobacco.org/news/268436.html The Federal Trade Commission is proposing to do away with a 40-year-old rule that allows tobacco companies to base their claims about the tar and nicotine levels of cigarettes on a testing method approved by the commission. If the commission rescinds its rule, cigarette advertisers will no longer be able to claim that their tar and nicotine ratings are endorsed by the FTC. The commission said Tuesday that the testing method it has endorsed since 1966 may mislead smokers about the amount of tar, nicotine and carbon monoxide they receive from smoking a particular cigarette. Dow Jones via Nasdaq Tue, 08 Jul 2008 04:00:00 GMT http://www.cbsnews.com/stories/2008/07/08/eveningnews/main4242997.shtml http://tobacco.org/news/268435.html (CBS) A government agency did a sharp about face Tuesday, and admitted the test it used to show those cigarettes are low in tar is meaningless. The FTC had endorsed the test for four decades, and during that time, the number of Americans smoking low-tar cigarettes grew from about one and 500,000 to more than 49 million. Now, as CBS News transportation and consumer safety correspondent Nancy Cordes reports, it looks like the low-tar claim has gone up in smoke. . . . The proposal could open the door for the FTC to sue companies that call their products "light" or "low tar," implying they're somehow safer, Cordes reports. Matt Myers with the Campaign for Tobacco-Free Kids says studies show more than half of all smokers still mistakenly believe that switching to cigarettes with slogans like "light and luscious," will reduce their risk of getting sick. . . . "The FTC hasn't banned the term 'light' and 'low tar.' But it has put tobacco companies on notice. If they use those terms or the tar and nicotine numbers they risk lawsuit by the federal government," Myers said. CBS Tue, 08 Jul 2008 04:00:00 GMT http://www.ftc.gov/os/2008/07/P944509cigarette.pdf http://tobacco.org/news/268434.html 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 Federal Trade Commission Tue, 08 Jul 2008 04:00:00 GMT http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/07-08-2008/0004845385&EDATE= http://tobacco.org/news/268430.html The Federal Trade Commission today has taken important action to protect public health by proposing to prohibit tobacco companies from claiming that cigarette tar and nicotine ratings are based on an FTC-approved testing method or that they are endorsed or approved by the FTC. The proposal warns tobacco companies that they risk legal action by the FTC if they use the current tar and nicotine ratings in a way the FTC finds false or misleading. The proposal withdraws an FTC guidance issued in 1966 that permits statements concerning tar and nicotine yields if they are based on a smoking machine test known as the Cambridge Filter Method, commonly called "the FTC method." While today's FTC action is important, it will not by itself end the tobacco industry's deceptive marketing of "light" and "low-tar" cigarettes and underscores the need for Congress to take comprehensive action by enacting pending legislation to grant the U.S. Food and Drug Administration (FDA) regulatory authority over tobacco products. The FTC's action would not explicitly prohibit the tobacco companies from continuing to make statements regarding tar and nicotine levels and would not immediately ban deceptive cigarette descriptions such as "light" or "low-tar." The legislation before Congress would ban terms such as "light," "mild" and "low-tar." PR Newswire Tue, 08 Jul 2008 04:00:00 GMT http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/07-08-2008/0004845452&EDATE= http://tobacco.org/news/268429.html "FTC Test method." The American Legacy Foundation(R) commends the FTC for its proposal to prohibit tobacco companies from claiming it endorses the thoroughly discredited "Cambridge Testing Method" for determining tar and nicotine content in cigarettes. The tobacco companies have used the test and the claim of FTC endorsement to successfully market and sell so-called "light" and "low-tar" cigarettes to millions of smokers under the pretense that they are less dangerous, when in fact, they have known for years that these products are no safer than traditional cigarettes. The fraudulent marketing of light cigarettes was one of the key elements of the U.S. District Court's decision that the tobacco companies had violated federal racketeering laws. . . . Due to the seriousness of the problem, we urge the next step to be taken and the use of light and low tar and similar descriptors be prohibited altogether. PR Newswire Tue, 08 Jul 2008 04:00:00 GMT https://secure.commentworks.com/ftc-CigaretteTestMethod/ http://tobacco.org/news/268428.html The Federal Trade Commission seeks public comment on its proposal to 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, also frequently referred to as “the FTC Test Method.” The Commission is seeking comment on the following specific questions and on any other issues relevant to the policies stated in this Notice: 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? Federal Trade Commission Tue, 08 Jul 2008 04:00:00 GMT http://www.ftc.gov/opa/2008/07/cigarettefyi.shtm http://tobacco.org/news/268427.html The Federal Trade Commission has proposed rescinding guidance issued in 1966 that generally permits statements concerning tar and nicotine yields if they are based on the Cambridge Filter Method, which is sometimes referred to as "the FTC Method." If the guidance is withdrawn, advertisers should no longer use terms suggesting the FTC's endorsement or approval of any specific test method. . . . Today, however, the scientific consensus is that machine-based measurements of tar and nicotine yields based on the Cambridge Filter Method do not provide meaningful information on the amounts of tar and nicotine smokers receive from cigarettes or on the relative amounts of tar and nicotine they are likely to receive from smoking different brands of cigarettes. The primary reason for this is smoker compensation . . . The proposal can be found on the FTC's Web site as a link to this press release. It will be published soon in the Federal Register, and the comment period will end 30 days thereafter. Interested parties are invited to submit comments. . . . Federal Trade Commission Tue, 08 Jul 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuConLawAdminLawScholars.pdf http://tobacco.org/news/267478.html Current constitutional doctrine affords Congress broad authority to preempt state law. If meaningful balance in our federal system is to be preserved, the courts must not overread the preemptive scope of the legislation that Congress enacts. It is for Congress, not the federal courts, to expand the preemptive force of federal regulation into areas of health and safety regulation that have long been subjects of state authority. And courts must be particularly careful not to accord preemptive force to action by federal agencies-which elude both the political and procedural safeguards of federalismexcept when such agencies are either interpreting Congress's statutes or acting within clear delegations of authority to act with the force of law. In this case, these principles require Respondents' state law claims to go forward. ABA Journal Mon, 23 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuMDConsumerRightsCoalition.pdf http://tobacco.org/news/267477.html SUMMARY OF ARGUMENT . . . A plurality of this Court made clear in Cipollone v. Liggett Group, Inc. that a claim of fraud or misrepresentation premised on a cigarette manufacturer’s duty not to deceive consumers is not preempted by the Federal Cigarette Labeling and Advertising Act (“FCLAA”). Cipollone held that while some state law claims alleging deception in the advertising and promotion of cigarettes are preempted by the FCLAA, some claims are not preempted. The critical factor in determining whether a claim is preempted is the predicate duty upon which a claim is based. Causes of action that allege warning neutralization or constitute failure to warn are preempted; those that are based on the cigarette manufacturer’s duty not to deceive are not preempted. Based on the MUTPA’s imposition of a general duty to not deceive on all commercial actors in Maine, Good’s claims are not preempted by the FCLAA. To construe the FCLAA or Cipollone in any other manner would result in immunity for cigarette manufacturers to deceive consumers on matters that concern smoking and health. Given the explicit documentation of PMUSA’s deception in the advertising and promotion of its light and low tar and nicotine cigarettes, allowing Good to pursue her consumer fraud claims will result in an equitable and legally sound outcome. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuTCLCAARPPubJustice.pdf http://tobacco.org/news/267476.html SUMMARY OF ARGUMENT Amici file this brief to emphasize a point that may not stand out in respondents’ more comprehensive treatment of the issues before the Court — namely, that there is no hint in either the Labeling Act or in the FTC’s on-again, off-again actions regarding disclosure of cigarettes’ tar and nicotine content that Congress or the FTC intended to “insulate [cigarette] manufacturers from longstanding rules governing fraud.” Cipollone, 505 U.S. at 528-29. Make no mistake, this case is about fraud. As the United States argued in its civil racketeering action against Philip Morris and other cigarette companies, “marketing of ‘light’ cigarettes is a principal weapon in their attempts to mislead the public regarding the health risks of smoking.” Brief for the United States in United States v. Philip Morris, et al., No. 06-5267, et al., at 146 (D.C. Cir. filed Nov. 19, 2007). The question in this case is whether petitioners are shielded from state anti-fraud litigation because Congress or the FTC preempted fraud claims arising from statements made to deceive smokers that “light” cigarettes are less deadly than regular cigarettes. The answer to that question is “no.” To be sure, this Court in Cipollone held that the Labeling Act preempts state law claims that would require cigarette companies to add or modify the warnings prescribed by Congress. But Cipollone also held that the Labeling Act does not preempt claims arising from false statements made in advertising, press statements, government submissions and other channels of communication, where the claim is based on the duty not to deceive. 505 U.S. at 528, 529 (plurality). Thus, allegations that a cigarette company deliberately misrepresented and concealed material facts in violation of a state anti-fraud statute — the precise allegations at issue here — are not preempted. Id. As the plurality saw it, Congress did not intend the Labeling Act “to insulate cigarette manufacturers from longstanding rules governing fraud.” Id. Such claims are not predicated on a duty “based on smoking and health,” but on a general duty imposed by state law — i.e., the duty not to deceive. Id. at 528-89. Petitioners’ theory should be rejected because it would, contrary to Congress’ intent, effectively insulate cigarette manufacturers from rules governing fraud, no matter how egregious the manufacturers’ false statements or fraudulent concealment. Equally insubstantial is petitioners’ argument that the FTC “authorized” tobacco companies to use “Light” as a product descriptor (Marlboro Lights), and that permitting respondents’ claims to go forward “would impede the FTC’s low-tar policy.” Br. at 46. The signal defect in petitioners’ argument is that the FTC itself disclaims the existence of any authorization or policy, let alone a policy that justifies ousting longstanding state anti-fraud laws. Even Philip Morris has acknowledged elsewhere that there is no such policy. In 2002, Philip Morris filed a petition with the FTC urging the agency “to promulgate rules governing . . . the use of descriptors such as ‘light’ and ‘ultra light.’” See Good, 501 F.3d at 56 n.29. Philip Morris’ petition, of course, would have been superfluous had the FTC previously “authorized” the use of these descriptors. Just as fundamentally, the hodge-podge of FTC actions cited by the Philip Morris as evidence of a federal policy on light cigarettes could not have the sweeping preemptive effect it claims. Because the FTC’s mission of protecting consumers against unfair and deceptive advertising practice overlaps with state law, Congress established regulatory procedures for the FTC to follow when it intends to take preemptive action. See, e.g., American Financial Servs. Ass’n v. FTC, 767 F.2d 957, 989-90 (D.C. Cir. 1985). The FTC did not avail itself of those procedures here, which further confirms the FTC’s position that it did not act to preempt state law. For these reasons as well, petitioners’ implied preemption argument should be rejected. The Labeling 4 Act’s preemption provision states that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” 15 U.S.C. § 1334(b). Those provisions require that packages of cigarettes and their advertisements bear one of a rotating series of warnings about the adverse health effects of smoking. Id. § 1333(a), (c). The Act also provides that no additional “statement relating to smoking and health . . . shall be required on any cigarette package.” Id. § 1334(a). ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCu48States.pdf http://tobacco.org/news/267464.html QUESTIONS PRESENTED 1. Whether the Federal Cigarette Labeling and Advertising Act expressly preempts state-law claims that a cigarette company violated the Maine Unfair Trade Practices Act by falsely representing its “light” cigarettes to the public when the predicate state-law duty of such claims is the duty not to deceive. 2. Whether such claims are impliedly preempted where the FTC has never exercised its rulemaking power to address the conduct at issue nor defined the terms at issue in this dispute. . . . SUMMARY OF ARGUMENT This case presents the questions whether the FCLAA or the actions of the FTC preempt state-law deception claims arising out of Petitioners’ practices with respect to “low tar and nicotine” and “light” cigarettes. Neither the FCLAA nor the actions of the FTC license Petitioners to deceive consumers in violation of state law. Immunizing Petitioners from the consequences of the alleged wrongful conduct is not a result that should be presumed without clear language and intent, neither of which is present here. 1. In Cipollone v. Liggett, 505 U.S. 504 (1992), the Court held that the FCLAA does not preempt claims resting upon false representation of a material fact or concealment of a material fact by tobacco companies where such claims are founded upon a general duty under state law not to deceive. The suit at issue here brings precisely such claims. It seeks economic, not personal injury, damages, under Maine’s general prohibition against any “material representation, omission, act or practice that is likely to mislead consumers acting reasonably under the circumstances.” Me. Rev. Stat. Ann. tit. 5, § 207 (Supp. 2007). Because the lawsuit before the Court is predicated upon a general statutory prohibition against deception (that the manufacturers made false statements and concealed information regarding “light” cigarettes), under Cipollone it is not preempted. To find otherwise would disrupt and do serious harm to the sovereigns’ complementary efforts to protect consumers, which would have adverse implications beyond the “light” cigarettes dispute before the Court here. State law suits pursuant to state unfair practices and consumer protection statutes combating deceptive practices are a critical complement to the administrative and prosecutorial efforts of the FTC. In fact, recognizing that it cannot combat consumer fraud on its own, FTC regulations direct the agency “to assist and cooperate” with state consumer protection efforts. One common outgrowth of that cooperation is that the FTC and the States often target the same wrongdoers, which sometimes results in separate settlements that provide different forms of relief. There is no exception in this complementary regulatory scheme for fraud or deception by cigarette manufacturers. Indeed, the FTC acknowledges the States’ vital part in prohibiting deception by tobacco companies. 2. Petitioners’ arguments that the FTC has somehow impliedly preempted the state-law claims are patently incorrect. Nothing in the text, structure, or regulatory history of the FTC Act or in the actions of the FTC relating to “light” cigarettes supports implied preemption. Petitioners are not claiming that the FTC Act itself imposes requirements on tobacco companies that conflict with state law. Nor could they, given that the FTC Act lacks an express preemption provision and instead contains a broad saving clause protecting state remedies and causes of action. In addition, Congress imposed heightened requirements for FTC rulemaking, and the FTC’s procedural rules require that it explain the impact of any of its rules on state law. And petitioners do not assert that the FTC has promulgated specific rules that preempt state-law actions with respect to “low tar” and “light” cigarettes. Rather, Petitioners’ implied preemption claim is based on their assertion that the FTC has blessed tobacco companies’ “light” cigarette advertisements through a history of less formal actions, such as consent decrees reached with individual companies. But neither the consent decrees nor the other actions relied upon by Petitioners mandated or approved Petitioners’ “light” and “low tar” advertisements. Moreover, in none of those actions did the FTC ever suggest that State consumer protection laws present an obstacle to, or are preempted by, some sort of FTC policy. Indeed, the FTC has eschewed any suggestion that its actions have resolved the issue of tobacco companies’ deceptive practices regarding “low tar” cigarettes. . . . * * * The common purpose of the FTC Act and State unfair trade practices and consumer protection acts, such as Maine’s, is to protect consumers from deceptive practices. The FTC has been most sensitive to this relationship, as have the courts. Finding preemption here would run counter to how the FTC and the States have worked cooperatively together, and would do serious harm to that relationship and to the protections afforded consumers through their efforts. The particular claims of deception here fall squarely within those permitted under Cipollone, and the FTC has not established a cohesive policy impliedly preempting the States with respect to deceitful conduct by tobacco companies regarding “low tar” and “light” cigarettes. For these reasons, the Court should find that the state-law claims before it are not preempted. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCu5Profs.pdf http://tobacco.org/news/267463.html CONCLUSION Philip Morris voluntarily markets Cambridge Light cigarettes and Marlboro Lights as “light” or “lowered in tar and nicotine” without FTC control or direction. Thus, Respondents’ claims are not impliedly preempted. For these reasons, and because Respondents’ claims are not expressly preempted under the FCLAA, as discussed in Respondents’ brief, this Court should affirm the First Circuit’s decision. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuFmrFTCCommissioners.pdf http://tobacco.org/news/267462.html CONCLUSION The FTC’s primary mission as a law enforcement agency is to enforce the FTC Act’s Section 5 prohibition against unfair or deceptive conduct in commerce, rather than to give broad immunity to an industry from state police power. See 15 U.S.C. § 45(a)(2) (“The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations … from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.”); Fleming v. FTC, 670 F.2d 311, 313 (D.C. Cir. 1982) (Commission’s mandate is “to ferret out any unfair competition and unfair or deceptive trade acts or practices in or affecting commerce” ). Nothing in the FTC’s regulatory history suggests an intent to authorize, encourage, or immunize Petitioners’ use of lights descriptors. The judgment of the court of appeals should be affirmed. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuUSA.pdf http://tobacco.org/news/267460.html BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS WILLIAM BLUMENTHAL General Counsel Federal Trade Commission Washington, D.C. 20580 GREGORY G. GARRE Acting Solicitor General Counsel of Record EDWIN S. KNEEDLER Deputy Solicitor General MICHAEL F. HERTZ Deputy Assistant Attorney General DOUGLAS HALLWARD-DRIEMEIER Assistant to the Solicitor General MARK B. STERN ALISA B. KLEIN Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 (I) QUESTION PRESENTED The Federal Trade Commission has authority to prevent “unfair or deceptive acts or practices in or affecting commerce,” 15 U.S.C. 45(a)(2), and the Federal Trade Commission Act expressly provides that its remedies “are in addition to, and not in lieu of, any other remedy or right of action provided by State or Federal law,” 15 U.S.C. 57b(e). The United States will address the following question: Whether guidance statements and consent orders issued by the Federal Trade Commission impliedly preempt a state-law tort claim based on a cigarette manufacturer’s allegedly fraudulent use of the descriptors “Light” and “Lowered Tar and Nicotine” to characterize its cigarettes when the manufacturer allegedly knew that the cigarettes, as smoked by a human smoker, would deliver as much tar and nicotine as so-called “full flavor” cigarettes. . . . 3. Petitioner failed for decades to disclose to the FTC its internal research indicating that, due to compensatory behaviors, smokers receive as much tar from cigarettes with lower Cambridge Method ratings than so-called “full-flavor” cigarettes. After hiding its own research for years, despite the Commission’s requests for information in light of growing concerns about compensation, petitioner now claims that the FTC has known about compensation for years and affirmatively decided that it does not warrant any change in the Cambridge Method. In fact, the absence of definitive action on that question to date reflects only the Commission’s ongoing consideration of the issue. Its inaction (particularly insofar as it is based on petitioner’s own failure to provide information to the FTC) does not constitute even a definitive interpretation of the federal Act, much less one that would bar application of state law. ARGUMENT RESPONDENTS’ CLAIMS ARE NOT IMPLIEDLY PREEMPTED BY THE FEDERAL TRADE COMMISSION’S ACTIONS CONCERNING CIGARETTE ADVERTISING ABA Journal Mon, 23 Jun 2008 04:00:00 GMT