# Joint Appendix — Watson v. Philip Morris Companies, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0251%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Joint Appendix
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 142

## Text

Supreme Court, US.

FILED
(a FEB 2 3 2007
No-05-1284 OFFICE OF THE CLERK
IN THE

Supreme Court of the United States

LISA WATSON AND LORETTA LAWSON, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED.
Petitioners.
Vv.

PHILIP MORRIS COMPANIES, INC., A CORPORATION:
AND PHILIP MORRIS, INCORPORATED, A CORPORATION,
Respondents.

On Writ of Certiorari
to the United States Court of Appeals
=lal —_ | nena 6la

First Amended Class Action Complaint, Watson, et
al. v. Philip Morris Cos., Inc., et al., Case No.
CV03-4661 (Pulaski Cty., Ark. Cir. Ct. filed May
a acl eaticcnmnnsncnmabeannceasnte 62a

Notice of Removal, Watson, et al. v. Philip Morris
Cos., Inc., et al., No. 4:03-CV-519-GTE (E.D. Ark.
I TTT coals ina daesintnenotennenanennnanmenseenannenenséees 74a

Statutory Provisions Involved .................cccccececeeeeeeeeeeeeeeees 98a

Letter from Supreme Court Clerk regarding ex-
tension request for filing a petition for a writ of
RETIN LE 100a

Letter from Supreme Court Clerk regarding second
extension request for filing a petition for a writ of
ET a 10la

CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

No. CV 2003 004661

LORETTA LAWSON AND LISA WATSON,
Plaintiffs,
Vv.

PHILIP MORRIS COMPANIES, INC., A CORPORATION;
AND PHILIP MORRIS, INCORPORATED, A CORPORATION,
Defendants.

APPEARANCE AND EXECUTION DOCKET

DATE DOCKET ENTRY
4/18/03 Complaint (Civil Cases) 100.00Pd
5/29/03 Amended Complaint
xe KK
7/2/03 _ Notice of Removal: Philip Morris USA Inc.
7/22/04 Notice of Withdrawal of Lead PIf Loretta

Lawson: PIf Loretta Lawson
7/22/04 Motion to Dismiss Loretta Lawson

S Gene Cauley

2

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION

Case No. 4:03-CV-00519-GTE

LISA WATSON AND LORETTA LAWSON, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Plaintiffs,
v.

PHILIP MORRIS COMPANIES, INC., AND

DATE 5

7/2/03 l

7/2/03
7/2/03

7/10/03 2

PHILIP MORRIS, INCORPORATED,

Defendants.

DOCKET PROCEEDINGS

DOCKET ENTRY

NOTICE of Petition for Removal from
Pulaski County Circuit Court; Case
Number: CV03-4661; filing fee of $150.00
pd, receipt #108478 (kjp) (Entered:
07/03/2003)

COMPLAINT (kjp) (Entered: 07/03/2003)

FIRST AMENDED CLASS ACTION
complaint with jury demand [0-1] by
plaintiff, adding Lisa Watson (kjp)
(Entered: 07/03/2003)

ANSWER of Philip Morris USA Inc. to
plaintiffs’ first amended class action com-
plaint with jury demand (rjh) (Entered:
07/11/2003)

8/1/03

8/1/03

8/22/03

9/12/03

11/10/03

11/10/03

11/18/03

11/20/03

10

12

13

3

*e ee *

MOTION by pltfs for remand to Circuit
Court of Pulaski County (rjh) Modified on —
08/04/2003 (Entered: 08/04/2003)

MEMORANDUM OF LAW by piltfs in
support of motion for remand to Circuit
Court of Pulaski County [4-1] (rh)
(Entered: 08/04/2003)

x*eE*

MEMORANDUM IN OPPOSITION TO
PLTFS’ MOTION FOR REMAND by
defts [4-1] (exhb attached) (rh)
(Entered: 08/25/2003)

*e*£ ee €

REPLY memorandum of law in support of
pitfs’ motion to remand to the Circuit
Court of Pulaski County, Arkansas [4-1]
by pltfs (rjh) (Entered: 09/15/2003)

MOTION by plitfs for class certification
(rjh) (Entered: 11/12/2003)

MEMORANDUM OF LAW by pltfs in
support of motion for class certification

{1 1-1] (jh) (Entered: 11/12/2003)

DEFENDANTS’ SUPPLEMENTAL
MEMORANDUM OF ADDITIONAL
Authority regarding plitfs’ motion to re-
mand [4-1] (rjh) (Entered: 11/19/2003)

*e EK *

CLERK’S MINUTES: ORAL ARGU-
MENT before Judge G. Thomas Eisele on
Motion to Remand. Court takes under
advisement. (Court reporter, Elaine
Hinson) (cyw) (Entered: | 1/20/2003)

12/11/03 19

12/12/03 20

12/30/03 21

12/30/03 22

4

ADDENDUM & additional documenta-
tion regarding the voluntary agreement in
support of defts’ memorandum in opposi-
tion to pltfs’ motion for remand (exhibits
#66 «through #71) (rh) (Entered:
12/11/2003)

MEMORANDUM OPINION AND OR-
DER by Judge G. T. Eisele for the reasons
& findings stated herein, pltfs’ motion for
remand to Circuit Court of Pulaski County
[4-1] is denied; pltfs’ request (contained in
Doc #2) for costs & fees is denied; ordered
that the controlling question on this case is .
designated for interlocutory appeal under
1292(b) & pltfs shall have 10 days to file
an applic for interlocutory review with
USCA; upon filing applic, proceedings in
this Ct will be stayed; the date on which
defts’ resp to pltfs’ mot for class cert is
due shall be extended; if stay comes into
effect, defts’ resp to mot for class cert
need not be filed until 14 days after Eighth
Circuit final action upon pltfs’ applic; if
pitfs do not seek interlocutory appeal,
defts’ resp is due no later than 14 days af-
ter expiration of the ten day penod in

_ which pltfs have to file an applic for inter-

locutory review (cc: all counsel) (rh)
(Entered: 12/15/2003)

NOTICE by plaintiffs of filing petition
for interlocutory appeal (dac) (Entered:
12/31/2003)

TRANSCRIPT (| volumes)- of proceed-
ings for the following date: 11/20/03 oral

argument on motion to remand (dac)
(Entered: 12/31/2003)

5

1/5/04 =———DOCKETING LETTER: 8 USCA Number
03-8023; petition for permission to appeal
pursuant to 28USC section 1292(b) has
been filed (dac) (Entered: 01/05/2004)

2/2/04 DOCKETING LETTER: 8 USCA Number
04-1225; petition for permission of Lisa
Watson, et a] to take an interlocutory ap-
peal is granted (dac) (Entered: 02/02/2004)

x*e*K K *

12/5/05 24 MANDATE USCA8 re 1292(b) appeal of
20 Order on Motion for Relief is affirmed
in accordance with the opinion of this
Court (Attachment: # 1 Opinion) (dac)
(Entered: 12/08/2005)

*eKK *

1/18/06 = 36 MOTION to Stay Proceedings Pending
Supreme Court Resolution of Plaintiffs’
Petition for Certiorari 25 by Plaintiffs (rjh)
(Entered: 01/18/2006)

1/18/06 = 37 MEMORANDUM IN SUPPORT filed by
Plaintiffs of their 36 Motion to Stay Pro-
ceedings Pending Supreme Court Resolu-

tion of Plaintiffs’ Petition for Certiorari.
(rjh) (Entered: 01/18/2006)

1/30/06 =38 ORDER IMPOSING STAY that Plain-
tiffs’ Motion 36 is GRANTED and all
proceedings in this case are stayed until
directed otherwise by this Court; parties
are directed to notify the Court upon
resolution by the U. S. Supreme Court of
the pending Petition for Certiorari. Signed
by Judge G. Thomas Eisele on 1/30/06.
(rjh) (Entered: 01/30/2006)

** KK *

1/30/06

4/24/06

4/26/06

1/17/07

1/17/07

1/29/07

39

40

4

42

43

6

CERTIFICATE OF MAILING by the
Clerk re 38 Order Staying Case (rjh)
(Entered: 01/30/2006)

Letter from U. S. Supreme Court, petition
for a writ of certiorari was filed on 4/7/06
and placed on the docket 4/10/06 as
No. 05-1284 (dac) (Modified entry on
4/26/2006 to correct the placed on docket
date to 4/10/06) (bfw). (Entered:
04/26/2006)

NOTICE OF DOCKET CORRECTION:
40 Letter — (modified entry to correct the
placed on docket date to 4/10/06) (bfw)
(Entered: 04/26/2006)

LETTER RESPONSE re 38 Order Staying
Case filed by Philip Morris Companies,
Inc. and Philip Morris Incorporated. (thd)
(Entered: 01/17/2007)

NOTICE of Action on Plaintiffs’ Petition
for Certiorari in Response to 38 Order
Staying Case filed by Loretta Lawson and
Lisa Watson. (thd) (Entered: 01/17/2007)

WRIT of Certiorari is granted by the Su-
preme Court (dac,) (Entered: 01/30/2007)

7

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 04-1225

LISA WATSON AND LORETTA LAWSON, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Plaintifjs-Appellants,
V.

PHILIP MORRIS COMPANIES, INC., A CORPORATION,
AND PHILIP MORRIS, INCORPORATED, A CORPORATION,

DATE

1/28/04

1/28/04

3/22/04

4/19/04

Defendants-Appellees.

DOCKET PROCEEDINGS

DOCKET ENTRY

Civil Case Docketed. Dist. Ct. Office:
Little Rock, Arkansas

CASE TRANSFERRED - Petition for
interlocutory appeal and _ respondent’s
answer.

**e KE *

BRIEF FILED — Brief of Appellant-
Loretta Lawson 25 pages w/addendum 10
copies — w/service 3/19/04. [04-1225]
[1749375]

**e# kK *

BRIEF FILED Brief of Appellee —
Philip Morris. 13,719 words w/addendum

5/4/04

11/15/04

2/25/05

8/25/05

8/25/05

8

— 10 copies — w/service 4/19/04. w/disk
[04-1225] [1758605]

*e *e* *

BRIEF FILED — Reply bref ~ Lisa Wat-
son, Loretta Lawson. 6 pages 10 copies —
w/service 5/3/04. w/diskette [04-1225]
[1763671]

** * * *

ARGUED AND SUBMITTED IN ST.
LOUIS TO JUDGES William J. Riley,
Circuit Judge, John R. Gibson, Circuit
Judge, Raymond W. Gruender, Circuit
Judge. Marcus Neil Bozeman for Appel-
lants Loretta Lawson, Appellants Lisa
Watson. Amy Phillips Rosenthal for Ap-
pellees Philip Morns, Appellees Philip
Morris. Rebuttal by: Marcus Bozeman.
RECORDED. [04-1225]

KERR |

28(j) citation received and filed from
Appellees Philip Morris, Appellees Philip
Morris TO COURT [04-1225] [1872104]

THE COURT: William J. Riley, John.
R. Gibson, Raymond W. Gruender.
OPINION FILED by John R. Gibson,
Authoring Judge CONCUR by Raymond
W. Gruender, PUBLISHED. [04-1225]
[1944316]

JUDGMENT: William J. Riley, John
R. Gibson, Raymond W. Gruender.
The judgment of the lower court is
AFFIRMED in accordance with the opin-
ion. [04-1225] [1944318]

9/22/05

9/29/05

9/29/05

10/3/05

10/7/05

10/13/05

9

**e Ee * *

PETITION for REHEARING with petition
for rehearing en banc. Filed by Appellants
Lisa Watson, Appellants Loretta Lawson,
w/service 9/21/05. TO COURT [04-1225]

MOTION of amicus curiae, Public Citizen
Inc. and AARP, for leave to file brief in
support of appellants’ petition for rehear-
ing. [04-1225] [1958002], TO COURT
w/service 9/28/05

MOTION of amici curiae, Campaign
for Tobacco-Free Kids, American Lung
Association, American Heart Association,
American Cancer Society, and Michael
Pertschuk, for leave to file brief in sup-
port of petition for rehearing en banc.
[04-1225] [1960363], TO COURT
w/service 9/29/05

Clerk letter sent notifying that party has
an Opportunity to respond to petition for
Rehearing with petition for rehearing en
banc filed by Lisa Watson, Loretta Law-
son [1955145-1] [04-1225] Response due
by 10/13/05

MOTION of aplee, Philip Morris, to strike
amici curiae’s reliance on extra-record evi-
dence [04-1225] [1961429], TO COURT
w/service 10/7/05

RESPONSE to petition for Rehearing with
petition for rehearing en banc filed by Lisa
Watson, Loretta Lawson [1955145-1]
[1963028]. Response filed by Philip
Morris. w/service 10/13/05 TO COURT
[04-1225]

10/21/05

10/24/05

11/2/05

11/2/05

10

RESPONSE of amicus curiae, Public
Citizen, Inc., and AARP, in opposition to
appellee motion to strike amici curiae’s
reliance on extra-record evidence filed by
Philip Morris [1961429-1] [04-1225]
[1966230]. TO COURT

RESPONSE of amici curiae, Campaign
for Tobacco-Free Kids, American Lung
Assoc., American Heart Assoc., American
Cancer Society, and Michael Pertschuk in
opposition to appellee motion to strike
amici curiae’s reliance on extra-record evi-
dence filed by Philip Morris [1961429-1]
[04-1225] [1967595]. TO COURT

JUDGE ORDER: granting amicus motion
filed by Public Citizen and AARP for
leave to file brief in support of appellant’s
petition for rehearing [1958002-1] [04-
1225] [1970311], denying amicus motion
filed by Tobacco-Free Kids, American
Lung Assoc., American Heart Assoc.,
American Cancer Society and Michael
Pertschuk for leave to file a brief in sup-
port of petition for rehearing [1960363-1]
filed [04-1225] [1970311] The brief of
amici curiae Public Citizen and AARP is
redacted to excise references to briefs filed
in other cases which were not included in
the record on appeal.

ADDITIONAL PETITION for REHEAR-
ING with petition for rehearing en banc.
Filed by Amici on behalf of Appellant
Public Citizen, Amici on behalf of Appel-
lant AARP, w/service 9/28/05. [1970426],
TO COURT [04-1225]

11/18/05

12/2/05

2/27/06

3/20/06

4/14/06

1/16/07

NI

JUDGE ORDER: denying petition for Re-
hearing with petition for rehearing en banc
[1955145-1] filed by Lisa Watson, Loretta
Lawson. Petition for panel Rehearing is
also denied. [04-1225] Judge Armold and
Judge Bye would grant the petition for re-
hearing en banc. [1976549] — Published
Order.

MANDATE ISSUED [04-1225]

** eK *

Supreme Court notice received extending
time to file petition for writ of certiorari
until March 20, 2006. [04-1225]

Supreme Court notice received extending
time to file petition for writ of certiorari
until 4/17/06. [04-1225]

U.S. Supreme Court notice filed. Petition
for writ of certiorari filed in the Supreme
Court on April 7, 2006. Supreme Ct. Case
No.: 05-1284 [04-1225] [2035669]

SUPREME COURT order filed granting
cert petition. Order filed on 01/12/2007.
[3272613] [04-1225]

12

FEDERAL TRADE COMMISSION
WASHINGTON 25

Bureau of Consultation
DEC 17 1959

Mr. John Vance Hewitt,

Conboy, Hewitt, O’Brien & Boardman,
39 Broadway,

New York 6, N.Y.

Re: ‘Tar and Nicotine Claims
Dear Mr. Hewitt:

To confirm my telephone call of December 15, we wish
to advise that all representations of low or reduced tar or
nicotine, whether by filtration or otherwise, will be construed
as health claims. No hedging statements, such as taste or
sales volume qualifications, will be considered as changing
the character of reduction claims. Our purpose is to eliminate
from cigarette advertising representations which in any way
imply health benefit.

This advice is being disseminated on an industry-wide
basis and prompt, simultaneous compliance is urgently re-
quested. Any advertising which is not promptly brought into
conformance with this request will be forwarded to other Bu-
reaus looking forward to mandatory procedures. As always,
the services of this Bureau are available to cigarette advertis-
ers to confer on proposed advertising.

Please advise this office at the earlicst possible time of
your client's willingness to make necessary changes in the
present advertising of any and all of its brands to comply
with this request.

Very truly yours,

/s/

William H. Brain,
Attorney.

13

FEDERAL TRADE COMMISSION

REPORT TO CONGRESS

Pursuant To The
Federal Cigarette Labeling and Advertising Act

June 30, 1968

The 1967 Cigarette Report noted the possibility that
cigarette advertisers play important roles as social arbiters.
32/ Exposition if not outright espousal of values has become
a prominent feature in current cigarette advertising. Thus,

Be up-to-date: “You're a part of the right now

. everything about True says right now”.
Avoid Alienation: “don’t go out without your
Lark pack ... if you’re ready to show your
pack, the Lark truck will see you” and “you
too, join the crowd that smokes the number
one in ‘good taste’ ... Winston”. Persevere:
“not long ago if you smoked a reduced tar and
nicotine cigarette you were pretty much alone
in the world ... you’re not alone anymore”
(True).

Be aristocratic: with a connoisseur’s eye, Sir
Arthur Smith trades his Rolls Royce for a pack
of Newports, “The smoothest (taste) that’s
ever been bred”. Chesterfield filters are sa-
vored by a wine taster who pronounces their
taste “suave, aristocratic, great finesse”. Be
patriotic (and egalitarian): “afterall, in this
country, it’s what you are, not who you are
that counts” (Century 100s). Be cosmopoli-
tan: “the first filter cigarette to combine rich
American taste with handsome European styl-
ing” (Half and Half).

14

Presumably not all the values depicted represent those of
the advertisers, e.g. “I bold, brawny, Bob Bevans am a flavor
grabber” (L&M). In an L&M commercial taking place
aboard ship, the object is to ‘see how many [L.&M’s] are
grabbed in the next 50 seconds”. In one commercial, the
taste of Kents drives a man to larceny but in another delivers
him from a career of gambling.

Certain commercials seek to associate their product with
a mood. There is the “male whimsy” of Camel advertising,
in which men with wondering souls travel from Kilimanjaro
to Maine, a mile and yet a mile and a half onward, buying
Camels and displaying holes in their soles.

As has been duly noted, cigarette advertising can lend it-
self to flights from reality.

Marlboro Country continues “traditional male heroic”
and moored to the range—‘“you know when one’s missin!
Without countin’, you know ... this 1s Marlboro Country.
Where a good colt is as important today as it was a hundred
years ago”.

There was a time when tribulations befell Salem Coun-
try. Replaced by appeals to urbanites (“you can take Salem
out of the country ...”) and invaded by the hard sell (“that
last cigarette was pretty tasteless—try Salem—taste now—
talk later”), Salem Country when last sighted recommenced a
definite bucolic upbeat, replete with jodhpur clad damsels
with beaux and sorrels.

The Parliament Night People started the year characteris-
tically (“let’s find a new place for dinner, OK? ... Meet the
Night People ... This is their style. They look for atmos-
phere”), but in the end gave way to sardonic Englishmen,
given to having the last word over the mainstream of Parlia-
ment cigarettes.

15

Assuaging Anxiety

For good reason, there is concern that cigarettes are haz-
ardous to health. 33/ Consequently, it is important to adver-
tisers of cigarettes that this concern be allayed. Attempts by
cigarette advertisers to dispel worry or anxiety over the
health consequences of smoking have met with considerable
success. 34/

While recognizing that smoking any cigarette is hazard-
ous, the Surgeon General of the United States has clearly in-
dicated that some cigarettes may be less hazardous than oth-
ers. Thus, he has stated that “in recent years, the harmful ef-
fects of tar and nicotine in cigarette smoke have been the sub-
ject of intensive scientific research here and abroad.” There is
evidence that tar . . . is many times more potent in its cancer-
producing properties than any of the substances isolated from
it.” 35/ A committee appointed by the Surgeon General has
concluded that “the preponderance of scientific evidence
strongly suggests that the lower the ‘tar’ and nicotine content
of cigarette smokc, the less harmful are the effects.” 36/

Based upon the proposition that lower yield cigarettes
present a lessened hazard to the American public, the Com-
mission has acted within the past year to (1) augment infor-
mation available to the public on the tar and nicotine content
of cigarettes and (2) prompt cigarette manufacturers to de-
velop less hazardous cigarettes.

On May 15, 1967, Chairman Paul Rand Dixon an-
nounced the activation of a Commission cigarette testing
laboratory. Testing procedures to be utilized by the labora-
tory were announced on August |, 1967. On October 26,
1967, the Commission issued a policy statement which indi-
cated that as a general rule the Commission would not chal-
lenge statements or representations of or relating to tar and
nicotine content or cigarettes “where they are shown to be
accurately and fully substantiated by tests conducted in ac-

16

cordance with the standardized testing methods and proce-
dures used by the Federal Trade Commission”.

Shortly thereafter, on November 22, 1967, the Commis-
sion published test results on the tar and nicotine yields of 59
varieties of cigarettes—these included varieties having the
greatest sales at the time and those whose labeling or adver-
tising contained tar or nicotine yield statements. Only two
varieties made yield claims lower than those published by the
Commission and in both instances, the advertisers voluntarily
corrected the situation. Unofficial information has been re-
ceived that the November 22, 1967 test results were carried
on the front pages of three out of four of all major daily
newspapers in the United States. Many hundreds of thou-
sands of copies were reproduced and distributed by the Pub-
lic Health Service, the American Cancer Society and other
health agencies.

As recently as mid-June of 1968 the Commission re-
leased test results of the tar and nicotine yields of virtually all
brands marketed domestically, 127 in number. Advertisers
now have available for use in their advertising, information
concerning the tar and nicotine levels of their and competi-
tive brands. Their use of this information must be factual,
fair and not misleading. The ORC-ACS Survey indicated
that 62% of all interviewees think that the amount of tar and
nicotine should appear both on the cigarette pack and in ad-
vertising; an additional 14% think that such information
should appear on the pack only. 37/ Since the establishment
of the Commission’s laboratory, cigarette manufacturers have
changed thirty-eight 38/ different varieties of cigarettes with
respect to filters, filter overwraps, blends, etc., in an effort to
lower tar and nicotine yields. We know of no attempts to
produce cigarettes with higher yields.

An analysis of sales data provided by cigarette manufac-
turers indicates that sales of comparatively low yield ciga-
rettes, e.g., for purposes of this report only, those having 15
milligrams (mg.) of tar or less, have not been extensive thus

17

far. Three categories of cigarettes, classified according to tar
yields, divided the market in 1967 as follows: 15 mg. and
under ~— 2%; 16 - 21 mg. — 59%; 22 mg. and over — 39%.

In promoting the above-noted 2% of the market, ciga-
rette advertisers spent 5.5% of their total 1967 advertising
budget. During the first two months of 1968, cigarettes with
tar content of 15 mg. and under accounted for 2.4% of the
market and 7.8% of total advertising expenditures. Perhaps
the trend noted in connection with filter and 100 millimeter
cigarettes has commenced with respect to low yield ciga-
rettes—-manufacturers are spending disproportionately large
amounts to promote them with the result that their market
share increases each year.

There is every reason to believe that the promotion of
low tar and nicotine yield cigarettes can be profitable. As
indicated, the Commission released tar and nicotine figures
for 59 varieties of cigarettes in late November 1967. These
figures indicated that regular and king-sized filter Marvels
were lowest in tar and nicotine of the 59. They also indicated
that Cascade was lowest among menthol cigarettes. The
sales of these three brands rose respectively 382%, 570% and
200% in December 1967, despite the fact that overall ciga-
rette sales declined in December (from November) in 1967,
1966 and 1965. Furthermore, both True and Carlton ciga-
rettes, two well advertised low yield cigarettes, each in-
creased sales 20% that December following publication of
Commission figures.

The only brands making tar or nicotine content disclo-
sures in advertising or labeling at the time of the 1967 Ciga-
rette Report were Carlton, True, Marvels, Cascade, King
Sano, and Duke of Durham filters. 39/ To these may now be
added Domino menthols, Montclair, Silva Thins, and Tryon
filters.

As noted in the 1967 Cigarette Report, rather than alert
smokers to less hazardous low yield cigarettes, advertisers

18

sought for the most part to allay smoker anxiety by proclaim-
ing the wonders of their filters. 40/ The PHS Survey revealed
a plausible reason for this—the belief is widely held that fil-
ter cigarettes are less hazardous to health than nonfilter ciga-
rettes. 41/ -

Now that the Commission has tested nearly every. ciga-
rette on the market, an evaluation of this belief is possible.
Concerning the 127 varieties tested, the lowest 34 in tar con-
tent are all filter cigarettes and the highest six are all nonfilter
cigarettes. However, the nonfilter cigarette ranking 35th
lowest in tar is lower in tar than no fewer than 62 other filter
cigarettes. Furthermore, it would appear that 95 millimeter,
filter Pall Mall spews slightly more tar than king size, nonfil-
ter Pall Mall and that regular size, nonfilter Chesterfield
spews slightly less tar than 101 millimeter, filter Chester-
fields. 42/ Obviously, the consumer cannot rely on the filter
alone.

Nevertheless, the implied safety of a filter (“the mere
addition of a filter to a cigarette is, in and of itself, some kind
of claim or assurance relating to the health aspects of smok-
ing” 43/) and the miraculous way in which it delivers taste
continue to be the advertisers’ principal palliative against
smoker misgivings. Examples include:

“the flavor of the world’s finest tobaccos
through the Kent filter”; “the charcoal gran-
ules make the taste better” (Lark); “white filter
flavor” (L&M); “a filter cigarette blended with
natural flavor fresheners” (Viceroy); “Kool’s
white filter... menthol through a filter.”

Some filters are tasty enough to do without tobacco (“You
don’t even have to light it to like it”-—Lucky Strike 100s).

The implication that “filter” equals “comparative safety”
can be made more express through depictions of the compli-
cated inner workings of the filter (True, Tempo, Lark, Lucky
Strike 100s) or by euphemisms such as “mild”, “soft”, e.g.

19

“flavor comes through filtered mild” and “charcoal to soften
the taste” (Lucky Strike 100s), “the charcoal filter smoothes
the taste” (Tareyton), “air cooled filter, a great light taste”
(Carlton).

The Pall Mall advertisements, “Look! it’s extra long at
both ends. More fine tobacco at one end. And an extra long
filter at the other. So it travels the smoke further for greater
mildness” and “filter[s] further for a milder smoke”, combine
several approaches. The implicit assurance of the word “fil-
ter” is there, made more exp/icit, by “an extra long filter” and
through the euphemism “travels the smoke further for greater
mildness” (emphasis added). The further thought is projected
that such euphemistic mildness comes from the longer filter
and more tobacco, i.c. “extra long at both ends .. . filter{s]
further for greater mildness”.

20

News Release
Federal Trade Commission
Washington, D.C. 20580
OFFICE OF INFORMATION 393-6800 Ext. 197
For RELEASE: IMMEDIATE, Friday, March 25, 1966

The Federal Trade Commission today announced that it
has sent identical letters to each of the nation’s major ciga-
rette manufacturers and to Mr. Robert B. Meyner, Adminis-
trator of The Cigarette Advertising Code, Inc., in regard to
factual statements of tar and nicotine content on labels and in
advertising of cigarettes. The text of the letter is as follows:

Gent!emen:

The Cigarette Advertising Guides
promulgated by the Commission in September
1955 provided that no representation should
be made that “any brand of cigarette or the
smoke therefrom is low in nicotine or tars
*** when it has not been established by
competent scientific proof applicable at the
time of dissemination that the claim is true,
and if true, that such difference or differences
are significant.” On the basis of the facts now
available to it, the Commission has deter-
mined that a factual statement of the tar and
nicotine content (expressed in milligrams) of
the mainstream smoke from a cigarette would
not be in violation of such Guides, or of any of
the provisions of law administered by the
Commission so long as (1) no collateral repre-
sentations (other than factual statements of tar
and nicotine contents of cigarettes offered for
sale to the public) are madc, expressly or by
implication, as to reduction or elimination of
health hazards, and (2) the statement of tar and

21
nicotine content is supported by adequate re-
cords of tests conducted in accordance with
the Cambridge Filter Method, as described in
ar. article entitled “Determination of Particu-
late Matter and Alkaloids (as Nicotine) in
Cigarette Smoke,” by C.L. Ogg, which ap-
peared in the Journal of the Association of Of-
ficial Agricultural Chemists, Vol. 47, No. 2,
1964. It 1s the Commission’s position that it is
in the public interest to promote the dissemi-
nation of truthful information concerning ciga-
rettes which may be material and desired by
the consuming public.

By direction of the Commission.

Joseph W. Shea,
Secretary.

22

REVIEWING PROGRESS MADE TOWARD
THE DEVELOPMENT AND MARKETING OF A
LESS HAZARDOUS CIGARETTE

HEARINGS
BEFORE THE
CONSUMER SUBCOMMITTEE
OF THE
COMMITTEE ON COMMERCE
UNITED STATES SENATE
NINETIETH CONGRESS
FIRST SESSION

August 23, 24, and 25, 1967

Serial No. 90-52

* * *

THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE
Washington, January 10, 1967

HON. WARREN G. MAGNUSON,
U.S. Senate, Washington, D.C.

DEAR SENATOR MAGNUSON: In response to your letter
of November 9, 1964, | am pleased to forward to you a copy
of a technical report by the Public Health Service reviewing
the significance of the “tar” and nicotine content of cigarette
smoke. This report was in the process of preparation at the
time of my last letter to you in July and | regret this long de-
lay in putting it in your hands. The report reflects the general
considerations which went into the thinking of the committee
whose recommendations to the Surgeon General were trans-
mitted to you earlier.

23

In our opinion, requiring the identification of “tar” and
nicotine levels on packages and in advertising, as you have
proposed, would be an important step and would result in the
progressive reduction of “tar” and nicotine levels because of
public demand.

On the basis of available evidence regarding the effects
of individual constituents of cigarette smoke, their relation-
ship to the overall hazards of cigarette smoking, and the rela-
tive precision regarding measurement techniques, the identi-
fication of “tar” and nicotine levels can provide valuable in-
formation on overall dosage. In considering any labeling re-
quirement, it would be important that such requirement allow
for the addition of other components of cigarette smoke as
they are identified as a hazard and when agreement is reached
On appropriate measurements to be used.

I strongly support your view that these steps reiating to
the measurement and labeling of “tar” and nicotine in ciga-
rette smoke are only part of our overall] approach to this prob-
lem. As you have pointed out, until hazardous substances
can be removed from cigarette smoke, the only effective
means available to eliminate the health hazards associated
with smoking is an educational program designed to inform
people of the hazard and encourage people to stop or not to
start smoking.

| hope that this letter and the attached technical report
will prove helpful.

Sincerely,

JOHN W. CLAIBORNE,
Secretary.

24

“Public Health Service Technical Report on ‘Tar’
and Nicotine

“It 1s clear that the overall risk associated with cigarette
smoking increases as the average number of cigarettes con-
sumed per day increases (1). In the studies which have re-
ported other measures of exposure such as pack years, degree
of inhalation, and maximum level of cigarette consumption,
the same type of relationship holds.

“Hammond (2) has shown that users of high ‘tar’ and
nicotine cigarettes report significantly more of the symptoms
that are characteristic of cigarette smokers in general. Grati-
ani et al (3) have shown that appreciable variations in ‘tar’
yield of cigarettes may be achieved by changing the pattern
of smoking with maximum yield being obtained when puff-
ing is concentrated toward the end of the cigarettes. The ef-
fect of tobacco smoke condensate on the mouse skin has been
shown by numerous investigators to be dependent on the
dose of tar applied to the skin.

“These findings support the existence of a dose-response
relationship between exposure to cigarette smoke and the
risks most clearly associated with cigarette smoking—lung
cancer, chronic obstructive pulmonary diseases, and cardio-
vascular diseases. Among the factors which may enter into
the total exposure are numbers of cigarettes consumed, length
of cigarette consumed, pattern of smoking (relative concen-
tration of puffing at beginning, middle, or end of cigarette),
frequency and depth of inhalation, and concentration of to-
bacco smoke which enters the smoker’s mouth. The concen-
tration of particulate matter in the mainstream of smoke is
reflected in the measurement of the so-called ‘tars’ in tobacco
smoke.

“The epidemiologic evidence on the effect of cigarette
smoking on health is based largely on numbers of cigarettes
consumed daily as the measure of exposure. That the degree
of risk correlates as high as it does with numbers of cigarettes

25

probably reflect the fact that the various measures of expo-
sure noted above tend to be positively later correlated. Those
individuals who smoke many cigarettes, and also, who inhale
frequently and deeply, take more puffs, use higher ‘tar’ and
nicotine content cigarettes, and so on.

“Wynder and Hoffmann (4) have shown that the tumori-
genicity of cigarette smoke can be reduced by alternation in
the cigarette which reduces the ‘tar’ and nicotine content.
They use the term ‘indicator’ for ‘tar’ and nicotine content or
other measures which reflect this type of gross relationship
lacking the identification of specific agents which are respon-
sible for the effect. Bock, Mourn, and Clark (5) have inde-
pendently shown a similar variation in carcinogenic activity
of tobacco ‘tar’ obtained from different types of cigarettes.

“The ad-hoc group of scientists which reviewed and dis-
cussed these data recently at the invitation of the Surgeon
General concluded that:

“|. The preponderance of scientific evidence strongly
suggests that the lower the ‘tar’ and nicotine content of ciga-
rette smoke, the less harmful would be the effect.

“2. We recommend to the Surgeon General that action
be encouraged which will result in the progressive reduction
of the ‘tar’ and nicotine content of cigarette smoke.

“This judgment was arrived at with full recognition of
the following:

“1. It is possible for a cigarette to be altered in such a
way that its ‘tar’ and nicotine content is reduced but certain
other harmful effects, for example, the effect of the gaseous
phase may be increased. Although this is a theoretical possi-
bility, there is no evidence that this has occurred to any seri-
ous degree.

“2. The potential benefit to the individual consumer who
might shift to a Jower tar and nicotine cigarette would be ne-
gated if this shift were accompanied by an increase in the

26

number of cigarettes consumed, or in the length of each ciga-
rette used. There is evidence that, by-and-large, this does not
occur, that the shift to low ‘tar’ and nicotine cigarettes tends
to be accompanied by the same level of consumption or an
even lower level rather than by an increased consumption
(0.7).

“3. Promotion of a low ‘tar’ and nicotine cigarette might
lull the consumer into believing that he could smoke this kind
of cigarette without any accompanying risk. The presence of
the warning label] on the package, control over the advertising
statements which are permitted, and the continuing educa-
tional efforts of public health agencies on this subject should
minimize this likelihood.”

27

FEDERAL REGISTER
VOLUME 31 NUMBER 215
Friday, November 4, 1966 Washington, D.C.
Pages 14105-14291

* * *

FEDERAL TRADE COMMISSION
CIGARETTES AND RELATED MATTERS

Methods To Be Employed in Determining Tar and Nico-
tine Content; Notice of Public Hearing

Notice 1s hereby given that the Federal Trade Commis-
sion will hold a public hearing before the full Commission on
November 30, 1968, commencing at 10 a.m., e.s.t. in Room
532, Federal Trade Commission Building, Sixth Street and
Pennsylvania Avenue NW., Washington, D.C., at which time
and place all interested and affected parties may verbally pre-
sent data, views, arguments and suggestions relevant to the
- manner of testing cigarettes to determine their tar and_nico-
tine content and the reporting of the results of such tests.
Written data, views, arguments and suggestions will also be
made a part of the public record and considered if mailed to
Mr. Joseph W. Shea, Secretary, Federal Trade Commission,
Sixth Street and Pennsylvania Avenue N.W., Washington,
D.C. 20580, on or before November 30, 1968. Persons sub-
mitting written presentations exceeding two pages should file
12 copies thereof, and any person desiring to make oral pres-
entation at the hearing on November 30, 1968, should notify
the Secretary of the Commission to this effect, with an esti-

mate of the time required for his presentation, not later than
November 21, 1968.

The purpose of this hearing is to establish a public record
to assist the Commission in.determining what action, if any
should be taken in the public interest with respect to modify-
ing or amplifying the Cambridge Filter Method, as described

28

in an article entitled “Determination of Particulate Matter and
Alkaloids (as Nicotine) in Cigarette Smoke,” by C.L. Ogg,
which appeared in the Journal of the Association of Official
Agricultural Chemists, Vol. 47, No. 2, 1964, to determine tar
and nicotine yields of cigarette smoke, and the form in which
such results should be expressed in the public interest. This
method was specified by the Commission on March 25,
1966, as that to be used to support any factual statements of
tar and nicotine content of the mainstream smoke of ciga-
rettes. The public record to be established will assist the
Commission in reaching informed determinations with re-
spect to the manner in which its laboratory will be operated,
and related questions.

The Commission solicits information and suggestions on
the following questions:

1. Whether the butt-length to which test cigarettes are
smoked should be 23 mm for nonfilter cigarettes, and the
length of the filter and overwrap plus 3 mm for filter ciga-
rettes if such combined length is more than 23 mm;

2. Whether the total particulate matter should be reported
on a “wet” or “dry” basis, and if the latter whether the gas
chromatography method published by C.H. Sloan and B.J.
Sublett, “Moisture Content of the Particulate Phase of Smoke
from Filter and Nonfilter Cigarettes.” in Tobacco Science 9,
page 70, 1965, as modified by F.J. Schultz and A.W. Spears
report “Determination of Moisture in Total Particulate Mat-
ter” published in Tobacco Vol. 162, No. 24, page 32, dated
17 June 1966, should be employed to determine the moisture
content;

3. Whether test results should be reported in terms of
whole numbers or whole numbers and fractions of milli-
grams, or a range, or a figure accompanied by the standard
deviation with an explanation; and

4. The number of cigarettes to be smoked necessary to
produce reliable results, and the size and geographic distribu-

29

tion of the sample from which such test cigarettes are se-
lected.

Interested persons are invited to submit any information
pertinent to these questions or other aspects of the subject.

The data, views, or arguments presented orally or in
writing will be available for examination by interested parties
at the Federal Trade Commission, Washington, D.C.

Issued: November 3, 1966
By the Commission

[SEAL] JOSEPH W. SHEA
Secretary.

30

Before the
Federal Trade Commission

CIGARETTES AND RELATED MATTERS

~

Methods To Be Employed in Determining
Tar and Nicotine Content

SUPPLEMENTARY OBSERVATIONS FOLLOWING
NOVEMBER 30, 1966 HEARING

The written submissions and oral discussions at the No-
vember 30, 1966 Hearing, indicate that many of those con-
cerned had wholly different approaches, technical under-
standing, working knowledge of the actual use or inherent
limitations or required laboratory equipment, or appreciation
of the scientific predicates underlying the Cambridge Filter
Method whose modification or amplification was being con- -
sidered.

This Memorandum endeavors in simple form to expose
and to clarify the complex technological procedures involved
in testing the amount of particulate matter (PM) and nicotine
in cigarette smoke. That background must be appreciated by
anyone responsible for resolving the various points relating to
testing which the Commission has under consideration.

What Is Being Measured?

Whether you call it “tar” or particulate matter (PM), the
so-called Ogg Method, cmploying the Cambridge filter, sceks
to determine the non-vapor material in cigarette s as
generated in the automatic standardized smoking of a ciga-
rette by a machine, not by a human being, according to nec-
essary prescribed standard technical directions.

31

The weight of the material so drawr in the machine
smoking of the cigarette is calculated by prescribed proce-
dures, and the weight of the nicotine in that material is de-
termined.

The amounts of PM and nicotine (per filter pad, with
each pad collecting the smoke of five cigarettes, as described
later), being measured either absolutely or relatively, are min-
iscule. They are weight determined from each filter pad to
the nearest 0.1 milligram.

A gram is about one twenty-eighth of an ounce. A mil-
ligram is one-thousandth of a gram. Put another way, a mil-
ligram is 1/28,000 of an ounce. The weighing of the filter
pad, which collects PM from five machine-smoked ciga-
rettes, to 0.1 mulligram, 1s a determination to one ten-
thousandth of a gram.

To visualize the quantities and the possible weight dif-
ferences sought to be determined, one might consider a milli-
gram to be equivalent to a barely visible particle of sugar
which when dissolved in a quart of water—could not be
tasted. A like comparison of a tenth of a milligram to an
ounce would be to compare the apparent size of a period sign
on a page of the Federal Register to the entire page.

What Is Not Being Measured?

The Ogg Method in fact does not, and cannot, measure
either all of the particulate matter (PM), or the total nicotine,
from any cigarette. It measures only the PM and nicotine in
the volume of smoke puffed through a machine on the stan-
dardized method. It does not measure the PM or nicotine in
all of the smoke that any cigarette might produce when to-
tally smoked under any and all conditions.

The Ogg Method does not measure the volume of
smoke-—or the PM or nicotine in the volume of smoke—that
any human being will draw from smoking any particular

~

32

cigarette. Each smoking characteristic is leveled or averaged
out by the standard method.

No two human smokers smoke in the same way. No in-
dividual smoker always smokes in the same fashion. The
speed at which one smokes varies both among smokers, and
usually also varies with the same individual under different
circumstances even within the same day. Some take long
puffs (or draws); some take short puffs. That variation af-
fects the PM quantity in the smoke generated.

Even with the same type of cigarette, individual smokers
take a different number of puffs per cigarette depending upon
the circumstances. When concentrating, or talking, the num-
ber of puffs is usually less. When listening, or required to
listen, to another person talking, the number of puffs per
cigarette, as well as the duration of cach puff, usually in-
creases. Smoking rates while reading a book may differ from
smoking rates while viewing a television program. The
number of puffs and puff duration (as well as butt length)
will vary according to emotional state. Some smokers cus-
tomarily put their cigarette down in an ashtray where they
burn between puffs; other smokers constantly hold cigarettes
in their mouths; others hold them between their fingers.

As to butt length to which individuals smoke various
types of cigarettes, as will be seen the average is over 30 mi-
limeters, except where the filter prevents smoking down to
that length, or where the rapidity of smoking generates a high
heat zone or a change in taste, and causes the smoker to dis-
card the cigarette. But, here again. there are no constants,
and there is no relationship between standardized machine
smoking of cigarettes and the volume of smoke which any
smoker will get in smoking down to any selected butt length.
About all that is known is that tobacco itself has some filter
effect.

The Ogg Method does not and cannot measure these
many variations in human smoking habits. It does not meas--

33

ure PM or nicotine in the smoke generated while the cigarette
is not being puffed. It does not measure all of the PM or
nicotine in any cigarette, but only that in the smoke drawn in

the standardized machine smoking according to the pre-
scribed method.

These basic standardizations are well understood by all
technologists in talking about any testing method.

Standardization Required And
Embodied In The Ogg Method

Because of the minute quantities of PM present in smoke
and the difficulties in impounding it on a filter pad and meas-
uring these minute ievels, the Ogg Method, or indeed any
other scientific testing method, must attempt to reduce all
possible variations that will substantially affect the determi-
nations of PM and nicotine.

No standardizatron of technique can eliminate human er-
ror or ineptitude. No method designed can remedy the limi-
tations in a testing method derived from the available equip-
ment, the precision possible in its use, or its inability to se-
cure reproducible results.

What the Ogg Method does standardize are a few of the
factors—puff frequency, puff duration, and the puff volume
through the filter pad—that affect the burning rate and the
amount of PM and nicotine deposited.

Puff Frequency. One puff each 60 seconds, = one sec-
ond is essential to the method. Two factors flow from that
clement of standardization. The first is that whatever smok-
ing machine is uscd must precisely meet this basic time re-
quirement. The second ts a reminder that this puff frequency
does not reflect widely varying smoking habits, and is an av-
erage.

Puff Duration. The puff is drawn for two seconds, again
within a narrow tolerance of two-tenths of a second either
way. If any results are to be accurate or remotely compara-

34

ble, this duration factor must be constantly watched, timed
with accurate devices, and rigidly maintained by the machine.

Puff Volume. The Ogg Method standardizes this volume
at 35 milliliters. Again, the permitted tolerance is = 0.5 milli-
liters. Obviously, puff volume is a basic controlling factor in
the determination. There are various smoking machines that
control puff volume, within the duration of each puff, in dif-
ferent ways. Once again, constant careful recalibration is es-
sential. Once again, it must be remembered that the standard-
ized puff volume may bear no direct relation to how any par-
_ ticular individual smokes, and is essentially an average.

Tne point to be remembered is that all of the difficulties
and disclosed limitations in the Ogg Method exist even when
these factors are carefully standardized. The Ogg Method of
machine smoking was evolved on uniform specially prepared
cigarettes. Its published description tells nothing about its
use in the comparative testing of cigarettes of different
brands which have varying construction, burning rate, and
other variations. The Method as published discloses its vari-
ability, e.g., its limits of reproducibility, only on weight-
selected cigarettes. (Compare Table | in the published Ogg
Method.) It tells nothing about smoke volume or PM or nico-
tine in market-derived brands of cigarettes. For example, in
smoking the same brand of conditioned cigarettes, under
carefully controlled conditions with experienced technicians,
the number of puffs in smoking a cigarette to a specified butt
length can vary from seven to ten puffs in a single run of a
machine.

How Does A Smoking Machine
Collect PM And Nicotine?

For non-scientists to comprehend how a smoking ma-
chine works and the difficulties in any method employing
smoking machines, there is no substitute for seeing smoking
machines in operation in the hands of trained technicians.
Nevertheless, the published Ogg Mehod indicates—and even

35

cursory viewing would confirm—~a few of the key unavoid-
able operating problems. These can be easily visualized by a
brief description of how the job must be done.

First, 1t is essential to equilibrate or condition the sam-
ples of each brand of cigarettes being tested because humid-
ity conditions at the various pickup points vary so widely.
The relative humidity encountered in New Orleans may be 90
percent, whereas in Phoenix it may be only 20 percent. In
placing cigarettes on the conditioning screens, care must be
exercised not to damage or fragment or spill tobacco from,
the individual cigarettes.

Each filter pad is assembled in a plastic filter holder, the
parts of which must be tightly screwed together, to be leak
proof. .

To one side there is next attached a piece of rubber
membrane with a hole cut in it. This rubber membrane must
be tightly locked on with a solid rubber ring.

Each assembled filter unit must then be separately tested
for leaks.

Each filter assembly must next be conditioned in the cor-
rect humidity and temperature for a sufficient period.

Each unit assembly is then separately weighed and re-
corded to the nearest one-tenth of a milligram.

The asseinbled filter units are then placed in the smoking
machine ports.

Some of the precise controls in placement and smoking
may be indicated. The failure to exercise these will markedly
affect the results.

To begin with, the smoking machine room _must be pre-
cisely air conditioned for temperature and humidity control.
Automatic controls for temperature and humidity must in turn
be regularly verified with manual temperature and humidity
checking devices.

36

The air flow in the machine, both at the top vents and at
the smoking ports, must be checked each day with precise
instruments because such air flow directly affects the burning
rate of the cigarette between puffs and can materially affect
the quantity of PM deposited. Absent proper venting, the
machine and the room would accumulate smoke and distort
the results.

Cardinally, the timing controls must be checked regu-
larly, and on some type of machines even daily.

The entire machine assembly must be regularly checked
to insure that it is leak proof throughout.

Even where the smoking machines are fully calibrated,
the human factors in their operation are highly variable.
When inserting the cigarette in the filter holder, the ends
should not be bruised or broken. Where cigarettes are elec-
-trically ignited, the lighters should not be permitted to push
the cigarettes against the filter pad. As Ogg notes, “Take
care that butt end does not come in contact with [the Cam-
bridge} filter disc.”

Unless automatic cut-off devices are included in the
smoking machine, the problem of watching and remembering
“unders” and “overs” of butt length introduces large factors
of human error. An operator has to watch, stop, and clear a
number of ports within brief periods. Where automatic cut-
offs are provided, carelessness in adjusting the burning
threads or the springs can likewise affect the results.

For PM weighing and water and nicotine determination,
other human manipulations are necessary which must be per-
formed with both a high degree of skill and constant alert
care.

The tare and second weighing of the filter unit must be
performed with a chemical balance. preferably a refined,
closed-chamber precision balance, within the same air-
conditioned room.

37

In the removal of the filter pad from the smoking holder,
the pad must be-manually folded over with a large tweezer
which is then used to rub all of the remaining PM from the
holder onto the filter pad. Unless this pad folding and rub-
bing operation is performed carefully and completely, there
may be marked variations in the latter determinations.
Unless the manual wiping of the smoking holder is properly
performed, as much as an entire milligram difference in the
PM carried forward for the determinations can be here intro-
duced by inexperience or ineptitude.

For water and nicotine determinations, each filter pad is
next placed into a separate small flask which is then stop-
pered. These flasks must be carefully washed and oven dried
after each use.

Thereafter cach flask containing the separate filter pad
must be thoroughly shaken with the precisely measured
amount of solvent for up to an hour to get the water and nico-
tine into the solution. This must be accomplished by shaking
machines or more rapidly by a spinning agitator.

Experience demonstrates that in the chromatographic de-
termination of water variations can occur among different
operators in the amount of solvent drawn and in the manner
of its mjection into these machines, which again requires
constant calibration.

In nicotine determination, precise dilutions are neces-
sary. In virtual mass production cigarette testing, that factor
may readily become a source of human error.

The calculation of results-requires the use of calculating
machines and necessarily skilled operatives. Approximately
two calculating machines are required in a laboratory utiliz-
ing about 40 ports.

These requirements of refined equipment and experi-
enced personnel, and the basic limitations in the Ogg
Method, underlie the necessity for the suggested period of

38

training for any personnel given the responsibility for operat-
ing a testing laboratory. Even Dr. Hammond found it neces-
sary to offer that caution. (See Hammond Tr. 18-19.) They
dictate further that adequate personne! must be provided.

Laboratory determinations of this nature cannot be
speeded up to accommodate extraneously determined dates.
At the outset, there must be at least one operator for each
smoking machine, one for water determination, and two for
nicotine determinations if these are to be kept in balance with
the smoking machines. Additional personnel are required for
calculation and recording, and for filter unst assembly and
cleaning of laboratory flasks, and maintenance.

Limits Of Measurements Obtainable
In Ogg Method

Even assuming adequate equipment and thoroughly ex-
perienced trained personnel, the available data makes clear
the inherent limits in the Ogg Method. These can be talked
about either as the limits of reproducibility of results within a
single laboratory or as the variances in results found in the
testing of identical cigarettes by the Ogg method among dif-
ferent laboratories.

These inescapable variances are in the Ogg Method it-
self, and have nothing to do with any variations in the popu-
lation of cigarettes being tested. (That factor will be exam-
ined later.)

It can never be forgotten that the Ogg Method was
evolved on a specially prepared uniform lot of cigarettes.
Even so, the percentage coefficients of variance within single
laboratories ranged between |.2 percent and 5.9 percent. Be-
tween laboratories they were never lower than 9.8 percent.
The mean standard deviation ranged as high as 3.19 milli-
grams PM for non-filter cigarettes and 2.48 milligrams PM
for filtered cigarettes.

39

Industry testing of various brands of cigarettes, e.g., not
a uniform specially prepared lot, has shown standard devia-
tions as high as 2.8 milligrams per cigarette determined per
port.

In short, even with the most accurate refined equipment
and experienced personnel, the same laboratory cannot
achieve reproducible results on all brands beyond these lim-
its, and if the results of two laboratories are to be compared
the spreads are greater. The significance of the variations in
the method alone will be considered in discussing sample
size and reporting.

Against this summary description of the machine smok-
ing of cigarettes and what is involved in determining and re-
porting PM and nicotine, some additional comments may be
offered on the four questions on which the Commission has
invited comment.

Butt Length

Insofar as possible, the butt length to which cigarettes
should ve smoked in the smoking machine should be based
on some rational criteria.

In any method employing machine smoking of cigarettes
to determine PM and nicotine there must be standardization
of puff frequency, puff duration, and buff volume. These ba-
sic_factors nonetheless bear no rclation to individual smoking
by any human being. In that respect, as noted, these factors
are when standardized initially averaged.

Because different people smoke to different butt lengths,
and even the same individual will smoke to varying butt
lengths depending upon the circumstances in which he ts en-
gaged, the use of an average butt length is the only rational
basis to employ. To utilize predetermined average puff dura-
tion, puff volume, and puff frequency, and not to use an aver-
age butt length, creates both an illogical and unwarranted dis-
tortion in both the testing and reporting.

40

The recorded data makes it clear that the average butt
length to which individuals smoke is somewhat in excess of
30 millimeters. No witness testified to an average of less
than 30 millimeters.” Those who suggest a shorter butt
length, and a different butt length for filtered cigarettes, are
not unaware that doing so basically biases the comparative
results under the Ogg Method largely in favor of filtered
cigarettes.

It may be granted that there are presently no comprehen-
sive studies of butt lengths, and indeed all such studies have
inherent weaknesses. Butts obtained from ashtrays invariably
indicate a lower average than the true length to which a ciga-
rette is smoked because a great many smokers do not wholly
extinguish cigarettes, and others exert varying degrees of
pressure in attempting to extinguish them. Moreover, there 1s
evidence that most smokers cannot smoke to less than 30 mil-
limeters without burning their fingers. (See Hobbs Tr. 57)

If 23 millimeters were selected, 90 percent of the filter
cigarettes cannot in fact be smoked to that length. Scientifi-
cally, it is not rational to adopt a standard butt length which is

* Dr. Hammond testified that his study showed an average of “ap-
proximately 30” millimeters in the United States. (Tr. 33) Dr. Ogg testi-
fied that data available to members of the committee at the time of his
study “indicated the average butt-length in this country at that time was
approximately 30 millimeters,” and that in a study Dr. Ogg had recently
conducted “the averages came out for non-filter cigarettes was 30.2 mil-
limeters and for filter cigarettes was 33.2.” (Tr. 38-39.) Dr. Hobbs testi-
fied that a butt length of no shorter than 30 to 33 millimeters “does ap-
proximate average smoking habits.” (Tr. 57.) See also the Recommenda-
tions Submitted by Tennessee Eastman Company stating that the results of
its study “indicated that the average butt length was at least 30 mm.” (p.
1) See also the various studies referred to on pages 5-6 of the Statement
to the Federal Trade Commission on Cigarette Smoking Techniques by
the Celanese Corporation all of which showed an average butt length of
at least 30 millimeters.

4]

not applicable to 90 percent of that group of cigarettes.
About 99 percent of all cigarettes, both filtered and non-
filtered, can be smoked to 30 millimeters.

Finally, there is no way of knowing what additional vari-
ances in the Ogg Method, which utilized a butt length of 30
millimeters, would be introduced by adopting a shorter butt
length. In addition, any shorter butt length necessarily in-
creases the difficulties for the operator in positioning the
cigarettes in the smoking machine. This is a difficult and te-
dious task even for the most highly skilled operator having
great dexterity. Moreover, the problems of terminating the
machine smoking, either by observation and withdrawal, or
by automatic means, make it clear that additional variances
would be introduced. Reducing the butt length would require
measurable increases in sample size.

Wet Or Dry Basis

Little need be added to this point. For most cigarettes,
water content ranges from 62 to 13 percent of PM collected
on the Cambridge Filter. Water content among brands like-
wise varies even after conditioning. If the Commission is to
test and record PM among brands, the failure to determine
and report on a dry basis will be highly misleading.

Experience has demonstrated that test results on a dry
basis contribute greater precision. As Dr. Ogg testified (Tr.
40) if the modern gas chromatographic method had been
available at the time of his study, those methods would
probably have been originally included to permit reporting on
a dry basis.

Reporting Of Test Results

There is no challenge that results cannot be reported be-
yond the precision of the testing method. A spring bathroom
scale, accurate only to a pound, cannot give a person’s weight
in ounces or fractions of an ounce.

42

As to particulate matter, the errors in the Ogg procedures
permit accuracy only to the nearest milligram and not to any
more finite values. What has already been noted with respect
to the variances in the Ogg Method and the possibilities of
human error in the mass testing of cigarettes makes it abun-
dantly clear that any effort to report comparable PM results
among different brands of cigarettes to less than the nearest
whole milligram would be both unfounded and substantially
misleading.

By the same token, the record makes clear that the fail-
ure to report results both on an average per puff and average
per cigarette basis would create bias and have unwarranted
adverse competitive effects.

Sampling Procedures and Number
of Cigarettes To Be Smoked

There is no need for elaborate additional statistical
analysis for the consideration of sample size.

To begin with it may be assumed that picking up sam-
ples of each brand at 50 market points will permit the market
sample to approach a true probability sample—to which con-
ventional statistical formulas may be applied. Such a market
sample will not be a true probability sample, but for practical
purposes, considering the other variances which must be
dealt with, it may be considered sufficiently randomized to be
utilized as though it were a true probability sample.

Next, there appears to be no disagreement that a confi-
dence level of 95 percent will afford a reasonable criterion.

The determination of the number of cigarettes of each
brand to be smoked to afford a pragmatically acceptable es-
timate for the entire population of a particular brand therefore
turns on conventional statistical formulas that will adequately
reflect the variations both in the method and in the cigarettes.
The most conservative figure advarced, developed from re-
ported industry experience, employs a standard deviation of

43

1.6 milligrams and yields a required sample size to be
smoked of 205 cigarettes.

Statistical experts, invited carefully’ to study the data and
make recommendations to the Commission, were in accord in
advising that this suggested sample size would have to be re-
garded as the absolute minimum. As Dr. Herbert Arkin (an
outstanding authority as indicated by his qualifications)
pointed out, the variations in cigarettes within the same brand
as well as the variations inherent in the Ogg Method makes it
clear that the use of a standard deviation of 1.6 milligrams
tends to understate the required sample size. His recommen-
dation is that the highest reported standard deviation, rather
than a value nearer the lowest, found in previous testing
work, should be used, to avoid sampling and other errors.
(Arkin Letter, pages 4-6.) He also notes that in most of the
previous testing, cigarettes were weight selected rather than
tested as they are found on the market and smoked by con-
sumers, a factor that reduces the standard deviation, and
therefore should be considered. In his judgment, therefore, a
much larger sample would be appropriate, certainly at the
outset and until a standard deviation for each brand has been
determined.

On the basis of his conclusion that a sample size, deter-
mined by employing a standard deviation of 2.2 to 2.6 milli-
grams would be appropriate, a sample size of 307 to 519
cigarettes to be smoked would be required. (See Arkin Let-
ter, pages 4-5, Appendix A.)

Mr. Hendricks, speaking for both himself and Dr. Alva
L. Finkner, of the Research Triangle Institute, emphasized
that in the application of conventional statistical formulas to
the current problem, the fact that the percentage differences
in PM and nicotine may lie within very narrow limits, to
achieve the desired precision in reporting test results would
call for about 350 cigarettes of each brand to be tested. This
would be essential where these percentage differences be-

44

tween brands were 25 percent of the comparative PM values
being reported. (Hendricks Statement, pages |2-14.)

Moreover, utilizing the published Reader's Digest com-
parative PM and nicotine values for a number of different
market brands, he found that the percentage of difference was
very small indeed and that if in the brands tested by the
Commission comparable small percentages of differences
turned up, far larger samples would be required to be tested.
(Hendricks Statement, page 14.)

No valid basis was offered at the hearing for reducing
the sample size to be tested below the absolute minimum
level of 205 advanced by the research scientists of the five
cigarette companies.

The suggestion that sample size or butt length can some-
how be related to a small fraction of the population of smok-
ers is about as valid as suggesting that average weight esti-
mates can be developed by limiting the observations to the
skinniest people in the population and drawing a small
enough sample to eliminate the contributions to the average
made by the heavier or even obese people.

The only remaining point of apparent confusion resides
in the failure to understand that (in addition to the disclosed
variations inherent in the use of the Ogg Method by thor-
oughly experienced tobacco technologists) there are inescap-
able natural variations in cigarettes. Despite recognized close
quality control in their manufacture, the tobacco in cigarettes
is a natural product, cigarettes are mass produced on fast ma-
chinery, and they are distributed under highly varying cli-
matic conditions and periods of storage. In addition, the re-
quired handling in conditioning prior to testing, and in the
testing procedure itself, occasions further variations. The
plain fact is that in the standardized machine smoking of the
same brand of cigarettes, randomly selected from a market
purchase, the rate of burning causes a difference in the num-
ber of puffs ranging from seven to ten puffs per cigarette.

45

This in turn causes variations in the PM and nicotine depos-
ited on the filter, and results more from the variations among
cigarettes than from the limits of the method.

In short, any suggestion that every cigarette 1s precisely
and minutely identical to every other cigarette within the
same brand is fallacious. No processed natural product can
be manufactured to such precise limits. Recognition of the
variation in any processed agricultural product is reflected in

every governmental or commercially developed grading
standard.

It is perhaps unnecessary to repeat that no factual scien-
tific data exists as to the relevance of PM or so-called “tar” or
nicotine content in terms of health.

Respectfully submitted,

THE AMERICAN TOBACCO COMPANY
/s/ CYRIL F. HETSKO

BROWN & WILLIAMSON TOBACCO
CORPORATION
/S/ ADDISON YEAMAN

LIGGETT & MEYERS TOBACCO COMPANY
/S/ FREDERICK P. HAAS

PHILIP MORRIS INCORPORATED
/S/ PAUL D. SMITH

R. J. REYNOLDS TOBACCO COMPANY
/S/ H. HENRY RAMM

December 20, 1966

46

FEDERAL REGISTER
VOLUME 32 NUMBER 147
Tuesday, August |, 1967 Washington, D.C.
Pages 11107-11197

* * *

FEDERAL TRADE COMMISSION
CIGARETTES
Testing for Tar and Nicotine Content

The Federal Trade Commission, having been advised by
the staff that the cigarette testing laboratory has satisfactorily
completed its trial tests, hereby issues directions to its staff to
commence the first formal test, under the following condi-
tions:

1. Smoke cigarettes to a 23 mm. butt length, or to the
length of the filter and overwrap plus 3 mim. if in excess of 33
mm.

2. Base result on a test of 100 cigarettes per brand, or
type.

3. Cigarettes to be treated will be selected on a random
basis, as opposed to “weight selection”.

4. Determine particulate matter on a “dry” basis em-
ployment the gas chromatography method published by C.M.
Sloan and B.J. Sublett in Tobacco Science 9, page 70, 1965,
as modified by F.J. Schultz’ and A.W. Spears’ report pub-
lished in Tobacco Vol. 102, No. 24. page 32, dated June 17,
1965, to determine the moisture content.

5. Determine and report the “tar” content after subtract-
ing moisture and alkaloids (as nicotine) from particulate mat-
ter.

6. Report tar content to the nearest whole milligram and
nicotine content to the nearest 1/10 milligrams.

47

The Commission directs that the test cover approxi-
mately 50 of the major brands and types (many brands are
sold as regular, and king size, or filter, etc.) and all brands -for
which any tar or nicotine statement appears on the label or in
the advertising. With respect to the latter, one purpose of the
test will be to determine the accuracy of such statement.
Cigarettes for testing will be purchased on the open market in
50 localities throughout the United States.

Issued: July 31, 1967
By the Commission.

JOSEPH W. SHEA,
Secretary.

48

Federal Trade Commission

TAR, NICOTINE, AND CARBON MONOXIDE
OF THE SMOKE OF 1206 VARIETIES
OF DOMESTIC CIGARETTES
FOR THE YEAR 1994

1997

Report of “Tar,” Nicotine, and Carbon Monoxide of the
Smoke of 1206 Varieties of Domestic Cigarettes
For the Year 1994

This report contains data on the “tar,” nicotine, and car-
bon monoxide yields of 1206 varieties of cigarettes manufac-
tured and sold in the United States in 1994. The Federal
Trade Commission (FTC) obtained the test results from the
five largest cigarette manufacturers in the United States.
These companies are: Brown & Williamson Tobacco Corpo-
ration; Liggett Group, Inc.; Lorillard, Inc.; Philip Morris,
Inc.; and R.J. Reynolds Tobacco Company, Inc.!

The Tobacco Institute Testing Laboratory (TITL), a pri-
vate laboratory operated by the cigarette industry, conducted
most the “tar,” nicotine, and carbon monoxide tests for these
varietics. The Commission collected the results of the TITL
testing directly from the individual companies under compul-
sory process. Generic, private label, and other brands not
widely available were not tested by TITL. The Commission
obtained the information on these other brands directly from

| The number of major domestic cigarette manufacturers went from six
to five in April 1995, when the Commission approved B.A.T. Industries’
acquisition of The American Tobacco Company after B.A.T., the parent
company of Brown & Williamson, agreed to divest itself of certain assets
it proposed to acquire from American Tobacco. In October 1996, the
Commission approved B.A.T.’s application to divest six brands, a manu-
facturing plant, and certain related assets to Commonwealth Tobacco
LLC.

49

the manufacturers, pursuant to compulsory process: Results
of such non-TITL testing are indicated by asterisks. The
methodology, processes, and procedures that the five ciga-
rette companies and TITL employ are identical to those the
Commission, in its own testing lab, had followed in the past.
Harold Pillsbury, the former director of the FTC laboratory
and currently a contractor to the Commission had unrestricted
access to the TITL laboratory to review TITL’s testing meth-
odology and protocols and to monitor the actual testing proc-
ess. TITL provided the results to the respective cigarette
companies, which then provided TITL’s data regarding their
own brands to the FTC in response to compulsory process.

The cigarettes were tested using the Cambridge Method.
The FTC approved this methodology, and it has been the
standard for cigarette testing since 1966. The testing was
subjected to the conditions prescribed by the FTC in-Federal
Register, Volume 32, Number 147, Page 11,178, dated Au-
gust 1, 1967. With regard to the testing of carbon monoxide
yield, the conditions are specified in Federal Register, Vol-
ume 45, Number 134, Page 46,483, dated July 10, 1980. The
conditions prescribed in the FTC’s 1967 announcement are
the following:

2 The Commission determined in early 1987 to close its laboratory.
The Commission found that closing the laboratory was necessary for sev-
eral reasons, chiefly, the cost of the laboratory was significant, and the
Commission would have had to commit significant additional funds to
continue the program. The Commission was also persuaded that the in-
formation could be obtained from other sources, and other means were
available to verify the accuracy of industry testing results.

tw

50

Smoke cigarettes to a 23mm. butt length, or to the
length of the filter and overwrap plus 3mm. if in ex-
cess of 23mm.;

Base results on a test of 100 cigarettes per brand, or
type;

Cigarettes to be tested will be selected on a random
basis, as opposed to “weight selection”;

Determine particulate matter on a “dry” basis em-
ploying the gas chromatography method published
by C.H. Sloan and B.J. Sublett in Tobacco Science
9, page 70, 1965, as modified by F.J. Schultz’ and
A.W Spears’ report published in Tobacco Vol. 162,
No. 24, page 32, dated-June 17, 1966, to determine
the moisture content;

Determine and report the “tar” yield after subtract-
ing moisture and alkaloids (as nicotine) from par-
ticulate matter;

Report “tar” yield to the nearest whole milligram
and nicotine yield to the nearest 1/10 milligram (32
Fed. Reg. 11,178 (1967)).

The 1980 FTC announcement contained specifications
regarding a new testing methodology to determine the carbon
monoxide (CO) and nicotine yield of cigarettes. These speci-
fications are the following:

ti

Determine CO concentration using a 20-port se-
quential smoking machine described by H.C. Pills-
bury and G. Merfeld at the 32nd Tobacco Chemists
Research Conference, October 1978;

The concentration of CO will be reported as millt-
grams per cigarettc;

The present method for “tar” and nicotine determi-
nation will be modified to use the method described
in an article entitled, “Gas Chromatographic Deter-

5]

mination of Nicotine Contained on Cambridge Filter
Pads,” by John R. Wagner et al., as presented at the
annual meeting of the Association of Official Ana-
lytical Chemists, October 1978 (45 Fed. Reg. 46,483
(1980)).

- ————

52

NEWS RELEASE

FEDERAL TRADE COMMISSION

Washington, D.C. 20580

OFFICE OF INFORMATION 393-6800 Ext. 197

For RELEASE: A.M., Tuesday, August |, 1967

FTC TO BEGIN CIGARETTE TESTING

The Federal Trade Commission, having been advised by
the staff that the cigarette testing laboratory has satisfactorily
completed its trial tests, has now issued directions to com-
mence the first formal test, under the following conditions:

l.

Smoke cigarettes to a 23 mm. butt length, or to the
length of the filter and overwrap plus 3 mm. if in
excess Of 23 mm.,

Base results on a test of 100 cigarettes per brand, or
type, |

Cigarettes to be tested will be selected on a random
basis, as opposed to “weight selection,”

Determine particulate matter on a “dry” basis em-
ploying the gas chromatography method published
by C.H. Sloan and B.J. Sublett in Tobacco Science
9, page 70, 1965, as modified by F.J. Schultz’ and
A.W. Spears’ report published in Tobacco Vol. 162, _
No. 24, page 32, dated June 17, 1966, to determine
the moisture content,

Determine and report the “tar” content after sub-
tracting moisture and alkaloids (as nicotine) from
particulate matter,

53

6. Report tar content to the nearest whole milligram
and nicotine content to the nearest 1/10 milligrams.

The Commission directed that the test cover approxi-
mately 50 of the major brands and types (many brands are
sold as regular, and king size, or filter, etc.) and all brands for
which any tar or nicotine statement appears on the label or in
the advertising. With respect to the latter, one purpose of the
test will be to determine the accuracy of such statement.
Cigarettes for testing will be purchased on the open market in
50 localities throughout the United States.

In determining the foregoing procedures, the Commis-
sion relied substantially upon a record including written pres-
entation by interested persons and oral testimony offered at a
public hearing on November 30, 1966, which was held “to
assist the Commission in determining what action, if any,
should be taken in the public interest with respect to modify-
ing or amplifying the Cambridge Filter Method ... and the
form in which test results should be expressed.” At the hear-
ing the Commission received numerous submissions reflect-
ing a variety of modifications of the Cambridge Filter Meth-
ods that have been adopted by different groups engaged in
testing cigarettes. No test can precisely duplicate conditions
of actual human smoking and, within fairly wide limits, no
one method can be said to be either “right” or “wrong.” The
Commission considers it most important that the test results
be based on a reasonable standardized method and that they
be capable of being presented to the public in a manner that is
readily understandable. Although minor variations may not
make one testing method “better” than another, the public
interest requires that all test results presented to the public be
based on a uniform method used by all laboratories. Use of
more than one testing method would produce different results
which would only serve to confuse or mislead the public.

In determining the testing method, the Commission has
not attempted to gauge the test to the amount of smoke, or tar

54

and nicotine, which the “average” smoker will draw from any
particular cigarette.

No two human smokers smoke in the same way. No in-
dividual smoker always smokes in the same fashion. The
speed at which one smokes varies both among smokers, and
usually also varies with the same individual under different
circumstances even within the same day. Some take long
puffs (or draws); some take short puffs. That variation ef-
fects the tar and nicotine quantity in the smoke generated.

Even with the same type of cigarette, individual smokers
take a different number of puffs per cigarette depending upon
the circumstances. When concentrating, or talking, the num-
ber of puffs is usually less. When listening, or required to
listen to another person talking, the number of puffs per ciga-
rette, as well as the duration of each puff, usually increases.
Smoking rates while reading a book may differ from smoking
rates while viewing a television program. The number of
puffs and puff duration (as well as butt length) will vary ac-
cording to emotional state. Some smokers customarily put
their cigarettes down in an ashtray where they burn between
puffs; other smokers constantly hold cigarettes in their
mouths; others hold them between their fingers.

The Cambridge Filter Method does not and cannot
measure these many variations in human smoking habits. It
does not measure tar or nicotine in the smoke generated while
the cigarette is not being puffed. It does not measure all of
the tar and nicotine in any cigarette, but only that in the
smoke drawn in the standardized machine smoking according
to the prescribed method. Thus, the purpose of testing is not
to determine the amount of tar and nicotine inhaled by any
human smokcr, but rather to determine the amount of tar and
nicotine generated when a cigarette is smoked by machine in
accordance with the prescribed method.

Accordingly, the testing methed should not be consid-
ered defective because it does not rely on “averages.” There

nn
nn

are too many variables as to both smokers and smoking con-
ditions for any average to be meaningful. Test results
phrased in terms of an “average” smoker could be misleading
to the public, because a smoker has no way of knowing how
closely his smoking habits conform to those of the purport-
edly “average” smoker. It should be emphasized that the
Cambridge Filter Method itself did not purport to duplicate
an “average” smokcr. Rather, it was an amalgam of many
choices-—-some of them arbitrary. For example, the tempera-
ture and humidity specified in that method was not deter-
mined by reference to the “average” temperature or the “av-
erage” humidity at which people smoke cigarettes. There is
no human smoker who smokes, and no cigarette that is
smoked, under conditions that precisely duplicate either the
Cambridge Filter Method in its original form or as modified
by the Commission. Thus, to reiterate, the uniform method
determined by the Commission has as its purpose measure-
ment of the tar and nicotine generated by cigarettes when
smoked according to that procedure.

There has been a wide variation among testing groups on
the question of how many cigarettes of each brand to test.
Recommendations were made to the Commission to test as
few as 60 cigarettes per brand and as many as 200. After
studying the record and its laboratory’s preliminary test re-
sults, the Commission has determined that testing 100 ciga-
rettes per brand will provide valid and reliable results. How-
ever, the Commission intends to continue evaluating its test
results, and on that basis may determine in the future to
change the number of cigarettes tested or any other testing
procedures as may be found necessary.

Chairman Dixon dissents from that part of the majority's
direction on-testing procedures with respect to butt length and
has filed a separate statement which ts attached.

. Commissioner MacIntyre did not participate in the
Commission’s vote on this matter for the reason that he did
not consider that the Commission’s cigarette testing labora-

56

tory had satisfactorily completed its trial test so as to suffi-
ciently and adequately advise the Commission regarding
what ts required in this respect.

Attached is: Separate Statement of Chairman Dixon.

57

FEDERAL TRADE COMMISSION
WASIIINGTON, D.C. 20580

JOSEPH W. SHEA
Secretary October 25, 1967

Mr. Howard H. Bell, Director,

The Code Authority,

National Association of Broadcasters,
1771 N Street, N.W.,

Washington, D.C. 20036

Dear Mr. Bell:

This will reply to your letter of September 20, 1967, in
which you inquire as to the Commission’s current policy re-
garding (1) statements im cigarette advertising relating to
health implications of tar and nicotine content of cigarettes,
and (2) utilization in advertising of the official FTC tar and
nicotine yield data. Your letter requests any guidance that
the Commission could provide your organization in adminis-
tering Radio and Television Code policies pertaining to ciga-
rette advertising.

Any discussion of this subject at the present time must
begin with the premise, which is correctly stated in your let-
ter, that “the government would like to stress the relative ad-
vantages of low tar and nicotine yield cigarettes”. In the Re-
port to Congress on Smoking and Health, submitted on July
12, 1967, the Secretary of Health, Education, and Welfare
stated that “the accumulated evidence strongly suggests that
the lower the ‘tar’ and nicotine content of cigarette smoke,
the lower the harmful effect. * * * The cigarette package
label and advertising should be required to contain informa-
tron on the ‘tar’ and nicotine levels in the smoke of the ciga-
rette, and the identity and quantity of such other substances
or agents in the smoke as may subsequently be found by the
appropriate Federal agency to contnbute to the health hazards
of smoking.”

58

To the same effect, the Surgeon General of the U.S. Pub-
lic Health Service testified before the Senate Commerce
Committee on August 25, 1967, as follows:

“| believe that disclosure of tar and nico-
tine on cigarette packages and in advertise-
ments, and the responsible promotion of those
cigarettes low in tar and nicotine would be
constructive and helpful steps to the extent
they provide the smoker with as much infor-
mation as possible on the risks of smoking and
enables him to make his own decision as to
the amount of dosage he will accept. Public
opinion backs such action. A Public Health
Service survey shows that 77 percent of peo-
ple who were interviewed felt that cigarette
companies should be required to list tar and
nicotine content on packages; among cigarctte
smokers, 71 percent favored such action. As
other substances are found in the cigarette
smoke which contribute to the health hazard
of smoking, the identity and quantity of such
substances, should be included along with tar
and nicotine in the package labeling and in
advertising.

“The question is: will tar and nicotine dis-

closure on cigarette packages and in adver-

~ tisements encourage wider use of the brands

with lower levels? I believe that a progressive

reduction of tar and nicotine levels will result
from such action because of public demand.”

In its Report to Congress under the Federal Cigarette La-
beling and Advertising Act, transmitted June 30, 1967, the
Federal Trade Commission stated: “For the information of
cigarette smokers, the Commission favors mandatory label-
ing of tar and nicotine content on cigarette packages and in
cigarette advertisements and other measures that will prompt

59

cigarette manufacturers to develop less hazardous cigarettes.
* * * It appears to the Commission, from the switch toward
filter cigarettes and the popularity of low tar and nicotine
cigarettes, that a substantial segment of the public is most
concerned about the health hazards of cigarette smoking.
Many smokers would like to give up the habit, but don’t and
won't. Some of these have switched to brands that they be-
lieve, often erroneously, to be less hazardous. The Commis-
sion favors giving smokers as much information about the
risks involved in smoking as is possible and to that end fa-
vors mandatory disclosure of tar and nicotire content, as
measured by a standard test.” (Pp. 8, 28.)

After review and reexamination in the light of the fore-
going, the Commission’s current enforcement policy in re-
gard to statements of, and representations relating to, tar and
nicotine content of cigarettes may be formulated as follows:
As a general rule, the Commission will not challenge such
statements or representations where they are shown to be ac-
curate and fully substantiated by tests conducted m accor-
dance with the standardized testing methods and procedures
used by the Federal Trade Commission, as described in its
release issued August |, 1967. Advertisements which cor-
rectly report official FTC tar and nicotine yield data are
within this category. On the other hand, statements or repre-
sentations based on non-standardized tests having no official
or governmental sanction would tend to confuse and mislead
the public.

_ Where comparisons of tar and nicotine content with
other brands of cigarettes are made, the advertising should be
factual, fair, and not misleading. For example, a cigarette
testing relatively high or not among the lowest in tar and
nicotine yield should not be represented to be otherwise, e1-
ther expressly or by innuendo. By the same token, a cigarette
testing relatively low, or among the lowest, in comparison
with other brands may be so represented in advertising it to
the public, provided that the basis for comparison ts fully and

60.

fairly stated. It must also be borne in mind that, while pres-
ently available scientific data indicate that a substantial re-
duction of tar and nicotine intake may lower the harmful ef-
fects, there is no reliable evidence that the health hazards of
cigarette smoking are thereby eliminated or avoided. Hence,
no matter how relatively low its tar and nicotine content, no
cigarette may truthfully be advertised or represented to the
public, expressly or by implication, as “safe” or “safer”.

The Commission recognizes that this statement of en-
forcement policy is necessarily cast in general terms, and that
questions will inevitably arise concerning its application to
particular cases. In facilitating the. resolution of such prob-
lems, the Commission’s advisory opinion procedure will be
available to you and to members of the broadcasting and
cigarette industries.

In view of the substantial public interest of the subject
matter, the Commission is making public this exchange of
correspondence.

By direction of the Commission.

Chairman Dixon and Commissioner Maclntyre dis-
sented. Their separate statement is attached. Also attached is
the separate statement of Commissioner Elman.

/s/ JOSEPH W. SHEA,
Joseph W. Shea

Secretary.

61

SEPARATE STATEMENT OF CHAIRMAN DIXON
AND COMMISSIONER MacINTY RE

In response to the inquiry from the National Association
Broadcasters, the Commission has set forth its current en-
forcement policy in regard to statements of, and representa-
tions relating to, tar and nicotine content of cigarettes. In
substance, the policy statement is to the effect that the Com-
mission will not challenge representations as to tar and nico-
tine content of cigarettes when the representations are sub-
stantiated by .tests conduc.ed in accordance with testing
methods used by the Commission. Moreover, the policy
statement asserts that representations based on tests not per-
formed in accordance with the methods set down by the
Commission would tend to confuse and mislead the public.
Thus, by implication, it is the stated policy of the Commis-
sion to challenge such representations.

Prior to the establishment of testing procedures by the
Commission, various manufacturers had made representa-
tions as to tar and nicotine content of their individual ciga-
rettes, based on the Cambridge Filter Method of testing,
which tested cigarettes to a 30 mm. butt length. The Com-
mission, however, in establishing its testing procedures, did
not adopt the 30 mm. butt length of the Cambridge method
but set 23 mm. as the standard for testing. This is the shortest
butt length to which a cigarette can be tested in the Commis-
sion’s testing machine. All that will be shown as the result of
this standard is the maximum amount of tar and nicotine that
a smoker may inhale.

Certainly, we would agree to the use of the 23 mm. butt
length for testing purposes if it were established that this is
the average length to which all smokers smoke their ciga-
rettes. Unfortunately, however, this is far from being the
fact. In the first place, it is physically impossible to smoke
most filter brands of cigarettes to a 23 mm. butt length. As
has been pointed out in a previous statement on this issue, of
approximately 120 brands of cigarettes on the market, only

62

49 can be smoked to 23 mm. Secondly, it is agreed that be-
cause smoking habits vary greatly, smokers of nonfilter as
well as filter brands smoke their cigarettes to varying butt
lengths, either shorter or longer than a 23 mm. butt length.

It is generally agreed that the shorter the butt length of a
cigarette, the more tar and nicotine are generated in the main-
stream smoke of the cigarette. In other words, the yield of tar
and nicotine is not uniform for the entire length of the ciga-
rette. Thus, the mainstream smoke of a cigarette at, for ex-
ample, a 23 mm. butt length will yield more tar and nicotine
than the mainstream smoke at 30 mm. Tests performed to a
23 mm. butt length, while giving the maximum tar and nico-
tine content, will not be a true indication as to the tar and
nicotine content of the same cigarette at 30 mm.

It is our belief that one of the purposes in establishing
cigarette testing procedures was to afford smokers a mean-
ingful way of comparing the amount of tar and nicotine
yields as between brands. Under the foregoing circum-
stances, we do not see how the Commission’s standards will
accomplish this purpose. In our view, it is misleading to re-
quire that tests be performed to a butt length which gives a
maximum yield of tar and nicotine in nonfilter cigarettes
when, in fact, it has not been established that this is an aver-
age butt length for smokers, and it is not possible to smoke
certain filter brands to that butt length.

We would not challenge representations based on tests
performed to a 30 mm. butt length. Since most brands of
cigarettes can be tested to that length, the smoker would have
a meaningful way of comparing tar and nicotine content re-
gardless of the overall length of the cigarettes. We realize, of
course, that there are possibly five brands of cigarettes which
cannot be smoked even to 30 mm_ However, the 30 mm.
standard would serve to minimize the disadvantages inherent
in the 23 mm. standard which, in effect, precludes a meaning-
ful comparison between a majority of the brands now on the
market.

63

SEPARATE STATEMENT OF
COMMISSIONER ELMAN

it is true, as Chairman Dixon points out, that the Com-
mission’s tests will show the maximum amount of tar and
nicotine that a smoker of a particular brand will inhale. It is
also true, as he notes, that brands of cigarettes on the market
vary in length. Thus, if Brand A is 100 min. long and Brand
B, made of the same tobacco, is 85 mm. long, the tests will
show Brand A as containing more tar and nicotine than Brand
B. According to Chairman Dixon, this is “misleading”. I do
not agree.

Suppose, for example, that one were to test the caloric
content of chocolate bars. Brand A is sold in a 4 oz. size, and
Brand B, made of the same ingredients, is sold in a 3 oz. size.
One who eats a Brand A bar will consume substantially more
calories than Brand B. Is it “misleading” to report that Brand
A contains more calories than Brand B? Chairman Dixon
would answer “yes”, because it is “not established” that the
“average person” will eat the whole bar. Conceivably, he
might eat only half of a Brand A bar—in which case he
would be consuming fewer calories than if he ate all of Brand
B. The Chairman applies the same reasoning to the testing of
cigarette brands for tar and nicotine content.

Moreover, even he does not propose that the testing pro-
cedure should be to smoke a uniform length (say, 50 mm.) of
every cigarette regardless of its actual size. His proposal
was, and is, that all cigarettes, regardless of size, be smoked
down to a butt length of 30 mm. Thus, if the Chairman’s
testing procedure were to be used, the machine would smoke
70 mm. of Brand A, 100 mm. long, and 55 mm. of Brand B,
made with the same tobacco but 85 mm. long. The Chair-
man’s test results would be just as “misleading” in showing
Brand A as containing more tar and nicotine than Brand B.

The Chairman also points out that many filter brands
cannot be smoked down to a butt length of 23 mm. Taking

64

that fact into account, the Commission’s testing procedure
provides that all such cigarettes shall be tested to a butt
length of “the filter and overwrap plus 3 mm.” In this respect
the Commission adopted the proposal made not only by the
health and medical organizations but also by industry repre-
sentatives. This testing procedure clearly affords a sensible
and meaningful basis for comparing the maximum tar and
nicotine yields as between brands of cigarettes; and it is nei-
ther accurate nor fair to suggest otherwise.

The fact of the matter ts that there is nothing “mislead-
ing” in the testing procedure adopted by the Commission.
The difference between the Chairman and the majority of the
Commission is quite simple. He would test a cigarette for
only part of its tar and nicotine content. We would test for all
of it. By analogy, the Chairman would determine the-alcoho!
content of a martini by testing the vermouth but not the gin.
Query: who is “misleading” whom?*/

*/ Since the Chairman has seen fit to rehash the arguments considered
and rejected by the Commission before adopting its testing procedure, it
is appropriate to repeat the following excerpts from the Commission’s
release of August 1, 1967:

“No test can precisely duplicate conditions of actual human smoking
and, within fairly wide limits, no one method can be said to be either
‘right’ or ‘wrong.’ The Commission considers it most important that
the test results be based on a reasonable standardized method and that
they be capable of being presented to the public in a manner that is
readily understandable. Although minor variations may not make
one testing method ‘better’ than another, the public interest requires
that all test results presented to the public be based on a uniform
method used by all laboratories. Use of more than one testing
method would produce different resulis which would only serve to
confuse or mislead the public.

“In determining the testing method, the Commission has not at-
tempted to gauge the test to the amount of smoke, or tar and nicotine,
which the ‘average’ smoker will draw from any particular cigarette.

[Footnote continued on next page]

65

[Footnote continued from previous page|

“No two human smokers smoke in the same way. No individual
smoker always smokes in the same fashion. The speed at which one
smokes varices both among smokers, and usually also varies with the
same individual under different circumstances even within the same
day. Some take long puffs (or draws); some take short puffs. That
variation affects the tar and nicotine quantity in the smoke gencrated.

“Even with the same type of cigarette, individual smokers take a
different number of puffs per cigarette depending upon the circum-
stances. When concentrating, or talking, the number of puffs is usu-
ally less. When listening, or required to listen to another person talk-
ing, the number of puffs per cigarette, as well as the duration of cach
puff, usually increases. Smoking rates while reading a book may dif-
fer from smoking rates while viewing a television program. The
number of puffs and puff duration (as well as butt length) will vary
according to emotional state. Some smokers customarily put their
cigarettes down in an ashtray where they bur between puffs; other
smokers constantly hold cigarettes in their mouths; others hold them
between their fingers.

“The Cambridge Filter Method does not and cannot measure
these many variations in human smoking habits. It does not measure
tar or nicotine in the smoke generated while the cigarette is not being
puffed. 11 does not measure all of the tar and nicotine in any ciga-
rette, but only that in the smoke drawn in the standardized machine
smoking according to the prescribed method. Thus, the purpose of
testing is not to determine the amount of tar and nicotine inhaled by
any human smoker. but-rather to determine the amount of tar and
nicotine generated when a cigarette is smoked by machine in accor-
dance with the prescribed method.

“Accordingly, the testing method should not be considered de-
fective because it does not rely on ‘averages.’ There are too many
variables as to both smokers and smoking conditions for any average
to be meaningful. Test results phrased in terms of an ‘average’
smoker could be misleading to the public, because a smoker has no
way of knowing how closely his smoking habits conform to those of
the purportedly ‘average’ smoker.”

66

Smoking and Tobacco Control
Monograph 7

The FTC Cigarette Test Method for Determining Tar,
Nicotine, and Carbon Monoxide Yields of U.S. Cigarettes

Report of the NCI Expert Committee

NATIONAL INSTITUTES OF HEALTH
National Cancer Institute

Foreword

In response to the emerging scientific evidence that ciga-
rette smoking posed a significant health risk to the user, in
the early 1950’s the major cigarette manufacturers began
widespread promotion of filtered cigarettes to reassure smok-
ers that, regardless of whatever unhealthy constituents were
in cigarette smoke, filters were a “scientific” breakthrough.

Advertisements for Viceroy’s “health guard filter”
stated, “DENTISTS ADVISE—Smoke VICEROYS—The
Nicotine and Tars Trapped by The Viceroy Filter CAN
NEVER STAIN YOUR TEETH!” and “Leading N.Y. Doctor
Tells His Patients What to Smoke-—--Filtered Cigarette Smoke
Is Better For Health. The Nicotine and Tars Trapped .. .
Cannot Reach Mouth, Throat Or Lungs.” Chesterfield was
“Best for you-—/ow in nicotine, highest in quality,” while
L&M’s were “Just What the Doctor Ordered.” Lorillard To-
bacco Company stressed its science-based Kent micronite
tilter (the original micronite filter was made of asbestos) and
claimed it removed seven times more tar and nicotine than
any other cigarette, which “put Kent in a class all by itself
where health protection is concerned.” Of course, we know
today that not only were these claims patently false, but the
cigarette companies knew it.

In the early 1950's the Federal Trade Commission (FTC)
challenged a variety of health claims made for cigarettes in
their advertising, including claims about tar and nicotine. In

67

1955 FTC published advertising guidelines that, among other
things, prohibited claims by cigarette manufacturers that a
particular brand of cigarettes was low in tar and nicotine or
lower than other brands, when it had not been established by
competent scientific proof that the claim was true and the dif-
ference was significant. Cigarette manufactures, however,
continued to advertise tar numbers. In the absence of a stan-
dardized test methodology, this resulted in what is referred to
as a “tar derby”—a multitude of inconsistent, noncomparable
claims that did not give consumers a meaningful opportunity
to assess the relative tar delivery of competing brands. The
tar derby ended in 1960 when discussions with FTC culmi-
nated in an industry agreement to refrain from tar and nico-
tine advertising.

In 1966, however, the U.S. Public Health Service (PHS)
prepared a technical report on “tar” and nicotine that con-
cluded, “The preponderance of scientific evidence strongly
suggests that the lower the ‘tar’ and nicotine content of ciga-
rette smoke, the less harmful would be the effect.” In reach-
ing this conclusion, the report noted the clear relationship be-
tween dose of cigarette smoke received by the smoker and
disease risk. Regardless of how dose was calculated——by
number of cigarettes smoked per day, age of initiation, total
number of years one smoked, or depth of inhalation, mortal-
ity rates among smokers increased. When smokers quit
smoking, their risk was reduced in proportion to the length of
time off cigarettes.

Subsequent to the PHS statement, FTC reversed its deci-
sion banning tar and nicotine claims in advertising and estab-
lished a standardized testing protocol for assessing tar and
nicotine yields. Today that protocol is widely known as the
FTC test method. In 1980 the protocol was broadened to in-
clude measurement of the carbon monoxide yields of ciga-
rettes as well.

The initial protocol adopted by FTC was largely based
on the work of U.S. Department of Agriculture chemist C.L.

68

Ogg, as published in the Journal of the Association of Offi-
cial Agricultural Chemists in 1964. it appears, however, that
this protocol was based on one person’s observations about
how people smoked.

Much the same protocol] had been proposed by American
Tobacco Company researchers in 1936. Writing in the July
Issue of Industrial and Engineering Chemistry, J.A. Bradford
and colleagues noted, “The present writer’s arbitrarily se-
lected rate is a 35-cc puff of 2-second duration taken once a
minute.”

However, cigarettes consumed at that time were vastly
different from those manufactured and marketed later. In
fact, tar and nicotine levels began to decline during the
1950’s, concurrent with the mass marketing of filter ciga-
rettes. Market share of filter cigarettes increased from almost
zero in 1950 (0.6 percent of the market) to 50 percent by dec-
ade’s end. Total cigarette sales, which had begun to decline
after the first public statements about the hazards of smoking
in the early 1950’s, rebounded to new highs.

Although filter efficiency may have contributed to some
of the reduction in tar/nicotine yields in the 1950's, the de-
cline resulted mostly from less tobacco being used to make
filtered as opposed to unfiltered cigarettes. However, during
the 1960’s and 1970’s major cigarette design changes re-
sulted in significantly lower machine-measured cigarette
yields. The changes included increased use of ventilated to-
bacco rods and filters, use of more porous cigarette papers,
and increased use of expanded and reconstituted tobacco.
Concurrent with these modifications in cigarette design, ciga-
rette manufacturers increasingly made use of additives in
manufacturing. Today about 600 different compounds are
routinely added to domestic cigarette brands, yet no routine
testing is performed to determine whether these compounds
pose any additional health risk to the smoker when they are
burned in a cigarette.

69

U.S. market share of cigarettes yielding 15 mg tar or less
went from 3.6 percent in 1970 to 44.8 percent by 1980. The
sales-weighted average tar and nicotine yields of all U.S.
cigarettes are now approximately 12 mg tar and 0.9 mg nico-
tine. By comparison, sales-weighted yields in the early
1950’s were 35 mg tar and 2.5 mg nicotine.

As consumption of low-yield cigarettes began to prolif-
crate, the public health community became concerned that
these products were not what they seemed. Increasingly, sci-
entific studies documented that smokers who switched to
these low-yield products smoked them differently, thus ne-
gating the reason many of them changed in the first place—to
lower their health risk.

The U.S. Congress also voiced its concern in 1978 when
it enacted the Health Services and Centers Act. Section 403
of that legislation directed the U.S. Department of Health and
Human Services (DHHS) to conduct a “study or studies of
(1) the relative health risks associated with smoking ciga-
rettes of varying levels of tar, nicotine, and carbon monoxide;
and (2) the health risks associated with smoking cigarettes
containing any substances commonly added to commercially
manufactured cigarettes.” The Secretary of the Department
of Health and Human Services addressed this issue as part of
the 1981 Surgeon General's report, The Health Consequences
of Smoking: The Changing Cigarette. The overall conclu-
sion of that report was clear: There is no safe cigarette and
no safe level of consumption.” Although the report did note
that smoking cigarettes with lower yields of tar and nicotine
reduces the risk of lung cancer to some extent, the benefits
are minimal in comparison with giving up cigarettes entirely.
Evidence relating to heart disease, other cancers, or chronic
obstructive lung disease was not sufficient to permit conclu-
sions to be drawn. As to the accuracy of the FTC test
method, the report stated: “The ‘tar’ and nicotine yields ob-
tained by present testing methods do not correspond to the

70

dosages that the individual smokers receive: In some cases
they may seriously underestimate these dosages.” |

Growing numbers of questions were raised about the ac-
curacy of the FTC test protocol to measure tar, nicotine, and
carbon monoxide levels from low-yield cigarettes—-questions
raised not just by the public health community but also within
the tobacco industry. Competitors complained to FTC that
Brown and Williamson’s (B&W) Barclay brand cigarette did
not test accurately with the FTC test method. They argued
that the brand was designed with unique air ventilation chan-
nels that caused it to test low on the FTC method. The venti-
lation channels, which remained open when Barclays were
smoked on the FTC machine, were rendered inoperable when
a human being smoked the cigarettes. In April 1983 FTC
announced that its testing method understated values for con-
stituents in Barclay cigarettes, and as a result, until new test-
ing methods were developed, FTC would no longer report an
official rating for Barclay cigarettes. Later, FTC took similar
steps with respect to other B&W cigarette varieties that used
a filter design similar to Barclay’s.

Eventually FTC closed its cigarette testing laboratory, in
part because of insufficient expertise within the agency to
carry out an increasingly complex and costly testing program.
Since 1987, constituent levels for domestic cigarette brands
have been determined for the manufacturers by the Tobacco
Institute Testing Laboratory with oversight by FTC. The To-
bacco Institute serves as a trade organization as well as the
information and lobbying arm of the tobacco industry.

In June 1994 the Chairman of the House Subcommittee
or Health and the Environment wrote the Director of the Na-
tional Cancer Institute (NCI), asking him to convene a meet-
ing of experts to“... review and make recommendations on
the accuracy and appropriateness of the Federal Trade Com-
mission’s method for determining the relative ‘tar’ and nico-
tine content of cigarettes.” A similar request was received
from the FTC Chairman asking that NCI convene a consen-

7I

sus conference on the topic and outlining several areas it
wished to be considered.

On December 5 and 6, 1994, a meeting of the NCI ad
hoc expert committee was convened under the aegis of the
President’s Cancer Panel to examine this issue. The commit-
tee consisted of || individuals from diverse scientific back-
grounds and experience. The committee had the benefit of
excellent presentations from 14 experts whose professional
careers were not only involved in research on smoking, but
who have been active contributors to this field of scientific
inquiry. Two of the individual participants were cigarette
industry scientists, who participated in all discussions.

From the outset of the committee’s deliberations, it was
clear that the intent of the meeting was not to redesign the
FTC testing protocol but, rather, to examine the protocol and
make suggestions for improvement, if warranted. To provide
a framework for discussion, the committee was asked to con-
sider three basic questions:

1. Does the evidence presented clearly demonstrate
that changes are needed in the current FTC pro-
tocol for measuring tar, nicotine, and carbon
monoxide? If yes, what changes are required?

2. Should constituents other than tar, nicotine, and
carbon monoxide be added to the protocol?

3. Does the FTC protocol provide information use-
ful to smokers in making decisions about their
health?

1. The committee reached the following conclusions with
respect to the first question.

A. The smoking of cigarettes with lower machine-
measured yields has a small effect in reducing the
risk of cancer caused by smoking, no effect on the
risk of cardiovascular diseases, and an uncertain ef-
fect on the risk of pulmonary disease. A reduction

72

in machine-measured tar yield from 15 mg tar to |
mg tar does not reduce relative risk from 15 to |.

.. The FTC test protocol was based on cursory obser-

vations of human smoking behavior. Actual human
smoking behavior is characterized by wide varia-
tions in smoking patterns, which result in wide
variations in tar and nicotine exposure. Smokers
who switch to lower tar and nicotine cigarettes fre-
quently change their smoking behavior, which may
negate potential health benefits.

Accordingly, the committee recommends the fol-
lowing changes to the FTC protocol:

1. This system should also measure and publish
information on the range of tar, nicotine, and
carbon monoxide yields that most smokers
should expect from each cigarette sold in the
United States.

2. This information should be clearly communi-
cated to smokers.

3. A simple graphic representation should be pro-
vided with each pack of cigarettes sold in the
United States and in all advertisements. The
representation should not imply a one-to-one re-
lationship between measurements and disease
risk.

4. The system must be accompanied by public
education to make smokers aware that individ-
ual exposure depends on how the cigarette 1s
smoked and that the benefits of switching to
lower yicld cigarettes are small compared with
quitting.

There should be Federal oversight of cigarette test-
ing, but such testing should continue to be per-

Il.

73

formed by the tobacco industry and at industry ex-
pense.

E. The questions involved in the purpose, methodol-
ogy, and utility of the FTC protocol are complex
medical and scientific issues that require ongoing
involvement of Federal health agencies; including
the National Institutes of Health, the Food and Drug
Administration, and the Centers for Disease Control
and Prevention.

F. The system should be reexamined at least every 5
years to evaluate whether the protocol is maintain-
ing its utility to the smoker.

G. When a cigarette manufacturer makes significant
changes in cigarette design that affect yields, it
should notify the appropriate Federal agency.

With regard to the second question, the committee rec-
ommends that to avoid confusing smokers, no smoke
constituents other than tar, nicotine, and carbon monox-
ide be measured and published at the present time.
Smokers should be informed of the presence of other
hazardous smoke constituents with each package and
with all advertisements. These constituents should be
classified by toxic effects.

In considering the third question, the committee reached
the following conclusions:

A. Information from the testing system is useless to
smokers unless they have ready access to it. The in-
formation from the testing system should be made
available to all smokers, including those who smoke
generic brands and other brands not widely adver-
tised.

B. Brand names and brand classifications such as
“light” and “ultralight” represent health claims and

74

should be regulated and accompanied, in fair bal-
ance, with an appropriate disclaimer.

C. The available data suggest that smokers misunder-
stand the FTC test data. This underscores the need
for an extensive public education effort.

As Chairman of the President’s Cancer Panel under
whose aegis this meeting was convened, | would like to ex-
press here my admiration and deep appreciation to the mem-
bers of the NCI ad hoc committee and its expert consultants
for a job well done. In transmitting this report to both the
U.S. Congress and the Federal Trade Commission, it is my
sincere hope that the recommendations contained herein will
receive the serious and thoughtful consideration they deserve.

Harold P. Freeman, M.D.
Chairman, President’s Cancer Panel

75

Chapter 1

Cigarette Testing and the Federal Trade
Commission: A Historical Overview!

C. Lee Peeler

Cigarette manufacturers began advertising their prod-
ucts’ tar and nicotine content before there was a standardized
procedure for testing cigarette output. In 1955, after a series
of cases challenging a variety of claims made for cigarettes
(including tar and nicotine claims),? the Federal Trade Com-
mission (Commission or FTC) published cigarette advertising
guides. Among other things, the guides prohibited claims
that a particular brand of cigarettes was low in tar and nico-
tine or lower than other brands “when it has not been estab-
lished by competent scientific proof... that the claim is true,
and if true, that such difference or differences are significant”
(Federal Trade Commission, 1 988a).

However, cigarette manufacturers continued to advertise
tar numbers. In the absence of a standardized testing meth-
odology, their claims resulted in what is often referred to as
the “tar derby”——a multitude of inconsistent, noncomparable

1 These remarks are the views of the staff of the Bureau of Consumer
Protection. They do not necessarily represent the view of the Commis-
sion or any individual commissioner.

2 See, e.g., Reynolds Tobacco Co. v. FTC, 192 F.2d 535 7th Cir. (1951)
(claims that Camel does not impair the physical condition of athletes and
aids digestion); American Tohacco Co., 47 F.T.C. 1393 (1951) (Lucky
Strike cigarettes advertised as less irritating to the throat than competing
brands and containing less tar than four other leading brands); P. Lori/-
lard Co., 46 F.T.C. 735 (1950) (Old Gold cigarettes advertised as lowest
of seven leading brands tn nicotine and throat irritating tars, and Beech-
Nut cigarettes as providing “definite defense against throat irritation’).
See also, e.g . Leighton Tobacco Co. 46 F.T.C. 1230 (1950) (Phantom
cigarettes represented as causing no irritation of any kind).

76

claims that did not give consumers a meaningful opportunity
to assess the relative tar delivery of competing brands. The
tar derby ended in 1960, when discussions with the Commis-
sion culminated in an agreement by the industry to refrain
from tar and nicotine advertising (Federal Trade Commis-
sion, 1988b).

In 1964 the first Surgeon General’s report on the health
risks of smoking concluded that cigarette smoking was a
cause of lung cancer in men (U.S. Department of Health and
Human Services, 1964). In 1966 the Public Health Service
stated that“The preponderance of scientific evidence
strongly suggests that the lower the tar and nicotine content
of cigarette smoke, the less harmful would be the effect”
(U.S. Department of Health and Human Services, 1981, p. v).

It was in this environment that the Commission initiated
two major steps in 1966 to encourage cigarette manufacturers
to provide consumers with comparative information about
their products’ tar and nicotine.yields. First, it ended the ban
on tar and nicotine advertising by announcing that factual
statements of the tar and nicotine content of mainstream ciga-
rette smoke could be made if they were supported by tests
conducted in accordance with the so-called “Cambridge Fil-
ter method” and if they were not accompanied by claims
about reduced health hazards (Federal Trade Commission,
1988a). Second, it authorized establishment of a laboratory
to analyze cigarette smoke and invited public comment on
what modifications, if any, should be made to the Cambridge
Filter method for purposes of the laboratory’s procedures and
how the test results should be expressed (Federal Register,
1966). The modified Cambridge Filter method ultimately
adopted by the Commission is often referred to as the “FTC
method.”

77

By mid-1967 the laboratory was ready to begin testing
cigarettes (Federal Register, 1967).5 The Commission
agreed, pursuant to Senator Warren Magnuson’s request,’ to
report the test results to Congress periodically, a process that
continues today.

From the outset, the testing was intended to obtain uni-
form, standardized data about the tar and nicotine yield of
mainstream cigarette smoke, nof to replicate actual human
smoking. The Commission recognized that individual smok-
ing behavior was just that—too individual to gauge what a
hypothetical “average” smoker would get from any particular
cigarette: “No two human smokers smoke in the same way.
No individual smoker always smokes in the same fashion”
(Federal Trade Commission, 1967). The purpose of the test-
ing was “not to determine the amount of ‘tar’ and nicotine
inhaled by any human smoker. but rather to determine the
amount of tar and nicotine generated when a cigarette is
smoked by machine in accordance with the prescribed
method” (Federal Trade Commission, 1967). Indeed, the
Cambridge Filter method did not attempt to duplicate an “av-

3 For the first dozen years of its existence, the laboratory tested only
for tar and nicotine. In 1980 the protocol was modified to add testing for
carbon monoxide.

4 Expressing the opinion held at that time by many people in the Fed-
eral Government, Senator Magnuson stated that “By encouraging smok-
ers to switch to low tar/micotine cigaretics, we can contribute meaning-
fully to the physical health of our nation. Publication of the Commis-
sion’s testing results is one important facet.

The Commission expressed its views concerming dissemination of tar
and nicotine figures in an October 1967 letter to the National Association
of Broadcasters: “The Commission favors giving smokers as much in-
formation about the risks involved in smoking as ts possible and to that
end favors mandatory disclosure of tar and nicotine content, as measured
by a standard test.” P

78

erage” smoker but was “an amalg

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0251%3A06. Public record. Not legal advice.