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BEFORE THE FEDERAL TRADE COMMISSION

COMMENTS OF PHILIP MORRIS, INCORPORATED,
R.J. REYNOLDS TOBACCO COMPANY,
BROWN & WILLIAMSON TOBACCO CORPORATION,
AND LORILLARD TOBACCO COMPANY

ON THE PROPOSAL ENTITLED

FTC CIGARETTE TESTING METHODOLOGY
FTC FILE NO. P944509
REQUEST FOR PUBLIC COMMENT
(62 Fed. Reg. 48,158)

Pursuant to the Commission's request for public comment dated September 9, 1997, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, and Lorillard Tobacco Company ("the manufacturers") submit these comments on the above-captioned proposal.

For more than 25 years, the manufacturers in cooperation with the Commission have tested their cigarettes according to the smoking-machine test method prescribed by the Commission and have disclosed the ratings produced by that testing in their advertising. Since 1987, when the Commission closed its own cigarette testing laboratory, the manufacturers have continued cigarette testing by the Tobacco Institute Testing Laboratory, utilizing the method prescribed by, and subject to the oversight of, the Commission.

The Commission's current testing method requires, in pertinent part, that cigarettes be tested by a routine analytical smoking machine according to a 60/25/2 puffing regimen (i.e., every 60 seconds, a 35 milliliter puff of two seconds' duration is drawn by the machine). The "tar," nicotine and carbon monoxide (CO) yields for each brand style tested according to the prescribed method are reported to the Commission.¹ The Commission reports those numbers to the public.² The manufacturers, by agreement with the Commission, include the "tar" and nicotine numbers in their advertising for each brand style.³

The Commission has proposed that the current test method be supplemented with a second test method requiring that cigarettes be tested by a routine analytical smoking machine according to a 30/55/2 puffing regimen (i.e., every 30 seconds, a 55 milliliter puff of two seconds' duration would be drawn by the machine). The "tar" and nicotine numbers produced for each brand style by the two tests would be included in the advertising for each brand style, together with a legend indicating that an individual smoker's actual "tar" and nicotine intake depends on how a cigarette is smoked.

For the reasons discussed herein, the manufacturers are not convinced that changes in the Commission's current system for testing cigarettes and reporting "tar" and nicotine numbers in cigarette advertising are necessary or will serve the Commission's purpose. Notwithstanding that difference of opinion, the manufacturers are prepared to assist the Commission in its efforts to help strengthen consumer understanding of what the numbers produced by smoking machine tests do and do not signify. In particular:

• The manufacturers believe that the current test method should continue to be used. They are not convinced that it should be supplemented with a second test method.
• The manufacturers are prepared to include in their advertising, together with the "tar" and nicotine numbers, a legend stating that how much "tar" and nicotine a smoker gets depends on how intensely the cigarette is smoked.
• If the current test method is to be supplemented, the manufacturers believe that the additional test method proposed by the Commission is rational.
• The manufacturers should be permitted to use the "multiplier" they have proposed to produce close estimates of the ratings that such an additional test would produce, in lieu of having to test every cigarette twice.
• The manufacturers believe that the scientific evidence necessary to support a vent-blocking test parameter is lacking and that a test method incorporating such a parameter would not be justified.

Before addressing the specific questions posed by the Commission, several general comments are in order, all of which are developed in greater detail in the answers to the Commission's specific questions.

1. The manufacturers do not claim that lower-yield cigarettes are "safe" or are "safer" than higher-yield cigarettes. Every cigarette advertisement and every cigarette package includes one of four federally-mandated health warnings that are incompatible with the belief that any cigarette is "safe," or is "safer" than any other cigarette.

2. To the extent that proposed changes in the current FTC test method reflect a concern that the numbers produced by the current test method do not reflect actual smoker intake, such proposed changes rest on a misconception that routine analytical smoking machine tests are meant to predict, and are able to predict, actual smoker intake. As the Commission has long recognized, testing by routine analytical smoking machines -- the type of smoking machine used for standardized cigarette testing -- is not meant to predict actual smoker intake and is incapable of doing so.

Routine analytical smoking machines cannot smoke like people.⁴ The amount of "tar" and nicotine that may be trapped on the Cambridge Filter pad of such a smoking machine from a puff on a cigarette taken by the smoking machine in accordance with a prescribed (and -- given the wide variation in smoking behavior -- necessarily arbitrary) puffing regimen cannot predict, and was never intended to predict, the amount of "tar" and nicotine that a smoker or any group of smokers will inhale. As the Commission has emphasized, no individual smoker smokes the same way all the time, and no two smokers smoke alike. Efforts to devise a standardized test method that will produce "tar" and nicotine ratings that predict actual intake for a particular smoker are therefore misconceived.

Like all other standardized smoking machine test methods of which the manufacturers are aware, the current FTC test method ranks brand styles by "tar" and nicotine yield.⁵ Smokers are familiar with the ratings produced by the current test method, and continued use of the current test method assures historical continuity of the data. For those reasons, testing under the current FTC test method should continue. The available evidence indicates, moreover, that other standardized testing regimens, while producing different numbers, would not appreciably change the relative rankings of the brand styles tested.⁶ It is unclear what purpose would be served by adopting a new test that simply substitutes new (arbitrary) ratings for the current (arbitrary) ratings while preserving the existing brand-style ranking.

3. To the extent that proposed changes in the current FTC test method reflect a concern that smokers believe that the numbers produced by the current test method represent actual smoker intake, better means are available to correct any such perceived misimpression. The most effective way is to communicate to smokers what the numbers produced by the test do and do not signify. The legend set forth in Attachment B to the Commission's request for public comment ("How much tar and nicotine you get from a cigarette depends on how intensely you smoke it.") encapsulates both messages that the Commission apparently seeks to convey -- (1) the "tar" and nicotine smokers may get from a cigarette is not a fixed value, and (2) how much "tar" and nicotine smokers will get from a cigarette depends on how the cigarette is smoked. There is no need to use dual ratings to communicate those messages symbolically. Attempting to do so could create other problems, for dual ratings may perpetuate misunderstanding about what routine analytical smoking machine yield ratings signify. More broadly speaking, the effects of the Commission's proposed dual-rating system on consumer perception and behavior are unknown. Extensive consumer research would be required, at a minimum, to determine what those effects would be.

It seems plausible that supplementing the current FTC test method with the proposed upper-tier test method would be viewed by smokers as providing more accurate, or more precise, information about their actual intake of "tar" and nicotine. Smokers may, indeed, conclude that the "high" and "low" end points produced by the proposed two-tier test bracket the range of "likely" smoker intake -- a message the Commission's question 1b suggests it intends the dual ratings to convey. In fact, the "high" and "low" end points of "likely" intake of "most smokers" for each of the hundreds of cigarette brand styles on the market have not been established, and it may not be possible to develop a test to predict individual smoker intake that could be used to establish such end points. Moreover, even if such a predictive test could be developed, it would have to be validated; and such a test, once developed and validated, would require smoker testing on a significant scale -- not in laboratory settings, but in real-world settings -- to establish "high" and "low" end points of "likely" intake for "most smokers" for each of the hundreds of brand styles on the market. In the absence of such testing, there would be no scientific basis for viewing the end points as bracketing "likely" smoker intake for any brand style.

4. To the extent that proposed changes in the current FTC test method reflect a concern that the current method does not reflect "compensatory" smoking behavior, such proposed changes, again, rest on a misconception that routine analytical smoking machine tests are meant to predict, and are able to predict, actual smoker intake. As discussed in detail below, such proposed changes also rest on a view of the extent of "compensatory" smoking behavior -- in particular the extent of the behavior called "vent blocking" -- that lacks the degree of scientific support needed to justify a vent-blocking test parameter.

Moreover, as discussed in Appendix A, even taking into account the factors that render the data crude and imprecise, the incorporation of a partial vent-blocking parameter in nicotine testing requirements recently prescribed by the Massachusetts Department of Public Health did not appreciably alter the relative ranking of cigarettes produced by the current FTC test method for the cigarettes that were tested pursuant to those requirements. In addition, the partial vent-blocking parameter generally did not, in combination with the other parameters prescribed by Massachusetts, produce nicotine yield ratings higher than those produced by the Commission's proposed upper-tier test.⁷

5. Finally, although we are not convinced that the current FTC test method should be supplemented with an additional test, if the Commission should determine that an additional test is warranted, the Commission should permit the use of the "multiplier" proposed by the manufacturers to produce estimates of the ratings that the additional test would produce, rather than require that the manufacturers and others test all cigarette brand styles twice.<sup>8



1</sup>The smoking machine measures the amount of "tar" and nicotine in the smoke from a cigarette that is captured on the pad of the machine when the cigarette is smoked according to the prescribed test method. The CO from the smoke is captured in a bag.

²See, e.g., Federal Trade Commission Report on the Tar, Nicotine, and Carbon Monoxide of the Smoke of 1,249 Varieties of Domestic Cigarettes for the Year 1995 (January 15, 1998)

³See Letter to Federal Trade Commission from the Manufacturers, dated December 17, 1970.

⁴Routine analytical smoking machines of the type used for standardized cigarette testing are to be distinguished from "human-mimic" smoking machines. Some laboratories have built smoking machines that can replicate the "puffing profile" of an individual as measured on a single cigarette smoking, or as an average profile for that individual over multiple smokings. The machines are not designed for, nor are they capable of, the high-output, multiple smokings conducted with the routine analytical smoking machines. While the human-mimic machines can produce different puff profiles, the smoke yields generated are no more representative of an "average" of the smoking population than those generated by the routine analytical smoking machines at a given set of puffing conditions.

⁵"The term 'brand style' means a variety of cigarettes distinguished by the tobacco used, tar and nicotine content, flavoring used, size of the cigarette, filtration on the cigarette, or packaging." Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1332(8).

⁶As discussed in Appendix A, in connection with the nicotine testing required by the Massachusetts Department of Public Health, this appears to be the case even with respect to testing requirements utilizing partial vent-blocking.

⁷We urge the Commission to discourage (and, if possible, prevent) individual states from imposing their own cigarette testing and reporting requirements on the manufacturers. To date, Massachusetts has already required the manufacturers to submit nicotine yield data for samples of cigarettes sold in Massachusetts, pursuant to testing requirements prescribed by the Massachusetts Department of Public Health that differ significantly from the current and proposed FTC test methods. The Texas Department of Health has also issued proposed rules requiring the manufacturers to submit nicotine yield data for samples of cigarettes sold in Texas, pursuant to requirements similar to those prescribed by Massachusetts. In addition, as detailed in Appendix B, as of February 4, 1998, bills were pending in at least eight other states (Delaware, Illinois, Indiana, Iowa, Maine, Michigan, New Jersey and New York) that would similarly require the manufacturers to submit nicotine yield data for cigarettes sold in those states, under testing requirements to be prescribed by the health department in each state. Such state testing and reporting requirements compete directly with the testing and reporting required by the Commission. To the extent that a state's testing requirements are different than the Commission's, testing and reporting pursuant to the state's requirements are bound to further confuse consumers, who will be presented with different yield ratings from multiple sources for the same products. We urge the Commission to take the necessary steps to ensure that consumers receive a uniform set of yield ratings for cigarettes pursuant to a single set of testing requirements.

⁸Some of the scientific studies cited in these comments were funded by cigarette manufacturers. The manufacturers believe that any study should be evaluated on its scientific merits rather than on the basis of its funding sources.