Advertising claims for PhaseOut, a device marketed as helping smokers to stop smoking and making cigarettes less harmful are unsubstantiated, the FTC said today. The two companies that promoted this device, PhaseOut of America, Inc. and Products & Patents, Ltd., agreed to settle the FTC charges and will be prohibited from making unsupported representations about the product’s performance in the future. As part of the proposed settlement, the companies agreed to send a postcard to identifiable past purchasers of PhaseOut notifying them of the Commission’s action in this case and advising them that PhaseOut has not been proven to reduce the risk of smoking-related diseases or to make cigarettes "safer."
Using infomercials, as well as radio, television, catalog and Internet advertising, the companies have promoted PhaseOut as a “win-win” solution for smokers. According to the Commission’s complaint, the ads represented that PhaseOut substantially reduces harmful substances in cigarette smoke so that smokers can either quit easily or continue smoking less dangerous cigarettes.
"Because of the well-publicized health risks of smoking, it is understandable that smokers would be attracted to products and programs that are promoted as easy ways to quit smoking or reduce the danger of cigarettes," said Jodie Bernstein, the Director of the Commission’s Bureau of Consumer Protection. "Advertisers cannot take advantage of the desire that many smokers have to reduce those risks by making claims for which they have no reasonable basis. As the Surgeon General stated fifteen years ago, there is no safe cigarette. Consumers concerned about the health effects of smoking should quit. Our job is to make sure that advertisers who promote products to help them quit have reliable scientific evidence supporting their claims."
PhaseOut of America is located in Lynbrook, New York. Until recently, the company distributed PhaseOut pursuant to exclusive licensing agreements with Products & Patents, Ltd. PhaseOut is a plastic structure slightly larger than a pack of cigarettes. It contains a row of 20 needles activated by pressure on a hinged mechanism. The filter end of an unopened pack of cigarettes is inserted into the device, and the needles are depressed so that they puncture the cigarettes. PhaseOut retails for about $40.
According to the Commission’s complaint detailing the charges, the companies made unsubstantiated representations that PhaseOut reduces by certain specified percentages the amount of nicotine, tar, and carbon monoxide that smokers get, and does so without changing a cigarette’s taste or draw; and that smokers using PhaseOut will not compensate for its effects by increasing the number of cigarettes they smoke per day. The FTC also said that the companies did not have adequate substantiation for their representations that PhaseOut enables smokers to quit and to do so without withdrawal symptoms. In addition, the FTC challenged as unsubstantiated representations that PhaseOut significantly reduces the risk of smoking-related health problems, including lung cancer and heart disease, for smokers who continue to smoke and that PhaseOut also provides immediate health benefits including reduced congestion, coughing or shortness of breath.
The Commission also challenged claims that a study conducted at The Johns Hopkins University proves that PhaseOut significantly reduces the amount of tar, nicotine, and carbon monoxide smokers get under normal smoking conditions. According to the FTC, the study was conducted under laboratory conditions that did not reflect how smokers actually smoke. The FTC said that the study did not take into account compensatory smoking -- the tendency of some smokers who switch to lower yield cigarettes to smoke more intensively. If smokers engage in compensatory smoking (by, for example, taking bigger or more frequent puffs), they can get as much tar and nicotine from "low tar" cigarettes as from the "high tar" cigarettes they used to smoke.
The companies also allegedly claimed that the Johns Hopkins study proved PhaseOut was effective in enabling smokers to quit smoking, and that those people who continue to smoke PhaseOut-treated cigarettes significantly reduce their risk of smoking-related health problems.
The complaint alleges that the study does not, in fact, prove these claims.
The FTC also charged the companies with representing without substantiation that testimonials contained in advertisements for PhaseOut reflected the typical or ordinary experience of consumers who use the product.
In order to settle the agency’s charges, the companies agreed to the following:
The companies also would be prohibited from misrepresenting the existence, contents, validity, results, conclusions, or interpretations of any test or study. They also would be required to possess competent and reliable scientific evidence to substantiate claims that any endorsement reflects the typical or ordinary experience of consumers who use the product.
Finally, the companies must notify all PhaseOut purchasers who can be located about the settlement of the Commission’s charges. These consumers will receive a postcard informing them, among other things, that "PhaseOut has not been proven to reduce the risk of smoking- related diseases or to make cigarettes 'safer.’"
The Commission vote to announce the proposed consent agreement for public comment was 5-0.
A summary describing the consent agreement will appear in the Federal Register shortly and will be subject to public comment for 60 days, after which the Commission will decide whether to make it final. Comments should be addressed to the FTC, Office of the Secretary, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580.
NOTE: A consent agreement is for settlement purposes only and does not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $10,000.
The complaint, consent agreement, an analysis of the agreement to assist the public in commenting, as well as FTC news releases and other materials are available on the Internet at the FTC’s World Wide Web site at: http://www.ftc.gov -- or by calling 202-326- 3627. Copies of documents are also available from the FTC’s Public Reference Branch, Room 130, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580; 202-326- 2222; TTY for the hearing impaired 1-866-653-4261. To find out the latest news as it is announced, call the FTC NewsPhone recording at 202-326-2710.
Division of Advertising Practices
(FTC File No. 932 3180)