Federal Trade Commission
Room H-159, 600307
RE: 16CFR Part 307
To Whom It May Concern:
This is in response to the request made by The Federal Trade Commission concerning Smokeless Tobacco. As a health educator in Yavapai County, Arizona, working in the tobacco education, prevention and cessation area, I am personally pleased to see the Commission looking for input and being thoughtful in the process of determining appropriate labeling. I would like to address the following approaches to this problem.
First of all, there seems to be total agreement in the scientific and medical communities that all tobacco products are extremely addictive, and laced with toxic and carcinogenic chemicals. There also is a body of evidence that demonstrates that youth are still the primary targets for these products.
I wish to point out that in the Commissions General Advertising Polices, the issue of deceptive and unfair advertising would appear to give a definitive answer to the question about labeling. All information that is included on any products packaging can be considered part of the advertising. By the definition given by the Commission it would seem that any product that can cause "substantial consumer injury which a consumer could not reasonably avoid, and is not outweighed by the benefit to consumers", falls under the Commissions Unfair Policy Statement of the Federal Trade Commission Act. What would the enforcement policy require? Would the product be taken off the market, modified or have a labeling requirement specified?
Additionally, what the advertisement or the product labeling does not say, or fails to include and leaves consumers with a misimpression about the product falls under the Deceptive Advertising provision of the Commission. There is nothing on any label of any tobacco product that lists the ingredients, not the least of which is nicotine, the most highly addictive drug known to humankind. The 4,000 chemicals, 50 of which are carcinogenic, are not listed or referred to in any way on the label or in any advertising. The "failure to include information leaves consumers with a misimpression about the product." In looking at any tobacco ad in any magazine, as example, the unmistakable impression is that using this product will help a person have more fun, be more "macho," have more adventure, and most likely look like the models used in the ads. Nowhere do these ads mention that the user will become addicted, get yellow teeth and nails from smoking, run a very high risk of mouth, esophageal, gum, stomach or lung cancer.
This omission would appear to be material, therefore leading to a possible material claim. We have seen several of these claims appearing in the court system. There are provisions from the Federal Drug Administration that requires the labeling of all ingredients in products that touch the skin or enter the mouth. Why is there no such requirement for tobacco products?
In a letter from the Commission, titled "FTC POLICY STATEMENT ON DECEPTION," addressed to The Honorable John D. Dingell, dated October 14, 1983, in response to the inquiry regarding the Commissions enforcement policies against deceptive acts or practices, reads some of the following information:
"Certain elements undergird all deception cases. First, there must be a representation, omission or practice that is likely to mislead the consumer."
" .the represenation, omission, or practice must be a "material" one." The basic question is whether the act or practice is likely to affect the consumers conduct or decision with regard to a product or service. If so, the practice is material, and the consumer injury is likely, because consumers are likely to have chosen differently but for the deception. In many cases, materiality, and hence injury, can be presumed from the nature of the practice. In other instances, evidence of materiality may be necessary."
"The Commission intends to enforce the FTC Act vigorously. We will investigate, and prosecute where appropriate, acts or practices that are deceptive "
In would seem apparent, therefore, that the FTC has the authority and the obligation to enforce its policies. One simple way to enforce these policies would be to require clear labeling of, at least a reasonable list of the ingredients in any given tobacco product in descending order. Perhaps this approach, coupled with a warning, that might read, "CARRIES HIGH RISK OF MOUTH, THROAT AND STOMACH CANCER," "THIS PRODUCT CARRIES A HIGH RISK OF GUM DISEASE AND TOOTH LOSS", and possibly photos similar to the new Canadian regulations, may be enough to deter young people. Perhaps it would keep adults from using a product that contains potential death.