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Action on Smoking and Health (ASH) has filed a legal petition with the Federal Trade Commission (FTC). It asks the agency to require appropriate health warnings on the labeling and packaging of cigars, and in all advertisements for cigars.

YOU can help by contacting the following members of the FTC and telling them that you support the ASH petition for cigar labeling.

If you are a member of a recognized antismoking or tobacco-control organization, contact ASH to learn how your organization can be joined as a co- sponsor of the petition.

Below are the names, addresses, phone numbers, and fax number of the FIVE FTC Commissions. Follow that is a copy of ASH's petition for rulemaking.

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FTC COMMISSIONERS:

Mr. Robert Pitofsky 
Chair 
Federal Trade Commission 
FTC Building
Sixth Street and Pennsylvania Avenue, N.W. 
Washington, D.C.  20580
Phone (202) 326-2100
FAX (202) 326-3296

Mozelle W. Thompson
Commissioner
Federal Trade Commission 
FTC Building
Sixth Street and Pennsylvania Avenue, N.W. 
Washington, D.C.  20580
Phone (202) 326-3400
FAX (202) 326-3442

Mary L. Azcuenaga
Commissioner
Federal Trade Commission 
FTC Building
Sixth Street and Pennsylvania Avenue, N.W. 
Washington, D.C.  20580
Phone (202) 326-2145
FAX (202) 326-2446

Orson Swindle 
Commissioner
Federal Trade Commission 
FTC Building
Sixth Street and Pennsylvania Avenue, N.W. 
Washington, D.C.  20580
Phone (202) 326-2150
FAX (202) 326-3436 

Sheila F. Anthony
Commissioner
Federal Trade Commission 
FTC Building
Sixth Street and Pennsylvania Avenue, N.W. 
Washington, D.C.  20580
Phone (202) 326-2100
FAX (202) 326-3441

ASH's PETITION TO THE FTC:

Before the
FEDERAL TRADE COMMISSION
6th Street & Pennsylvania Ave. NW
Washington, D.C. 20580

In the Matter of the                ]
Sale and Advertising of Cigars      ]                                              
Without Any Warning of the Deadly   ]
Dangers of Using the Products       ]

TO PREVENT AN UNFAIR AND DECEPTIVE TRADE PRACTICE
BY REQUIRING HEALTH WARNINGS ON CIGAR LABELS
AND/OR OTHER PACKAGING,
AND IN ALL ADVERTISEMENTS FOR CIGARS

ABSTRACT

For the reasons set forth hereinafter, the sale and advertising of a product which has been shown by a just-released report of the National Cancer Institute (NCI) to be as dangerous to use as cigarettes -- i.e., cigars -- constitutes an unfair and deceptive trade practice which can be cured only by a rule requiring cigarette-like health warnings on cigar labels and/or other packaging, and in all advertisements for cigars. In 1964 the FTC determined that, in light of the Surgeon General's report on smoking, it was an unfair and deceptive practice to market cigarettes without appropriate health warnings.

Now, with the release of the NCI report, it would be even more deceptive to permit cigars to continue to be sold without similar warnings for these reasons:

1. Many people have always known -- both prior and subsequent to the release of the 1964 Surgeon General's Report -- that cigarette smoking was hazardous to health. But many people still believe that smoking a cigar is safe, especially because cigars -- unlike cigarettes and chewing tobacco -- carry no health warnings.

2. Studies show that many former cigarette smokers are switching to cigars in the mistaken belief that this substantially reduces the risk to their health.

3. More and more children, who are less sophisticated and therefore more in need of warnings than adults, are taking up cigars; this includes almost one- third of all teens!

4. Some cigar sellers make misleading statements minimizing cigars' health risks.

5. Since nicotine is a powerfully addictive drug, initial decisions to begin using cigars often may not be able to be reversed when knowledge of the dangers is later acquired.

6. Cigar smoke is even more hazardous to nonsmokers than cigarette smoke.

7. As FTC Chairman Robert Pitofsky has noted "I think what people will want to consider is the possibility of health warnings on packages of cigars that are similar to health warnings on cigarettes."

PETITION FOR RULEMAKING

Action on Smoking and Health (ASH) hereby petitions the Federal Trade Commission (FTC) to commence rulemaking proceedings under the Federal Trade Commission Act (15 U.S.C. 57a(b)) and 16 CFR 1.7 et seq.) to formulate rules which will require manufacturers and sellers of cigars -- which have now been shown to be as lethal for users as cigarettes -- to require appropriate cigarette-like warnings about the deadly health hazards of using the products, including warnings about the dangers of cigar smoke to nonsmokers.

RELIEF REQUESTED

ASH submits this petition under 16 CFR 1.9 as an "interested person" who is concerned that cigars are regularly advertised, shipped, and sold throughout the United States in interstate commerce, and that such acts constitute unfair and deceptive acts and practices in that there is no express or implied warning that the normal, customary, and recommended use of the products can and does cause death or disability to a very substantial percentage of the users, and that they are otherwise as lethal as cigarettes.

It is respectfully submitted that the material contained herein constitutes information which ASH wishes to make available to the Commission to indicate "a widespread pattern of unfair or deceptive acts or practices" within the meaning of 15 USC 57a(b)(3)(A).

For these and other reasons set forth herein, ASH requests the FTC to immediately commence rulemaking proceedings pursuant to 15 U.S.C. 57a(b) to require health warnings on cigar labels/packages and in all ads.

INTERESTS OF ACTION ON SMOKING AND HEALTH (ASH)

Petitioner Action on Smoking and Health is a national non-profit scientific and educational organization focusing on the problems of smoking, and protecting the right of non-smokers not to have to breathe in other persons' tobacco smoke. Upon information and belief its members include:

* persons who smoke cigars without being aware of the health risk;

* persons who smoke cigarettes and are likely to be tempted to switch to cigars because of a mistaken belief that they are substantially less hazardous;

* persons whose spouse or other person with whom they live smokes cigars in part because of ignorance of the dangers of the practice, and thereby subject the ASH member to the deadly dangers of secondhand cigar smoke;

* parents or guardians of young children who are tempted to experiment with cigar smoking based in part of the erroneous belief that it is safe, or at least substantially less hazardous that smoking cigarettes.

ASH and its Executive Director, John F. Banzhaf III, have brought and participated in many legal actions related to smoking, including:

* Banzhaf v. FCC, 405 F. 2d 1082 (D.C. Cir. 1968) (upholding FCC ruling that television and radio stations must provide substantial free time for anti-smoking messages);

* Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (3-judge, DC 1971), aff'd 405 U.S. 1000 (1972) (upholding the constitutionality of the statute banning cigarette commercials);

* ASH v. CAB, 699 F.2d 1209 (D.C. Cir. 1983) (requiring former Civil Aeronautics Board to adopt reasonable regulations for non-smoking sections on airplanes, since expanded to a ban on smoking on almost all domestic flights);

* ASH v. Lujan, Civ. Act. 91-0357 JGP (U.S. Dis. Ct. DC) (forcing U.S. Park Service to discontinue permitting cigarette promotions in U.S. park);

* Shimp v. New Jersey Bell Telephone Company, 368 A.2d 408 (1976) (first injunction ever obtained against smoking in a workplace);

* Pletten v Department of the Army, U.S. Merit Systems Protection Board Nos. CH07528010099, CH01520 2901 (1981) (establishing principle that persons sensitive to tobacco smoke are protected as "handicapped persons").

* ASH originally filed a petition with the FDA to regulate cigarettes on May 26, 1977, and appealed the FDA's denial of the petition. Action on Smoking and Health v. Harris, 655 F.2d 236 (D.C. Cir. 1980); thereby producing the legal principle under which the FDA decided to regulate nicotine in cigarettes as a drug. Moreover, in their recent unsuccessful law suit seeking to stop the FDA from asserting jurisdiction over tobacco products containing nicotine [Beahm v. U.S. FDA, 966 F. Supp 1374 (M,D. NC 1997, appeal docketed], the tobacco companies acknowledged the major role ASH's threats to sue the FDA if it did not act to regulate nicotine in cigarettes played regarding this matter [see paragraphs 61-63]. Indeed, as Ronald G. Chesemore, Associate FDA Commissioner for Regulatory Affairs acknowledged in his letter of May 16, 1997, the agency's action in deciding to regulate cigarettes (Docket No 95N-0253; 61 FR 44396) was based in substantial part on ASH's petitions in Docket No. 94P- 0077/CP1 and CP2.

BRIEF STATEMENT OF REASONS WHY HEALTH WARNINGS ARE NEEDED

In 1964 the FTC determined that, in light of the then-just-released Surgeon General's report on smoking, it was an unfair and deceptive practice for tobacco companies to market cigarettes without appropriate health warnings.

Now, with the release of the NCI report [CIGARS: Health Effects and Trends, Monograph 9], the same reasoning should apply even more forcefully [see below] than before. It is too well known to require citation that failure to warn about a non-obvious and serious danger of using a product constitutes an unfair and deceptive trade practice in violation of the FTC's statute. Indeed, one would have to think long and hard to find a more obvious, serious, and blatant unfair and deceptive trade practice than to widely advertise and sell a product without any warning that it will kill and/or disable a very substantial percentage of its purchasers who use it in a normal, customary, and recommended manner.

No one would doubt for a moment that a manufacturer which put on the market without any warning a candy, cereal, gum, mint, toothpaste, etc. which is likely to kill a substantial portion of its users would be guilty of a grossly unfair and deceptive trade practice. The same should also be true for cigars; a position which is strengthened by the following additional factors and arguments not applicable to the FTC's decision in 1964:
 

* 1. Many people have always known -- both prior and subsequent to the release of the 1964 Surgeon General's Report -- that cigarette smoking was hazardous to health. But most people still believe that smoking a cigar is safe, especially because cigars -- unlike cigarettes and chewing tobacco -- carry no health warnings. Thus, many persons are likely to assume from the strong health warnings found on all cigarettes and chewing tobacco, and the absence of any warnings on cigars, that cigars (unlike cigarettes and chewing tobacco) are not dangerous.

This is a perfectly logical assumption for which there is clear historical precedent. Many people -- adults as well as children -- for many years assumed that using chewing tobacco was safer than smoking cigarettes because the latter contained a health warning and the former did not. That was one of the principal reasons why warnings on chewing tobacco similar to those on cigarettes were eventually required. It is also the reason why the following was one of the three mandated health warnings: WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES.

If bottles of aspirin pills contained a warning that use of the product by children could contribute to Reye Syndrome and other pills containing substantial amounts of aspirin did not, many people would logically but incorrectly assume that the latter were safe to give to children. Similarly, if some brands of gasoline contained warnings about the dangers of inhaling the vapors and others did not, people would logically but incorrectly assume that it was safe to breathe the fumes of the latter. Exactly the same reasoning should apply to cigars, since many people apparently believe that cigar smoking is safer than cigarette smoking in part because of the absence of similar health warnings regarding the former product.
 

* 2. Studies show that many former cigarette smokers are switching to cigars in the mistaken belief that this substantially reduces the risk to their health. As the NCI Monograph reports, "as described earlier, a number of cigarette smokers may have switched to cigars in response to health warnings following release of the first Surgeon General's Report in the belief that smoking cigars resulted in lower disease risk (Chapter 2)." [at 10]

Thus, because of this incorrect but apparently wide-spread belief that cigar smoking is less dangerous than cigarette smoking, many people who do wish to reduce their risk of the many deadly diseases caused by cigarette smoking are being lulled into a false sense of confidence and are switching to cigars rather than quitting smoking. It is an unfair practice for cigar sellers to be able to capitalize on this desire for a healthier lifestyle by saying nothing in the face of this widespread and widely-known phenomena of switching. Thus the public health and public interest would be served by a requirement that labels on cigars state -- as currently required on labels for chewing tobacco -- WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES.
 

* 3. More and more children, who are less sophisticated and therefore more in need of warnings than adults, are taking up cigars. This currently includes almost one-third of all teens! More precisely, the Centers For Disease Control recently reported that an estimated 26.7% of all U.S. teenagers 14-19 (6 million) -- 37% (4.3 million) males and 16% (1.7 million) females -- smoked at least one cigar within the past year.

The FTC has long recognized and acknowledged -- as has the American public -- that children are more naive (if not gullible) and susceptible to misunderstandings regarding products than adults, and are therefore entitled under law to a greater degree of protection in the form of warnings, notices, and other requirements. With more than one-third of all teenage males, and almost over one-fourth of all teenagers now reportedly using cigars, the need for appropriate health warnings is even stronger than it is for adults.

It must also be noted that, at the time the FTC first concluded that health warnings were required on cigarette packages, widespread smoking of cigarettes by young children was not perceived to be a major problem. Thus the FTC apparently made its decision primarily based upon the informational needs of mature adults. Since we now know that smoking in general -- and cigar smoking in particular -- is a major and expanding problem among young people, the need for appropriate health warnings is even stronger.
 

* 4. It appears that some cigar sellers make misleading statements minimizing the health risks. For example, at the NCI Monograph states, "some in the cigar trade have made the claim that cigar smokers experience little or no increased disease risk" [at ii] Since it appears likely that the mistaken impression in the minds of many smokers about the relative safety of smoking cigars is caused at least in part by affirmative misrepresentations by the industry itself, the argument for requiring health warnings is correspondingly stronger.

While failure to disclose a material risk of using a product is by itself an unfair and deceptive trade practice, affirmative misrepresentations are even more so. Since it would obviously be impossible for the FTC to correct the problem by identifying all of those persons selling cigars who make such misrepresentations, and since many persons who have heard such misrepresentations will continue to act upon them even if the practice is discontinued in the future, the only appropriate remedy is to require clear and conspicuous health warnings on cigar labeling and packaging, and in all ads.

* 5. Since nicotine is a powerfully addictive drug, initial decisions to begin using cigars often may not be able to be reversed when knowledge of the dangers is later acquired. Thus, the need for clear, strong, and effective health warnings is even greater than with regard to a product which has no addictive constituents.

If it is learned that a toothpaste, chewing gum, candy, mint, face cream, or similar product presents serious health hazards, most people who are current users may logically be expected to cease using that product since it is an easy step to take. Similarly, if a tool, kitchen appliance, or other article of commerce presents dangers, users who subsequently become concerned about the danger can simply stop using it.

However, if a product contains an addictive drug, persons who once have begun using it may not be able to stop, or may be able to stop only with very great difficulty. Thus the need for a strong warning with regard to such a product is far greater than the need for a strong warning regarding a product where the user can easily quit using it.

The FDA, the U.S. Public Health Service, and the Surgeon General have all declared nicotine to be an addictive drug. For many it appears that nicotine can be as addictive as heroin. In any event, it is well known that many people find it nearly impossible -- or at least very difficult -- to give up smoking because of the addictive [dependence-creating] nature of nicotine.

The NCI Monograph warns that cigars can contain as much nicotine as may be found in an entire pack of cigarettes. Moreover, it says, the alkaline pH of cigar smoke facilitates absorption of nicotine. Finally, it concludes that "there is sufficient nicotine absorption among regular heavy cigar smokers to expect that nicotine dependence might develop, but studies to document the frequency or intensity of nicotine dependence have not been published" [at 191].

Thus, even though the subject has not been studied as extensively as with cigarettes, it is reasonable to be very worried that many cigar users are or may become dependent upon nicotine. To the extent that doubts about the addictiveness of cigars remain, they should be resolved in favor of public health by requiring warnings, rather than waiting while hundreds of thousands more users become addicted until the evidence is overwhelming and conclusive.

The NCI Monograph also concludes that "the current trend of adolescent cigar use generates a concern that prior low adult rates of developing dependence may not apply to cigar use begun during adolescence" [Ibid.] Thus, in view of the earlier cited study that more than 25% of all 14-19 year olds -- and more than 34% of such males -- have already begun smoking cigars, the risk of a serious dependency making quitting very difficult if not nearly impossible is even more serious.
 

* 6. Cigar smoke is even more hazardous than cigarette smoke to nonsmokers. Thus the effect of the unfair and deceptive trade practice of selling this lethal product without proper health warnings is not confined only to the users. Additional victims include a user's spouse and children, as well as anyone else who shares a home or apartment, a workplace, or even a seat at a bar with the cigar smoker. The presence of innocent third-party victims further strengthens the need for appropriate warnings.

The NCI Monograph reports that:

1. ETS [Environmental Tobacco Smoke] from cigar smoke is a major and increasing source of exposure to indoor air pollution.

2. When smoked in confined indoor spaces at typical smoking and ventilation rates, cigars may produce concentrations of certain regulated ambient air pollutants, including CO [Carbon Monoxide] and RSP [Respirable Suspended Particles], which can violate federal air quality standards and add to the level of these compounds already in the ambient air from other combustion sources.

3. Measurements of the CO concentration at a cigar party in a hall and at a cigar banquet in a restaurant showed carbon monoxide levels comparable to those observed on a crowded California freeway.

4. The smoking of one cigar generates more Respirable Suspended Particles (RSP) and Polycyclic Aromatic Hydrocarbons (PAH) than the smoking of one cigarette . . .

Thus the adverse health effects of not fully informing prospective purchasers of the dangers of cigar smoking includes many persons other than the cigar smoker himself. It is logical to assume that if some cigar smokers were effectively warned about the dangers of cigar use, they would quit or at least significantly moderate their use, and that such actions would significantly reduce the health risk to those around them. Similarly it is logical to assume that if some potential cigar smokers were effectively warned about the dangers of cigar use, they would not start, and that such actions would eliminate what would otherwise be a significant health risk to those around them.
 

* 7. As FTC Chairman Robert Pitofsky has noted "I think what people will want to consider is the possibility of health warnings on packages of cigars that are similar to health warnings on cigarettes" [quoted on SHOW: CNN MONEYLINE WITH LOU DOBBS, April 10, 1998; Friday 7:00 pm Eastern Time].

The Chairman is also subsequently quoted in today's Wall Street Journal as stating that: "My view is premised on the finding that regular cigar smoking can be as bad for you as cigarette smoking." "It makes sense to me to have mandatory warnings on cigars, and there should be appropriate restrictions on the advertising and promotion of cigars to underaged young people."

Thus, even as the NCI Report was being released, and prior to any opportunity for detailed study or legal research, the Chairman of the FTC immediately recognized the applicability of this report to the issue of warning notices, and the inescapable analogy to cigarettes. Thus the purpose of this document is to formally suggest to the FTC an action it should logically consider initiating on its own initiative, and to provide some immediate arguments and information to facilitate this task.

ASH respectfully notes that, in addition to whatever proposals the FTC may make to Congress, it has an independent legal obligation under its statute to take action under its existing powers and jurisdiction -- a move likely to provide even further encouragement and incentive for Congress to act. Moreover, the immediate initiation of a rulemaking proceeding would help to insure that the warnings would begin to appear without any unreasonable delay should Congress not be able to act upon this matter during the next several months. This, of course, could occur as a result of an already busy schedule during an election year, complications in dealing with one or more bills relating primarily to cigarettes, and other reasons.

SUMMARY AND CONCLUSIONS

In view of a report just issued by the National Cancer Institute showing that cigars are as lethal as cigarettes, Action on Smoking and Health (ASH) respectfully suggests that the Federal Trade Commission immediately begin a rulemaking proceeding to develop regulations requiring appropriate cigarette-like health warnings on all cigar packaging and labeling, as well as in all advertisements for cigars.

ASH respectfully suggests that the same reasoning which led the FTC to propose health warnings for cigarettes following the release of the 1964 Surgeon General's report on smoking cigarettes, and which ultimately led to required health warnings on both cigarettes and chewing tobacco, should apply in the instant situation. Indeed, ASH suggests that the additional factors and arguments listed below make the need for cigar health warnings even more compelling:

1. Many people have always known -- both prior and subsequent to the release of the 1964 Surgeon General's Report -- that cigarette smoking was hazardous to health. But many people still believe that smoking a cigar is safe, especially because cigars -- unlike cigarettes and chewing tobacco -- carry no health warnings.

2. Studies show that many former cigarette smokers are switching to cigars in the mistaken belief that this substantially reduces the risk to their health.

3. More and more children, who are less sophisticated and therefore more in need of warnings than adults, are taking up cigars; this includes almost one- third of all teens!

4. Some cigar sellers make misleading statements minimizing the health risks of smoking cigars.

5. Since nicotine is a powerfully addictive drug, initial decisions to begin using cigars often may not be able to be reversed when knowledge of the dangers is later acquired.

6. Cigar smoke is even more hazardous to nonsmokers than cigarette smoke.

7. As FTC Chairman Robert Pitofsky has noted "I think what people will want to consider is the possibility of health warnings on packages of cigars that are similar to health warnings on cigarettes."

While it is, of course, entirely appropriate for the FTC to make recommendations to Congress regarding the need for health warnings for cigars, it has independent power, jurisdiction, and responsibility under its statute to take action itself. Such action, especially if its proposes strong and effective health warnings, is likely both to encourage Congress to act, and to ensure that the warnings will appear without unnecessary delay should Congress be unable to act upon this matter because of time constraints, complications relating to a cigarette bill, or other reasons.

Monday, April 13, 1998

Respectfully submitted,

Professor John F. Banzhaf III, Esq., for
Action on Smoking and Health (ASH)
2013 H Street, N.W.
Washington, D.C. 20006
(202) 659-4310; http://ash.org

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