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12/10/85 Federal Trade Commission v. Brown & Williamson Tobacco

December 10, 1985

FEDERAL TRADE COMMISSION

v.

BROWN & WILLIAMSON TOBACCO CORPORATION, APPELLANT APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CIVIL ACTION NO. 83-01940)



Before: EDWARDS, BORK and SCALIA, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1985.CDC.283

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge

The Federal Trade Commission brought this enforcement proceeding in the district court to enjoin the Brown & Williamson Tobacco Corporation from deceptively advertising the tar content of its Barclay king-size cigarettes. B & W advertises these cigarettes as being " *fn1 mg tar by a recognized method used by B & W and supported by independent laboratories." The FTC alleges that Barclay's advertising claim is false and deceptive and so violates section 5(a) of the Federal Trade Commission Act, 15 U.S.C. ยง 45(a) (1982). The district court agreed and enjoined B & W from advertising any tar number for its Barclay cigarettes without receiving prior FTC approval. Because we find the injunction broader than reasonably necessary to prevent deception, we remand to the district court to modify the injunction consistent with this opinion. I.

Since at least the mid-1950's the FTC has been concerned about the validity of tar and nicotine content claims in cigarette advertising. In 1955 the Commission published cigarette advertising guides advising manufacturers to make no representations about the tar and nicotine content of a cigarette that could not be supported with reliable scientific evidence. By the mid-1960's the FTC became concerned about the absence of a standard method for testing cigarette delivery of tar and nicotine. Accordingly, in 1967 the Commission adopted a testing method and began a program to analyze the tar and nicotine levels of each brand of cigarettes sold in the United States.

The test adopted by the FTC is known as the Cambridge Filter method and is used with minor variations throughout the world. The test utilizes a smoking machine that takes a 35 milliliter puff of two seconds' duration on a cigarette every 60 seconds until the cigarette is smoked to a specified butt length. The tar and nicotine collected by the machine is then weighed and measured. This provides an objective basis for assessing the relative amounts of tar and nicotine different cigarettes will deliver when they are smoked in the same way. The test does not measure the amount of tar or nicotine that any individual smoker may receive since that quantity will depend on individual smoking behavior.

In 1970, the FTC proposed a formal rulemaking in order to promulgate a Trade Regulation Rule requiring disclosure of FTC tar and nicotine ratings in cigarette advertising. Immediately following this proposal, five leading cigarette companies, including B & W, agreed among themselves to a voluntary disclosure plan (the "1970 agreement"). This plan provided that the cigarette manufacturers would disclose the tar and nicotine figures in all advertising for their cigarettes according to the most recently published Commission test results. Upon accepting the 1970 agreement, the FTC indefinitely suspended its rulemaking proceeding.

In January 1981, B & W introduced Barclay cigarettes to the national market. Barclays are ultra low tar cigarettes with an innovative filter design. B & W heavily promoted and advertised its king-size Barclays as 1 milligram ("mg") in tar, which is one of the lowest tar claims made for any cigarette. Pursuant to the 1970 agreement, all Barclay advertisements initially stated that the cigarettes were "1 mg 'tar,' 0.2 mg nicotine by the FTC method." Within six months the Barclay brand had captured more than one percent of the domestic cigarette market.

Shortly after introduction of Barclay, two of B & W's competitors, the R. J. Reynolds Tobacco Company and Philip Morris Incorporated, complained to the FTC that the 1 mg tar claim was inaccurate and misleading. They alleged that the Barclay filter differs from other filters so that "when the cigarette is smoked between human lips its air ventilation system is inevitably obstructed and the cigarette delivers disproportionately more tar and nicotine than other comparably rated cigarettes." Brief for FTC at 6. Because the FTC smoking machine does not reproduce the obstruction caused by human lips, B & W's competitors claimed that it did not accurately rate the Barclay. They also argued that other low tar cigarettes are not subject to this phenomena because they have a different filter design.

The Commission undertook a comprehensive inquiry to determine whether the Barclay cigarette was accurately rated by the current testing method. The Commission solicited evidence from all the major cigarette companies including B & W. In addition, three consultants were retained -- each an expert in the chemistry of tobacco use -- to assist in evaluating the evidence. The Commission did not otherwise engage in independent efforts to gather evidence or conduct studies but attempted to act as an impartial fact-finding body.

R. J. Reynolds and Philip Morris each submitted studies purporting to show that the tar and nicotine yield of Barclay cigarettes is increased when they are smoked by humans. B & W submitted contrary studies measuring smoke constituents in human plasma and purporting to show that Barclay's FTC ratings correctly reflected the amounts of tar and nicotine actually ingested by Barclay smokers as compared to smokers of competitive 1 mg tar cigarettes. The three FTC consultants -- evaluating the studies independently -- found that the Barclay cigarette is not properly ranked by the FTC testing method and yields substantially more tar than other comparably rated cigarettes when smoked by humans. Asked to estimate what Barclay's tar rating should be, the consultants gave amounts ranging from 3 mg to 7 mg. These estimates would still place Barclay in the ultra low tar range of cigarettes.

On June 25, 1982, the Commission announced its determination that the FTC testing method does not accurately measure the tar and nicotine delivery of the Barclay. The Commission directed B & W to refrain from relying on the FTC method to substantiate advertising claims concerning Barclay's tar content. The Commission announced that it would publish a notice in the Federal Register requesting comment on how to modify its test to rate the Barclay cigarette accurately. Before this could be done, however, B & W sued to enjoin the Commission from taking its proposed action on the ground that the FTC's exclusion of Barclay from its official testing and reporting program was procedurally and substantively improper. The district court for the Western District of Kentucky granted B & W a temporary restraining order against the FTC's proposed actions and against the publication of those actions in the Federal Register. When the district court in Louisville subsequently dismissed B & W's complaint because the FTC's actions were not final or reviewable, it entered a stay against the Commission pending B & W's appeal to the Sixth Circuit.

The Sixth Circuit dissolved the district court's stay and subsequently ruled for the FTC on the merits. See Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1595, 80 L. Ed. 2d 127 (1984). The FTC then published notice in the Federal Register seeking public comment on proposals to modify the present testing method and deleting the values listed for Barclay cigarettes in past reports. The Commission also retroactively amended its official December 1981 and March 1983 Tar and Nicotine Reports to delete Barclay's ratings.

B & W declined the FTC's suggestion that it alter its advertisements to use an estimated yield of 3 to 7 mg tar. Instead, B & W continued to label and advertise Barclays as 1 mg tar cigarettes and continued to state prominently that Barclays were "99% tar free" with "1 MG TAR." B & W did, however, revise its fine-print tar and nicotine legend to refer to "a recognized method used by B & W ...


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