Text from the Federal Register Notice
[Federal Register:
March 7, 2000 (Volume 65, Number 45)]
[Proposed Rules]
[Page 11944-11947]
From the Federal Register Online via GPO Access [http://www.gpoaccess.gov/fr/index.html]
[DOCID:fr07mr00-19]
FEDERAL TRADE
COMMISSION
16 CFR Part 307
Request for Comments
Concerning Regulations Implementing the Comprehensive Smokeless
Tobacco Health Education Act of 1986
AGENCY: Federal Trade
Commission.
ACTION: Request for
public comments.
SUMMARY: The Federal
Trade Commission (the "Commission'') is
[[Page 11945]]
requesting public
comment on its regulations ("smokeless tobacco regulations'' or "the
regulations'') implementing the Comprehensive Smokeless Tobacco Health
Education Act of 1986 ("Smokeless Tobacco Act''). The regulations
set forth the manner in which smokeless tobacco manufacturers, importers,
and packagers must display and rotate the three health warnings mandated
by the Smokeless Tobacco Act. As part of its systematic review of
all current Commission regulations and guides, the Commission is
requesting comments about the overall costs and benefits of the
regulations and their overall regulatory and economic impact. The
Commission is also requesting comment on whether the regulations
adequately implement the format and display requirements of the Smokeless
Tobacco Act and for comment on several other issues relating to specific
provisions of the regulations. All interested parties are hereby given
notice of the opportunity to submit written data, views and arguments
concerning the rule.
DATES: Comments must be
submitted on or before April 24, 2000.
ADDRESSES: Written
comments should be identified as "16 CFR Part 307'' and sent to the
Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Avenue,
N.W., Washington DC 20680. The Commission requests that the original
comment be filed with five copies, if feasible. The Commission also
requests, if possible, that the comments be submitted in electronic form
on a computer disc. (Programs based on DOS or Windows are preferred. Files
from other operating system should be submitted in ASCII test format.) The
disc label should identify the commenter's name and the name and version
of the word processing program used to create the document.
Alternatively, the Commission will accept comments
submitted to the following E-Mail address: "SMOKELESS@ftc.gov''.
All comments will be placed on the public record and
will be available for public inspection in accordance with the Freedom of
Information Act, 5 U.S.C. Sec. 552, and the Commission's Rules of
Practice, 16 CFR 4.11, during normal business days from 8:30 a.m. to 5:00
p.m., at the Public Reference Room, Room H-130, Federal Trade Commission,
600 Pennsylvania Avenue, NW, Washington DC 20580. In addition, comment
will be placed on the Internet at the FTC web site: http://www.ftc.gov.
FOR FURTHER INFORMATION
CONTACT: Rosemary Rosso (202) 326-3076, Division of Advertising Practices,
Bureau of Consumer Protection, Federal Trade Commission, Washington, DC
20580, E-Mail (for questions or information only): rrosso@ftc.gov.
SUPPLEMENTARY
INFORMATION: The current request for comments on the smokeless
tobacco regulations is part of the Commission's regulatory review program,
which has been implemented to review regulations and guides periodically.
The regulatory review program seeks information about the costs and
benefits of the Commission's rules and guides and their regulatory and
economic impact. The information obtained will assist the Commission in
identifying rules and guides that warrant modification or rescission.
Simultaneous with the regulatory review, the Commission is also seeking
public comments on whether the regulations adequately implement the format
and display requirements of the Smokeless Tobacco Act and for comment on
several other issues relating to specific provisions of the regulations.
A. Background
Information
The Smokeless
Tobacco Act was promulgated by Congress on February 27, 1986. The Act
requires manufacturers, importers and packagers of smokeless
tobacco products to display on a rotating basis one of the following
healthy warning labels on product packages and in most advertisements:
WARNING: THIS PRODUCT
MAY CAUSE MOUTH CANCER
WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS
WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES
For packaging, the Act
directs that these health warnings appear in a conspicuous and prominent
place on the package and in a conspicuous format that is in conspicuous
and legible type in contrast with all other printed material. For
advertising, the Act directs that the warnings be displayed in a
circle-and-arrow format in a conspicuous and prominent place and in
conspicuous, legible type in contrast to all other printed
materials.
The Act also directs the Commission to issue
implementing regulations governing the format and display of the statutory
health warnings on packaging and in most advertising for smokeless tobacco
products.
On November 4, 1986, the Commission promulgated
regulations specifying requirements as to the size, color, typeface,
placement and rotation of those warnings, 51 FR 40015. For the most part,
these provisions are set out as safe harbor provisions that state formats
or displays that will be deemed to be in conformance with the Smokeless
Tobacco Act rather than in terms of displays or formats that are required
to conform. The Commission's regulations require manufacturers, importers
and packagers to submit to the Commission for approval their plans for
complying with the requirements for the display and periodic rotation of
the three warnings.
The Commission amended its smokeless tobacco
regulations on March 20, 1991, 56 FR 11662.\1\ The 1991 amendments added a
requirement for display of the warnings on "utilitarian items,'' that is
items other than smokeless tobacco that are sold or given to
consumers for their personal use that display the name, logo, or selling
message of any smokeless tobacco product.\2\
\1\ The sections of the
regulations that deal with technical requirements for rotation of the
warnings also were amended several times, including on January 15, 1993,
58 FR 4874, and on August 30, 1996, 61 FR 45886.
In addition, the Commission currently has pending a
rulemaking to determine whether it should amend its regulations to require
rotational health warnings on sponsored racing vehicles and other
event-related objects that display the brand name, logo or selling message
of smokeless tobacco products. That rulemaking is on hold while Commission
staff evaluate regulatory and industry changes that have taken place since
this proceeding commenced.
\2\ The regulations as originally promulgated by the
Commission contained an exemption for utilitarian items. Subsequent
litigation required the Commission to delete the exemption. Public Citizen
v. FTC, 688 F. Supp. 667 (D.D.C. 1988), aff'd, 869 F.2d (D.C. Cir. 1989).
B. Issues for Comment
The
Commission is currently conducting a periodic review of the smokeless
tobacco regulations as part of its periodic review of all current
Commission rules and guides. Accordingly, the Commission is requesting
comments about the overall costs and benefits of the regulations and their
overall regulatory and economic impact. In addition, the Commission is
seeking public comment on the adequacy of the smokeless tobacco
regulations in implementing the format and display provisions of the Smokeless
Tobacco Act.
1. Effectiveness of the
Warning Requirements
For
labels, the regulations currently require that the warnings be displayed
in a conspicuous and prominent place on the label and provide examples of
[[Page 11946]]
places on the label of
different types of smokeless tobacco packages that will be deemed to be
conspicuous and prominent. For advertising, the regulations currently
require that the statutorily mandated circle-and-arrow warnings be in
conspicuous and legible type in contrast with all other printed material
and must appear in all capital letters in a circle-and-arrow format. The
regulations provide examples of display formats that will be deemed to
conform to these requirements.
The Commission is interested in public comment on the
effectiveness of the existing regulations in meeting the statutory format
and display requirements. In particular, the Commission would like to
receive comment on any consumer research, studies or other data bearing on
the effectiveness of the warning requirements.
2. Enforceability of
the Warning Requirements
Many
of the substantive provisions of the regulations are stated in terms of
safe harbors, or displays that will be deemed to be in conformance with
the Smokeless Tobacco Act, rather than as specific mandatory
requirements. The Commission is seeking public comment on whether this
safe harbor approach is sufficiently enforceable. In particular, the
Commission is interested in public comment as to whether the safe harbor
approach should be abandoned and if so, the costs and benefits of changing
to an alternative approach.
3. Smokeless Tobacco
Dispensers
Under the regulations
as currently drafted, rectangular dispensers of individual packages of smokeless
tobacco can display the label warning on any side of its packaging,
provided that the dispenser can be sold in its entirety and the warning is
the only printed or graphic matter on the side of the package where it
appears. 16 CFR 307.6(a). It has recently come to the Commission's
attention that this provision is being used to justify placement of the
label warning on the back of dispensers commonly used as displays for the
retail sale of individual packages of smokeless tobacco products.
In this location, the warnings are not visible to the viewing public.
Accordingly, the Commission is seeking comment as to
whether this provision of the Regulations should be revised to provide
that any dispenser of individual smokeless tobacco packages that
can be used as a retail display carry the label warning on its principal
display panel.
4. Can Rolls
Section 307.6(b) of the regulations currently provides that can rolls
wrapped for sale as a single unit display a warning in 12-point type if
the warnings on the individual cans in the roll are not completely
visible. The warnings on the individual cans typically would be in 7\1/2\
point type under the current regulations. One manufacturer has taken the
position that the larger 12-point type requirement does not apply to can
rolls consisting of only two cans. The Commission is interested in public
comment on whether this provision should be amended to make it clear that
the provision for a larger warning applies to any can roll consisting of
two or more cans that are wrapped for sale as one unit if the warnings on
the individual cans are not completely visible.
C. Request for Comments
At
this time, the Commission is seeking comment on various aspects of the smokeless
tobacco regulations in conjunction with its regulatory review. Without
limiting the scope of issues it is seeking comment on, the Commission is
particularly interested in receiving comments on the questions that
follow. Where commenters advocate changes to the regulations, please be
specific in describing suggested changes. With respect to suggested
changes to the regulations, please describe any potential costs and
benefits such changes might have on industry and consumers. The Commission
would also be interested in commenters providing any consumer research,
studies or data that exist on issues raised in the questions.
1.
Is there a continuing need for the regulations as currently promulgated?
(a) Since the regulations were issued, have changes in
technology, industry structure or economic conditions affected the need
for or effectiveness of the regulations?
(b) Do the regulations include provisions that are
unnecessary?
(c) What are the aggregate costs or benefits of the
regulations?
(d) Have the costs or benefits of the regulations
dissipated over time?
2. What effect, if any, have the regulations had on
smokeless tobacco purchasers, potential purchasers or the general public?
(a) What benefits have the regulations provided to
smokeless tobacco purchasers, potential purchasers or the general public?
(b) What economic or other costs have the regulations
imposed on smokeless tobacco purchasers, potential purchasers or the
general public?
(c) What changes, if any, should be made to the
regulations to increase the benefits to smokeless tobacco purchasers,
potential purchasers or the general public?
(d) How would these changes affect the compliance costs
the regulations impose on industry?
3. What impact, if any, have the regulations had on
firms that must comply with it?
(a) What economic or other costs have the regulations
imposed on industry or individual firms?
(b) What benefits have the regulations provided to the
industry or to individual firms?
(c) What changes, if any, should be made to the
regulations to minimize any burden or cost imposed on industry or
individual firms?
(d) How would the changes affect the benefits provided
by the regulations to smokeless tobacco purchasers, potential
purchasers, the general public or industry?
4. Do the regulations overlap or conflict with any
federal, state or local laws or regulations?
5. What significant burdens or costs, including costs
of compliance, have the regulations imposed on small firms subject to
their requirements?
(a) How do these burdens or costs differ from those
imposed on larger firms subject to the regulations' requirements?
(b) What changes, if any, should be made to the
regulations to reduce the burdens or costs imposed on small firms?
(c) How would these changes affect the benefits of the
regulations?
(d) Would such changes adversely affect the competitive
position of larger firms?
Section 307.6
Requirements for Disclosure on the Label
6.
If the regulations are retained, are the size, color, typeface, or
placement requirements sufficiently conspicuous and prominent within the
meaning of section 3(b) (1) of the Smokeless Tobacco Act, 15 USC
4402(b) (1)? What evidence is there to show that the existing label
disclosure requirements are or are not conspicuous or prominent or
otherwise effective or ineffective?
Sections 307.7, 307.8
and 307.9 Requirements for Disclosure in Advertising
7.
If the regulations are retained, are the size, color, typeface, or
placement requirements sufficiently conspicuous and prominent within the
meaning of section 3(b)(2) of the Smokeless Tobacco Act, 15 USC
4402(b)(2)? What evidence
[[Page 11947]]
is there to show that
the existing advertising disclosure requirements are or are not
conspicuous or prominent or otherwise effective or ineffective?
Enforceability of the
Regulations
8.
Many of the substantive provisions of the regulations are stated in terms
of safe harbors, or displays that will be deemed to be in conformance with
the Smokeless Tobacco Act, rather than as specific mandatory
requirements. Are the regulations in this form sufficiently enforceable?
Does this make it more difficult to prove that displays that do not
conform to the safe harbors are not sufficiently conspicuous to conform to
the requirements of the Smokeless Tobacco Act? Should the safe
harbor approach be abandoned?
Smokeless
Tobacco Dispensers
9.
Should the regulations be revised to provide that any dispenser of
individual smokeless tobacco packages that can be used as a retail
display carry the advertising warning on its principal display panel?
Can Rolls
10.
Should the regulations be amended to provide that a can roll of individual
smokeless tobacco packages can consist of as few as two cans?
11. Are there any other provisions of the regulations
that need to be amended? If so, which provisions require change and how
should they be changed?
12. What is the likely effect of any changes in the
regulations suggested in response to questions 6 through 11 on costs,
profitability, competitiveness, or employment in small business entities?
13. The Smokeless Tobacco Act requires that smokeless
tobacco companies submit plans to the Commission specifying the method
they will use to rotate, display, and distribute the required health
warnings on their packaging and advertising. Making changes suggested in
the regulations in response to questions 6 through 11 may require the smokeless
tobacco companies to amend their plans for the display and rotation of the
warning statements. What paperwork or other burdens would be imposed by
any changes suggested in response to questions 6 through 11?
List of Subjects in 16
CFR Part 307
Health warnings, Smokeless tobacco, Trade practices.
Authority: 15 U.S.C.
1401-1410.
By
direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 00-5506 Filed 3-6-00; 8:45 am]
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