Hearing of the Senate Committee on Commerce, Science and Transportation- Accuracy of the FTC Tar and Nicotine Cigarette Rating System


Date: Nov. 13, 2007
Location: Washington, DC

Hearing of the Senate Committee on Commerce, Science and Transportation- Accuracy of the FTC Tar and Nicotine Cigarette Rating System


SEN. LAUTENBERG (D-NJ) (?): (In progress) -- determine which cigarettes to smoke. For example, cigarettes with a low tar FTC rating are marketed as light cigarettes. And that's what we're going to learn from today's hearing. Smokers believe that when they switch to a light cigarette, they're turning to a safer alternative than a regular cigarette. But that National Cancer Institute and other studies show that switching to a light cigarette may not only be as bad as a regular cigarette, but often it's worse for your health. I want to repeat that -- that a light cigarette can often be more deadly than a regular cigarette.

And addicted smokers are the victims of this deception. Now I too was a smoker, but fortunately my 10 year old daughter convinced me to stop. One day when I lit a cigarette at home, she said, and I quote her, "daddy, they told me at school that if you smoke that you get a black box in your throat. And I love you and I don't want you to get a black box in your throat." And it took me a couple days and that was the end of smoking.

And I know it's not easy to give it up. As I smoked in those years I kept thinking about giving it up and never quite making it. The reality is that most smokers are addicted to a drug, a drug called nicotine. And as we're going to learn in this hearing, it's the effect of nicotine on the brain that renders the FTC rating method inaccurate. The FTC employees the use of what some have called the smoking robot machine, and thanks to the Centers for Disease Control, we have a short video which I'd like to show you now. Now can the people sitting in the audience see this. It demonstrates the FTC method and the smoking robot.

Now when you look at these non-addicted machines, you don't get an accurate picture as to what really is happening. The machine smoking and the machine's life cycle is not affected, but the smokers do. The reality is that smokers don't smoke cigarettes like the machine, rather our brains manipulate puffing patterns to make sure the smoker takes in enough nicotine from every cigarette to soothe the addiction. And that's why many who switch from Marlboros to Marlboro Lights wind up getting more tar because they are taking longer and deeper puffs to bring in the same amount of nicotine that they get from a standard Marlboro cigarette.

And even the FTC has a knowledge that in its testing method that it doesn't work. In fact, in May 2000, the FTC put out a consumer alert about their tar and nicotine ratings which said, I quote here: "don't count on numbers and cigarette, tar and nicotine ratings can't predict the amount of tar and nicotine that you get." So the FTC was saying, essentially, don't pay attention to our own system. The FTC should not allow, therefore, this rating system to continue if it cannot stand behind it.

And big tobacco should not be able to hide behind the FTC method to justify the claim that light and low tar cigarettes are healthier. In 2005, in this committee, I tried to fix this problem and I brought an amendment to prohibit the tobacco companies from continuing to use the FTC method to justify health claims about their cigarettes. My amendment lost on a party line vote, and I'm hopeful that in the wake of this hearing that we can build momentum to finally tackle this problem seriously.

The issue of tobacco control is a critical issue for our country. Pardon me, tobacco related illnesses rob more than 400,000 Americans of their lives (Clears throat.) each and every year. And tobacco creates 89 billion dollars in annual health care costs. Now just last week the Center for Disease Control reported that recent declines in smoking have stopped. Now this is a disturbing development for America's public health. And as many know, I have a long history of trying to write sensible laws to try to help control the damage caused by tobacco use.

Now I wrote the law banning smoking on airplanes in 1987. That law changed our nation's culture about second hand smoke and helped usher in the smoke free revolution that we're now seeing across the country. And I'm proud that my home state of New Jersey recently passed a state wide law banning smoking in restaurants, bars, and work places. I also wrote law in 1989 that requires that all buildings that house federally funded programs for children maintain a smoke free environment and now we have another urgent tobacco problem to fix.

So I look forward to hearing the testimony from our witnesses today, and I'm pleased to be sitting here with a colleague and ally in this, the Ranking Member of the Commerce Committee, Senator Stevens.

SEN. TED STEVENS (R-AK): Thank you very much. I was trying to remember who was the author of the bill on federal buildings, you or me.

SEN. LAUTENBERG: It's alright.

SEN. STEVENS: I do thank you for holding the hearing and I think it's a-- a lot remains to be done in this area. The FTC uses the same rating system to measure tar, nicotine, and carbon monoxide; it's been using the same test for four years, so I'm told, and cigarette design has not remained the same during this period. There are concerns that have been expressed to us that consumers are being misled by the cigarette rating system that is currently in use as it relates to light and low tar cigarettes.

The test machine was not intended to imitate human smokers, yet that is how consumers are interpreting the test results. I look forward to hearing the witnesses today and I, unfortunately, have another meeting at 3:30, but I'm pleased you have held this hearing, Mr. Chairman.

SEN. LAUTENBERG: Thanks very much. Now I want to welcome our witnesses, but I also want to point out that both Altria -- formerly known as Philip Morris -- and RJ Reynolds were asked if they would testify today and they both refused. The committee's going to go forward nevertheless. What steps will be taken to gather information from these companies after this hearing. With that, I welcome our first panel.

We have Mr. William Kovacic, a commissioner on the Federal Trade Commission, Cathy Backinger, the acting chief of the Tobacco Control Research Branch of the National Cancer Institute, and Dr. David Ashley, the chief of the division of laboratory sciences at the Center for Disease Control and Prevention, and I thank you for joining us. Mr. Kovacic, you may begin. And please, we ask you to hold your testimony to five minutes, if you will.


SEN. LAUTENBERG: Thank you all each for your testimony. And not only did I marvel at the detail with which you reported your findings, but the fact that you were all able to come very close to the time mark that we had set down for you, and that deserves congratulation; I wish we could say the same for this side of the table.

To Mr. Kovacic, I think it's fairly clear that you said, and I just want to verify, that the FTC cigarette testing method is inaccurate at predicting the amount of tar and nicotine that a smoker would receive from a cigarette.

MR. KOVACIC: That's correct, Senator.

SEN. LAUTENBERG: Given that the FTC is not a scientific agency, should your agency continue to oversee these health ratings?

MR. KOVACIC: We think it would be much better, Senator, that that task be dedicated to one of our public institutions that has the deeper scientific expertise.

SEN. LAUTENBERG: Do you think that the ratings based on the FTC cigarette testing method is designed to deceive smokers into fully believing that their health is less harmed than when they use tar or light cigarette designations?

MR. KOVACIC: The rating system as it was designed was not designed to deceive. The assumption was that it would assist smokers who wanted to choose lower tar cigarettes in particular to select cigarettes that would give them a lower dosage of tar when they smoked. What is impressive from the testimony my colleagues and others in the work their institutions have done is that early assumptions did not take into account what's called the compensation effect; and I think the key question for all of us is whether there is any significant subset of users who do derive useful information from these standards and change their behavior in beneficial ways or whether, as I believe I interpret Dr. Backinger's findings in particular, that there's instances that the benefits are negligible.

SEN. LAUTENBERG: Would the FTC object if Congress prohibited tobacco companies from continuing to make claims based on the FTC method?

MR. KOVACIC: I would strongly prefer that there be a process that would ask whether first there is an alternative measurement that would be an improvement, but I think at a minimum the guidance that Congress might give that first to pursue alternatives it would be more informative. But if indeed there is a general conclusion assembling science that has been done in this area that the FTC method, as it's called, provides no benefits to consumers and indeed harms them, then that's the basis for prohibition.

SEN. LAUTENBERG: I go back to a time as Senator Stevens that we were taught to smoke by the military that the emergency rations had a sleeve of four cigarettes, essentially saying that tobacco's good for you, it calms the nerves, etcetera. That doesn't say that we were creating addicts. At the time, I served in the European theater, and I know that you served in the Pacific CBI -- right? -- that all the temporary camps that were used to receive soldiers in the European theater and the same one used to send them back home were named after cigarettes. There was Luck Strike and other camps there, OldGold (ph), etcetera. So we learned the easy way, though I'm sure it wasn't designed by the United States government to create these, but in fact that was the result.

Dr. Backinger, do you think that-- does the National Cancer Institute believe that the FTC method deceives smokers? You talked about the number of people who started originally smoking the light cigarettes and how much that market share has grown. Do you think that the program's designed to deceive people that end up smokers?

DR. BACKINGER: As outlined in monograph 13, the research has shown that the FTC numbers and the method does not provide meaningful information to consumers. The monograph also found through research analyzing tobacco industry documents that the tobacco manufacturers knew this.

SEN. LAUTENBERG: Is it appropriate to say that the continuation of the FTC method as a basis for light and low tar claims could lead more Americans to getting lung cancer?

DR. BACKINGER: The data does show from research that smokers who are health conscious and may otherwise have quit decided to smoke what was called light or low tar cigarettes and therefore thinking they were going to have reduced risk for lung cancer as well as other diseases, however that was not the case.

SEN. LAUTENBERG: In 2001 NCI found that the problems with the FTC cigarette testing method is an urgent health issue. Has any government agency that you're aware of acted upon those findings?

DR. BACKINGER: Since 2001 when the monograph was issued, NCI and other institutes at NIH have funded research to look into different test methods. And looking at laboratory methods to look at how smokers smoke under actual conditions, so the answer's yes.

SEN. LAUTENBERG: Dr. Ashley, just this is slightly repetitive, but I ask the question nevertheless. To clarify for the record, are light and low tar cigarettes as addictive as regular cigarettes in your judgment?

DR. ASHLEY: Using FTC method for measuring and recording nicotine, tar, carbon monoxide numbers did not reflect the way people actually smoke. Our research has shown that by using multiple methods, you get more information, you can get more data that tells you much of what the actual exposure of people is when they actually use cigarettes. And so it's important to be able to do that research and find out exactly what the levels are that people are actually exposed and not the way that machine makes that measurement.

SEN. LAUTENBERG: Might tobacco companies have manipulated cigarette design to affect the FTC results? They move things around within the cigarette itself to try and affect a less ominous result than we really believe is there?

DR. ASHLEY: I can't really speak to the motivations of the tobacco industry, but we do know that the design of the cigarette does greatly influence the measurements and the results that come from when you use the FTC method.

SEN. LAUTENBERG: Senator Stevens.


SEN. LAUTENBERG: I currently have a couple of questions that I would like to ask you. Dr. Ashley, last Thursday, the CDC found the number of smokers has remained the same over the last two years. We know that tobacco companies spent 13 billion dollars in 2005 on advertising and marketing, almost double that which they spent in 1998. Do you believe that the tobacco advertising increased in tobacco advertising is the reason that we're seeing this constancy of the population that is smoking?

DR. ASHLEY: I believe the CDC report concluded that fact is bottoming out and no longer decreasing is because of the decrease in money spent on tobacco control.

SEN. LAUTENBERG: In looking at testing machines and see how reliable they might be, I think the most reliable testing machines are humans. Is there sufficient confirmation of the relationship of cancer, heart problems, and other conditions that we can attribute directly to smoking? Dr. Backinger?


SEN. LAUTENBERG: Have we seen any tests related to the difference in the incidents of cancer, etcetera, from the light or however else they describe cigarettes and regular cigarettes? Is there a more frequent occurrence, can you say, using either the cigarette or the regular cigarette or the light cigarettes in terms of the people who use these things?

DR. BACKINGER: The studies that were conducted are epidemiological studies, population based. So we don't have data on individuals, per say, but overall people that smoke light or low tar cigarettes did not have a decrease in any of the disease risks and cancers from smoking as people that smoked regular cigarettes, conventional cigarettes.

SEN. LAUTENBERG: Thank you, all three of you, for your excellent testimony given in a very clear, unequivocating fashion. I appreciate that. Thank you, and we'll call the next panel, please to the table.

SEN. STEVENS: I said those two monographs; we would appreciate a copy.

DR. BACKINGER: Yes, I will follow up with that. Thank you.

SEN. LAUTENBERG: -- (In progress) -- the adjunct professor at Johns Hopkins University School of Medicine, Mr. Marvin Goldberg, a professor of marketing at Penn State University, and Mr. Stephen Sheller, the founder and the managing partner from the law firm of Sheller, P.C. And I thank all of you for joining us and sharing your views and expertise. And Dr. Samet, I ask you please to start.


SEN. LAUTENBERG: Thank you very much. I admire the candor that shows up here, and I don't want to show any bias. That's not senator- like --

MR. SHELLER: (Laughs.)

SEN. LAUTENBERG: -- but I also don't like the fact that somehow or other over 400,000 people a year die of direct smoking related disease. And so the costs for that and the anguish and the grief that occurs that when people's ability to function as they live as a result of having had a career in smoking, I'll call it, and then the cost for their unhealthiness is distributed among the population and runs close to $100 billion a year for that. It's a terrible thing to witness.

Dr. Samet, I think you said that switching to light low tar cigarettes doesn't cause fewer -- well, let me not put words in your mouth. The switching to light and low tar cigarettes actually caused fewer people to quit smoking.

DR. SAMET: So the concern is does the availability of products that are perceived as carrying a lower risk lead to switching? And I think that has been demonstrated to be the case for some proportion of smokers. The concern is that people might move to a lower yield product instead of doing what they should do, which is to quit, and there's some evidence that suggests that that can be the case.

SEN. LAUTENBERG: I think I noted in some information that people who would actually quit smoking for some time had come back to smoking based on the attraction that low tar offered at least in advertising -- do we have any information, any of you, of that happening?

MR. HENNINGFIELD: People are constantly coming back to smoking for a lot of reasons. The information that we do have is that when there are surveys, such as national telephone based surveys asking people what would attract them to smoking or coming back to smoking, what is attractive to people is cigarettes that appear to be safer. And this has been very scary from a public health perspective because when someone has quit, they're on the road to health. And it's terrible -- the idea that they might be lured back to smoking thinking that the products are substantially safer or flat out safe.

SEN. LAUTENBERG: Remind us -- how long have the tobacco companies been aware of the smoker compensation, the period of time when smokers that take longer, deeper puffs to compensate for lower amounts of nicotine?

MR. HENNINGFIELD: A number of us have looked at the documents. I testified in the Department of Justice trial, and since at least the 1970s, if not decades before, they understood that the --

SEN. LAUTENBERG: Mr. Sheller, do you have --

MR. SHELLER: Yes. Actually, it was before the consent decree in 1970 that they were so happy to -- no decree, voluntary agreement to use this deceitful trick. They were well aware of it, and they just decided it would be great --(laughter) -- as it's now another way that they've avoided responsibility. But you have the documents actually which were given in 19 -- as the discovery we did -- you know, they knew all about it. It's in evidence.

And time is -- as I said, it's no longer the FTC's turn. They've fumbled the ball. You know, your committee has to have oversight of them. They had the audacity to come in here today and tell you we may do something soon when we get -- we're not an expert in it. We don't know what we're doing. We need help from this one and that one. That's been their story for years. Put an end to it please.

SEN. LAUTENBERG: In earlier testimony regarding smoking and its cost, we found out that the awareness of the tobacco companies about the lethality of the product they were selling, the addiction of the product that they were selling, went back -- I believe it was the middle '30s when that information first was made available.


SEN. LAUTENBERG: And Dr. Henningfield, when switching to light cigarettes, do people -- are those smokers conscious of the fact that they're breathing deeper, that they're working harder to fulfill the need they feel to get the nicotine in their systems?

MR. HENNINGFIELD: Actually, to the contrary. A lot of people believe that they are actually inhaling something less toxic because it is smoother and cooler. In other words, the cigarette, which may be as deadly or more deadly, actually feels smoother and cooler by using chemicals like menthol, by using ventilation to cool the smoke. It's like putting a lot of alcohol with a fruit beverage. And so people are deceived in many different ways, and then with the marketing, of course.

MR. SHELLER: Yeah, I've called it strawberry syrup on strychnine. Poison.

SEN. LAUTENBERG: Sounds mild in your description. (laughs)

MR. SHELLER: (Laughs.)

MR. GOLDBERG: We actually have data that -- two thirds of smokers either don't know about the microvents, or don't know that they contribute to the amount of tar that they get.

SEN. LAUTENBERG: Yeah. Why are cigarettes allowed to use the word light without having any light benefit? Is that simply deceiving consumers while the government looks the other way? Dr. Henningfield?

DR. HENNINGFIELD: Well, I think it reflects -- I think regulation by the Federal Trade Commission -- this is not their area of competence. I do not believe that it was intentional, but this sort of regulation is bread and butter to agencies like the Food and Drug Administration, which sets standards for light products. And if you look at the food rule from the early 1990s, you see specific criteria for use of the term light. You see them saying you can't use the term ultra light because it's not meaningful. Then there are specific standards. Most of the cigarette companies sell other products, or the major ones, and often they sell Kraft cheese, for example, that is light. That cheese has to meet certain standards that are objective.

SEN. LAUTENBERG: My folks were able to dig out some packs of cigarettes.

I don't know whether all of you are aware, but we were able to persuade the Rules Committee to ban smoking, ban cigarettes throughout the capital, that's just taking place, and if anything, seemed kind of backward. Here we are preaching gospel, and downstairs they're selling the tools for addiction. And so we're -- as of I think the first of the year they will no longer be available there ourselves now, and I'm not advertising cigarettes at lower prices to clear out the inventory.

But all of these facts -- and I don't mean to pick out any of them, but the reference is surgeon general's warning: "Cigarette smoke contains carbon monoxide." Now, wouldn't you think that would scare the devil out of those people who are buying cigarettes? Carbon monoxide? (Say ?), you can get that from your car if you want it. And we have different packages. This one is -- they give it a number on this package. This is called Camel #9. Beautiful packaging, but carrying almost a lethal message. Here they're more specific. Surgeon general's warning: "Smoking causes lung cancer, heart disease, emphysema, and may complicate pregnancy."

This one really -- Mr. Sheller, you managed to I think get some justifiable anger about what we see, but here's this ad for Camels: "Light and luscious." Now --

MR. SHELLER: (laughs) You should see what they mail my daughter at home. I have a daughter who's at Temple University finishing up this year, is becoming a special ed teacher, and because she's over 21, somehow or other they found her. She doesn't smoke, but we get things in the mail -- I've been saving them -- that are mind-boggling from the cigarette companies.

SEN. LAUTENBERG: Yeah, well, we've learned a lot, but we haven't yet learned enough. And I'm hoping that we can use the knowledge that we've gained here today with your help to really do something about this.

MR.: Senator, if I could -- in response to -- when you say things like -- there are awful things like carbon monoxide, et cetera, we often think of this dispassionate person to whom the message is addressed, and as you've said, this is -- there's a wonderful study that shows when you show a Harvard-Yale football game way back in the '50s to Harvard and Yale people, they each tell you that the other side was terrible in terms of the penalties and infractions. They're committed to a particular perspective.

We'll, smokers are too. They're very committed. They're addicted. And so we're not talking about a reasonable person dispassionately considering -- (inaudible).

SEN. LAUNTENBERG: But we all remember when a doctor's use was advertised as preferring one cigarette to another.

MR.: Oh, yeah.

MR. SHELLER: With a white coat. (laughs)

SEN. LAUNTENBERG: I thank you all for your testimony. We're going to adjourn this hearing. And I note, Mr. Sheller, that your admonition -- that Congress should act swiftly --


SEN. LAUTENBERG: -- to stop allowing companies to make light and low tar claims based on the FTC method. We'll look at that very closely.

MR. SHELLER: Thank you, Senator Lautenberg.

SEN. LAUTENBERG: With that, the hearing is adjourned, and once again, thank you all.