[Federal Register Volume 61, Number 235 (Thursday, December 5, 1996)] [Notices] [Pages 64526-64527] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-30943] ----------------------------------------------------------------------- FEDERAL TRADE COMMISSION [File No. 932-3180] Phaseout of America, Inc.; Products & Patents, Ltd.; Analysis To Aid Public Comment AGENCY: Federal Trade Commission. ACTION: Proposed consent agreement. ----------------------------------------------------------------------- SUMMARY: In settlement of alleged violations of federal law prohibiting unfair or deceptive acts or practices and unfair methods of competition, this consent agreement, accepted subject to final Commission approval, would require, among other things, the Lynbrook, New York-based company to possess competent and reliable scientific evidence to substantiate all claims about the performance, efficacy, or benefits of any smoking-cessation or cigarette-modification product. The agreement also prohibits the company from making claims challenged as false in the future. The agreement settles allegations that advertising claims for PhaseOut, a device marketed as helping smokers to stop smoking and making cigarettes less harmful are unsubstantiated. DATES: Comments must be received on or before February 3, 1997. ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580. FOR FURTHER INFORMATION CONTACT: Lesley Anne Fair, Federal Trade Commission, S-4002, 6th and Pennsylvania Ave., NW, Washington, DC 20580. (202) 326-3081. Shira Modell, Federal Trade Commission, S-4002, 6th and Pennsylvania Ave., NW, Washington, DC 20580. (202) 326-3116. SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46, and Section 2.34 of the Commission's Rules of Practice (16 CFR 2.34), notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of sixty (60) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the accompanying complaint. An electronic copy of the full text of the consent agreement package can be obtained from the Commission Actions section of the FTC Home page (for November 14, 1996), on the World Wide Web, at ``http://www.ftc.gov/os/actions/htm.'' A paper copy can be obtained from the FTC Public Reference Room, Room H-130, Sixth Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580, either in person or by calling (202) 326-3627. Public comment is invited. Such comments or views will be considered by the Commission and will be available for inspection and copying at its principal office in accordance with Section 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR 4.9(b)(6)(ii)). Analysis of Proposed Consent Order To Aid Public Comment The Federal Trade Commission has accepted an agreement to a proposed consent order from Phaseout of America, Inc. and Products & Patents, Ltd. This matter concerns advertising for PhaseOut, a device which punches one or more small holes in cigarettes and which was advertised as both aiding in smoking cessation and making cigarettes less harmful. The proposed consent order has been placed on the public record for sixty (60) days for reception of comments by interested persons. Comments received during this period will become part of the public record. After sixty days, the Commission will again review the agreement and the comments received and will decide whether it should withdraw from the agreement or make final the agreement's proposed order. The Commission's complaint in this matter challenges three sets of representations made by respondents regarding the performance of PhaseOut: its ability to reduce smokers' intake of smoke constituents, allow smokers to quit smoking, and reduce health risks for smokers who continue smoking. According to the Commission's complaint, the respondents made unsubstantiated representations that PhaseOut reduces by certain specified percentages the amount of nicotine, tar, and carbon monoxide that smokers, get, and does so without changing a cigarette's taste or draw; and that smokers using PhaseOut will not compensate for its effects by increasing the number of cigarettes they smoke per day. The complaint also alleges that the respondents misrepresented that a particular study conducted at The Johns Hopkins University proves that PhaseOut significantly reduces the amount of tar, nicotine, and carbon monoxide smokers get under normal smoking conditions. According to the complaint, the study was conducted under carefully controlled conditions that did not reflect how smokers actually smoke. The complaint explains that the study did not take into account compensatory smoking--the tendency of some smokers who switch to lower yield cigarettes to smoke more cigarettes or to smoke each one more intensively (e.g., taking bigger or more frequent puffs), often without realizing it. The complaint further alleges that the respondents made unsubstantiated representations that PhaseOut enables smokers to quit and to do so without withdrawal symptoms; and that the respondents falsely claimed that PhaseOut's effectiveness in enabling smokers to quit smoking is proven by the Johns Hopkins study. The complaint also alleges that the respondents made unsubstantiated representations that PhaseOut significantly reduces the risk of smoking-related health problems, including lung cancer and heart disease, for smokers who continue to smoke and that it also provides immediate health benefits including reduced congestion, coughing or windedness. The complaint further challenges the related misrepresentation that the Johns Hopkins study proves that smokers who use PhaseOut and continue to smoke significantly reduce their risk of smoking-related health problems. In addition, the complaint alleges that the respondents represented without substantiation that testimonials contained in advertisements for PhaseOut reflect the typical or ordinary experience of consumers who use the product. The proposed consent order contains provisions designed to remedy the violations charged and to prevent the respondents from engaging in similar acts and practices in the future. Part I of the order prohibits the respondents from making the representations challenged as false in the proposed complaint about the Johns Hopkins study's findings concerning PhaseOut. [[Page 64527]] Part II requires respondents to possess competent and reliable scientific evidence to substantiate claims that any smoking-cessation or cigarette-modification product: (A) reduces the amount of nicotine, tar, carbon monoxide, or any other component of cigarette smoke that smokers get from smoking a cigarette; (B) is effective in enabling or helping smokers to quit smoking; (C) reduces the risk of smoking- related health problems for smokers who continue to smoke; (D) reduces the amount of nicotine, tar, carbon monoxide, or any other component of cigarette smoke that smokers get without changing a cigarette's taste or draw; (E) is effective in enabling or helping smokers to quit smoking without withdrawal symptoms; or (F) provides immediate health benefits, such as reduced congestion, coughing or windedness, for smokers who continue to smoke. Part II also requires respondents to possess competent and reliable scientific evidence to substantiate claims that smokers using any such product will not compensate for the product's effects by increasing the number of cigarettes they smoke per day. Part III requires respondents to possess competent and reliable scientific evidence to substantiate any performance, benefit or efficacy claims for smoking-cessation or cigarette- modification products. Part IV prohibits the respondents from misrepresenting the existence, contents, validity, results, conclusions, or interpretations of any test or study. Part V requires respondents either to possess competent and reliable scientific evidence to substantiate claims that any endorsement reflects the typical or ordinary experience of consumers who use the product; or to clearly and prominently disclose either: a) what the generally expected results would be, or b) that consumers should not expect to experience similar results. Part VI requires respondents to send a postcard to identifiable past purchasers of PhaseOut notifying them of the Commission's action in this case and advising them that PhaseOut has not been proven to reduce the risk of smoking-related diseases or to make cigarettes ``safer.'' Part VI also requires respondents to send a letter to their purchasers for resale requesting the names and addresses of their customers and notifying them that if the purchasers for resale do not stop using advertising and promotional materials containing claims covered by this order, the respondents are required to stop doing business with them. Part VII requires the respondents to maintain for five years copies of all communications with consumers and purchasers for resale pursuant to the terms of Part VI. The proposed order also requires respondents to maintain materials relied upon to substantiate the claims covered by the order, to distribute copies of the order to certain current officers and employees, to notify the Commission of any changes in corporate structure that might affect compliance with the order, and to file one or more reports detailing compliance with the order. The order also contains a provision stating that it will terminate after twenty (20) years absent the filing in federal court, by either the United States or the FTC, of a complaint against the respondents alleging a violation of the order. The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and proposed order, or to modify any of their terms. Donald S. Clark, Secretary. [FR Doc. 96-30943 Filed 12-4-96; 8:45 am] BILLING CODE 6750-01-P