[Federal Register Volume 88, Number 171 (Wednesday, September 6, 2023)]
[Notices]
[Pages 60941-60943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19185]
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FEDERAL TRADE COMMISSION
Agency Information Collection Activities; Proposed Collection;
Comment Request
AGENCY: Federal Trade Commission.
ACTION: Notice.
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SUMMARY: In accordance with the Paperwork Reduction Act of 1995
(``PRA''), the Federal Trade Commission (``FTC'' or ``Commission'') is
seeking public comments on its proposal to seek Office of Management
and Budget (``OMB'') clearance for information collection requirements
contained in the Federal Cigarette Labeling and Advertising Act, which
requires the FTC to review plans for the rotation of health warnings on
cigarette packaging and advertising. The proposed clearance request
will be submitted to OMB for review following this opportunity for
public comment. The current clearance expires on January 31, 2024, and
the FTC intends to seek OMB renewal for three years.
DATES: Comments must be received on or before November 6, 2023.
ADDRESSES: Interested parties may file a comment online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write: ``Surgeon General's
Cigarette Health Warnings: Paperwork Comment, FTC File No. P854505'' on
your comment, and file your comment online at https://www.regulations.gov by following the instructions on the web-based
form. If you prefer to file your comment on paper, mail your comment to
the following address: Federal Trade Commission, Office of the
Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J),
Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Shira Modell, General Attorney,
Division of Advertising Practices, Bureau of Consumer Protection, (202)
725-2162, [email protected].
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1331
et seq. (2006 ed.) (``FCLAA''), prohibits cigarette manufacturers and
importers from manufacturing, packaging, importing for sale, or
distributing cigarettes within the United States unless the packages
bear one of four statutorily-prescribed Surgeon General's health
warnings. 15 U.S.C. 1333(a). Cigarette advertising by any of these
entities must also bear statutorily-prescribed health warnings. Id.
Section 1333(b) sets forth the location and format requirements for the
health warnings on both packaging and advertising.
The FCLAA further provides that the health warnings ``shall be
rotated by each manufacturer or importer . . . quarterly in alternating
sequence on packages of each brand of cigarettes manufactured by the
manufacturer or importer and in the advertisements for each such brand
of cigarettes in accordance with a plan submitted by the manufacturer
or importer and approved by the Federal Trade Commission.'' 15 U.S.C.
1333(c)(1).
The FCLAA does provide an alternative to the requirement of
quarterly rotation on cigarette packaging for manufacturers and
importers whose sales satisfy two criteria.\1\ These manufacturers and
importers can seek approval to display the Surgeon General's warnings
on a particular cigarette brand style \2\ ``an equal number of times
within the twelve-month period beginning on the date of the approval by
the Commission of the application'' (hereinafter referred to as
``equalization''). 15 U.S.C. 1333(c)(2)(C). In order to qualify for
equalization, the sales of a manufacturer or importer must meet the
following two criteria:
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\1\ There is no comparable alternative to quarterly rotation for
cigarette advertising.
\2\ The statute defines ``brand style'' as ``a variety of
cigarettes distinguished by the tobacco used, tar and nicotine
content, flavoring used, size of the cigarette, filtration on the
cigarette, or packaging.'' 15 U.S.C. 1332(8).
(i) the number of cigarettes of such brand style sold in the
fiscal year of the manufacturer or importer preceding the submission
of the application is less than one-fourth of 1 percent of all the
cigarettes sold in the United States in such year, and
(ii) more than one-half of the cigarettes manufactured or
imported by such manufacturer or importer for sale in the United
States are packaged into brand styles which meet the requirements of
clause (i).
15 U.S.C. 1333(c)(2)(A). A manufacturer or importer can seek
permission to equalize the display of the warnings on some of its brand
styles, even if other brand styles do not qualify for equalization and
are therefore subject to quarterly rotation.
Pursuant to the FCLAA, cigarette manufacturers and importers submit
plans to the Commission explaining how they intend to comply with the
statutory requirement to display the Surgeon General's warnings on
their packaging.\3\ If the company will be rotating the warnings on a
quarterly basis, its plan must identify each of its brands and brand
styles and include a schedule (or other explanation) showing the
warning that will be assigned to each brand during each quarter of the
year. The company must also specify when in the manufacturing process
it will consult its rotation schedule for that particular brand in
order to assign the appropriate quarterly warning.
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\3\ Manufacturers and importers must also submit samples of
actual packaging for any new cigarette brands or brand styles, or
samples of new packaging for existing brands or brand styles.
However, this requirement is not subject to clearance under the
Paperwork Reduction Act (``PRA''). Such packaging samples do not
constitute ``information'' for purposes of the PRA because they
merely constitute ``samples of . . . physical objects.'' See 5 CFR
1320.3(h)(2). Accordingly, the burden associated with the submission
of any such samples is not reflected in the Commission's burden
analysis below.
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If the company wishes to use the option provided by section
1333(c)(2) and display the four warnings an equal number of times
during the year on the packaging of certain brand styles, its plan must
provide information sufficient to show that its sales satisfy both of
the criteria in 15 U.S.C. 1333(c)(2)(A). It must also explain how it
will ensure that all four warnings will be equally displayed during the
one-year period beginning on the date the plan is approved--for
example, by using printing plates that produce an even number of all
four warnings simultaneously on each print run. Finally, because the
statute authorizes approval for equalization only for one year, see 15
U.S.C. 1333(c)(2)(C), the
[[Page 60942]]
manufacturer or importer must submit a new plan annually demonstrating
that its sales continue to qualify for equalization.
Manufacturers and importers who intend to engage in advertising
must provide the Commission with a rotation schedule for the four
statutorily-prescribed warnings for each brand they intend to
advertise. They also must provide an example of each of the warning
statement formats they will use, which vary based on the size of their
advertisement,\4\ and specify how they will determine which warnings
will appear on different kinds of advertisements and how they will
handle advertisements that feature more than one of the company's
brands.
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\4\ The formats and sizes of the warnings that the Commission
uses to enforce the requirements for advertisements are set forth in
acetate exhibits. Electronic versions of the acetates with the
required warning statement formats are available on the Commission's
website.
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Since the information collection is statutorily prescribed, the
need for OMB clearance was not necessarily apparent.\5\ Nonetheless,
the FTC recently decided to obtain OMB clearance for this statutorily-
mandated information collection. Accordingly, on July 28, 2023, the FTC
obtained OMB's approval of an expedited provisional clearance for this
information collection (OMB Control Number: 3084-0175, Title:
Information Collection under the Federal Cigarette Labeling and
Advertising Act), and, under 5 CFR 1320.13(d), a waiver of the
requirement to publish a notice of the emergency clearance request. As
required by section 3506(c)(2)(A) of the PRA, the FTC is providing this
opportunity for public comment before submitting the information
collection to OMB for its nonprovisional clearance.
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\5\ An agency's failure to obtain OMB clearance for a
statutorily-mandated information collection requirement does not
appear to excuse a respondent's failure to comply with the
requirement. Accord 5 CFR 1320.6(e) (establishing that, for purposes
of information collection requirements that are imposed by statute,
an agency's failure to comply with the requirements of the PRA does
not amount to a defense against the assessment of a penalty); U.S.
v. Ionia Management S.A., 498 F. Supp. 2d 477, 489 (D. Conn. 2007)
(discussing that, for purposes of information collection
requirements that are imposed by statute, an agency's failure to
comply with the requirements of the PRA does not excuse a person's
failure to comply with the requirement).
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B. Burden Statement
Affected Public: Private Sector: Businesses and other for-profit
entities.
Estimated Annual Burden Hours: 336.
Estimated Annual Labor Costs: $23,382.
Estimated Annual Non-Labor Costs: $0.
I. Estimated Burden Hours
FTC staff's estimate of the burden hours is based on the time
required for an applicant to prepare a plan seeking the Commission's
approval for display of the Surgeon General's health warnings on its
packages and advertising (assuming it plans to engage in advertising).
During the period from 2020 to 2022, the Commission approved a total of
124 plans. In 2022, all 44 of the plans approved by the Commission
included a request for equalization of the warning labels on at least
some brand styles, and thus, the submission of sales information for
those brand styles.
Manufacturers and importers who are approved for quarterly rotation
of the warnings on their packaging do not have to submit new plans
unless and until they intend to add new brands or brands styles or new
types of advertising to their existing plans. As explained above,
manufacturers and importers that are approved to use the alternative to
quarterly rotation on their packaging must refile each year so the
Commission can assess whether they remain eligible to equalize the
warnings. They also must file new plans if they add new brands or brand
styles to their existing plans; once the company has obtained approval
for its initial plan, however, it should need less time in subsequent
years to prepare those updates. Moreover, the sales information
required to prove eligibility for the alternative to quarterly rotation
is readily available to the applicant.
FTC staff recognizes that preparation of a plan by a manufacturer
or importer that has not previously submitted one will take somewhat
more time than either preparation of essentially the same plan with
updated sales figures in subsequent years, or preparation of a very
similar plan that modifies a previously-approved plan (e.g., adding new
brand styles). However, plans can be short (e.g., 2-page) letters, and
numerous examples of plans already approved by the Commission are
available on the Commission's website. Thus, as an approximation, FTC
staff believes that, on average, each submission will take respondents
8 hours to prepare and submit. As FTC staff receives, on average, 42
responses related to the FCLAA's information collection requirements
per year, this yields an annual burden of 336 hours (42 responses x 8
hours per response).
2. Estimated Annual Labor Costs
FTC staff's experience is that most of the plans it receives are
submitted by, or on behalf of, relatively small companies (as evidenced
by the fact that all of the plans received in 2022 included requests
for label equalization). Roughly half of the plans are submitted by
non-legal company personnel, the other half by attorneys. FTC staff is
assuming an average $69.59/hour wage, based on mean hourly wages listed
by the U.S. Bureau of Labor Statistics 2022 Occupational Employment and
Wage Statistics for lawyers ($80.11) and general and operations
managers ($59.07).\6\ Using this figure, this yields a burden of
$23,382 per year (336 hours x $69.59).
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\6\ This is derived from the average of the U.S. Bureau of Labor
Statistics Occupational Employment and Wage Statistics (May 2022)
hourly wages for lawyers/legal services ($80.11) and general and
operations managers ($59.07), as roughly half of the plans submitted
to the Commission are signed by attorneys and half by non-attorneys.
https://www.bls.gov/oes/current/oes_stru.htm (Tables 23-1011, 11-
1021).
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3. Estimated Annual Non-Labor Costs
FTC staff believes that the capital or other non-labor costs
associated with the information requests are minimal.
C. Request for Comment
Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invites
comments on: (1) whether the disclosure and recordkeeping requirements
are necessary, including whether the information will be practically
useful; (2) the accuracy of our burden estimates, including whether the
methodology and assumptions used are valid; (3) ways to enhance the
quality, utility, and clarity of the information to be collected; and
(4) ways to minimize the burden of the collection of information.
For the FTC to consider a comment, we must receive it on or before
November 6, 2023. Your comment, including your name and your state,
will be placed on the public record of this proceeding, including the
https://www.regulations.gov website.
If you file your comment on paper, write ``Surgeon General's
Cigarette Health Warnings: Paperwork Comment, FTC File No. P854505'' on
your comment and on the envelope, and mail it to the following address:
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania
Avenue NW, Suite CC-5610 (Annex J), Washington, DC 20580.
Because your comment will become publicly available at https://www.regulations.gov, you are solely responsible for making sure that
your comment does not include any sensitive or confidential
information. In particular, your comment should not include any
sensitive personal information, such as your or anyone
[[Page 60943]]
else's Social Security number; date of birth; driver's license number
or other state identification number, or foreign country equivalent;
passport number; financial account number; or credit or debit card
number. You are also solely responsible for making sure that your
comment does not include any sensitive health information, such as
medical records or other individually identifiable health information.
In addition, your comment should not include any ``trade secret or any
commercial or financial information which . . . is privileged or
confidential''--as provided by section 6(f) of the FTC Act, 15 U.S.C.
46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)--including, in
particular, competitively sensitive information, such as costs, sales
statistics, inventories, formulas, patterns, devices, manufacturing
processes, or customer names.
Comments containing material for which confidential treatment is
requested must (1) be filed in paper form, (2) be clearly labeled
``Confidential,'' and (3) comply with FTC Rule 4.9(c). In particular,
the written request for confidential treatment that accompanies the
comment must include the factual and legal basis for the request and
must identify the specific portions of the comment to be withheld from
the public record. See FTC Rule 4.9(c). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted publicly at www.regulations.gov, we cannot redact or remove
your comment unless you submit a confidentiality request that meets the
requirements for such treatment under FTC Rule 4.9(c), and the General
Counsel grants that request.
The FTC Act and other laws that the Commission administers permit
the collection of public comments to consider and use in this
proceeding as appropriate. The Commission will consider all timely and
responsive public comments that it receives on or before November 6,
2023. For information on the Commission's privacy policy, including
routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
Josephine Liu,
Assistant General Counsel for Legal Counsel.
[FR Doc. 2023-19185 Filed 9-5-23; 8:45 am]
BILLING CODE 6750-01-P