[Federal Register Volume 89, Number 135 (Monday, July 15, 2024)]
[Notices]
[Pages 57412-57414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15480]


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FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Submission for OMB 
Review; Comment Request; Extension

AGENCY: Federal Trade Commission.

ACTION: Notice.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') has 
clearance from the Office of Management and Budget (``OMB'') to send 
information requests, pursuant to compulsory process, to a combined ten 
or more of the largest cigarette manufacturers and smokeless tobacco 
manufacturers. The information sought includes, among other things, 
data on the manufacturers' annual sales and marketing expenditures for 
cigarettes, smokeless tobacco products, and electronic devices used to 
heat non-combusted cigarettes, and sales of tobacco-free nicotine 
lozenges and pouches. The current OMB clearance for this information 
collection expires on August 31, 2024. Accordingly, the Commission is 
providing this second opportunity for public comment while seeking OMB 
approval to renew the pre-existing clearance and to modify the existing 
clearance to allow for the collection of additional information 
concerning annual marketing expenditures for tobacco-free nicotine 
lozenges and pouches by smokeless tobacco manufacturers or related 
companies.

DATES: Comments must be filed by August 14, 2024.

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. Written comments and 
recommendations for the proposed information collection should be sent 
within 30 days of publication of this notice to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting 
``Currently under 30-day Review--Open for Public Comments'' or by using 
the search function.

FOR FURTHER INFORMATION CONTACT: Michael Ostheimer, Division of 
Advertising Practices, Bureau of Consumer Protection, Federal Trade 
Commission, 600 Pennsylvania Avenue NW, Mailstop CC-10507, Washington, 
DC 20580, (202) 326-2699.

SUPPLEMENTARY INFORMATION:

A. Background

    Pursuant to section 6(b) of the FTC Act, 15 U.S.C. 46(b), the 
Commission collects information on sales and/or marketing of 
cigarettes, smokeless tobacco products, tobacco-free nicotine lozenges 
and pouches, and electronic devices used to heat non-combusted 
cigarettes (collectively, ``subject products'') from manufacturers of 
cigarettes and smokeless tobacco products. Depending on the type of 
product a manufacturer produces, the Commission requests the 
information using two different instruments--that is, a Cigarette Order 
or a Smokeless Tobacco Order. The Commission compiles and publishes the 
data in two periodic reports.
    The current OMB clearance to collect this information is valid 
through August 31, 2024 (OMB Control No. 3084-0134). On March 26, 2024, 
the Commission sought public comment on its proposal to renew its 
current OMB clearance, and to modify its existing clearance to allow 
for the collection of additional information concerning annual 
marketing expenditures for tobacco-free nicotine lozenges and pouches 
by smokeless tobacco manufacturers or related companies. See 89 FR 
20967 (Mar. 26, 2024). In response to the Federal Register Notice, the 
Commission received three germane comments, consisting of comments from 
two individual commenters and the Truth Initiative, a nonprofit tobacco 
control organization. The following section contains a discussion of 
the comments and the Commission's responses.

B. Discussion of Comments

    Two of the three comments express the commenters' strong support 
for the information collection,\1\ while one individual commenter 
generally asserts that government resources spent on collecting this 
information should be spent on other ``much bigger issues''

[[Page 57413]]

instead.\2\ As discussed below, the Commission finds the collection of 
the information necessary and useful. Because the remainder of this 
comment is not germane to this clearance request, the following 
discussion focuses on the two supportive comments.\3\
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    \1\ Comment from Truth Initiative (May 28, 2024), available at 
https://www.regulations.gov/comment/FTC-2020-0049-0014 [hereinafter 
Truth Initiative Comment]; Comment from Andy Hernandez (Mar. 27, 
2024), available at https://www.regulations.gov/comment/FTC-2020-0049-0010.
    \2\ See Comment from DarkSoul Longlegs (Apr. 5, 2024), available 
at https://www.regulations.gov/comment/FTC-2020-0049-0011.
    \3\ Aside from the commenter's general assertion that ``[t]here 
are much bigger issues [that should be] track[ed],'' the remainder 
of the comment discusses general policy matters, such as access to 
healthcare, marijuana usage, and reproductive rights. See id.
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    Both supportive comments discuss the usefulness of the collection 
of the information. Specifically, both supportive comments note that 
the FTC's Cigarette and Smokeless Tobacco Reports provide critical data 
to researchers, policymakers, advocates, and the general public.\4\ 
Truth Initiative also reiterates the ``powerful utility'' of the FTC's 
Cigarette and Smokeless Tobacco Reports by noting that the FTC's 
Cigarette and Smokeless Tobacco Reports ``provide information that is 
not available elsewhere,'' and ``often provide the basis for strong 
public health policies with regard to tobacco use and marketing.'' \5\ 
Additionally, Truth Initiative expresses its approval of the 
Commission's practice of updating its Cigarette and Smokeless Tobacco 
Orders to ensure that the resulting reports continue to be relevant and 
reflect the current cigarette and smokeless tobacco market. 
Specifically, in this context, Truth Initiative agrees that there is a 
need to modify the existing clearance to allow for the collection of 
information concerning annual marketing expenditures for tobacco-free 
nicotine lozenges and pouches by smokeless tobacco manufacturers or 
related companies because (1) the sales of tobacco-free nicotine 
lozenges and pouches more than doubled between 2020 and 2022, and (2) 
these products appear to be especially popular with youth.\6\ Before 
proceeding to discuss Truth Initiative's recommendations, the 
Commission would like to note that it appreciates the comments, as they 
underscore the necessity of this information collection.
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    \4\ See supra note 1.
    \5\ See Truth Initiative Comment, supra note 1.
    \6\ See id. (citing Jan Birdsey et al., Tobacco Product Use 
Among U.S. Middle and High School Students--National Youth Tobacco 
Survey, 2023, 72 Morbidity and Mortality Wkly. Rep. 1173 (Nov. 3, 
2023), available at https://doi.org/10.15585/mmwr.mm7244a1).
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    As part of its comment, Truth Initiative also makes the following 
recommendations--each of which would expand the scope of the 
information collection. First, Truth Initiative recommends that the 
Commission request information regarding low nicotine cigarettes. Truth 
Initiative points out that, in December 2019, the U.S. Food and Drug 
Administration authorized the marketing by one company of two new 
tobacco products, which are combusted, filtered cigarettes that contain 
a reduced amount of nicotine compared to typical commercial 
cigarettes.\7\ Truth Initiative acknowledges that ``the market share of 
these products is extremely small compared to other products,'' but 
notes that ``it is important that we understand the kind of marketing 
that is used to promote these products.'' \8\ It recommends that the 
Commission add the manufacturer of these two products to the list of 
companies ``required to fill out future Cigarette Orders.'' \9\
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    \7\ Food and Drug Administration, FDA Permits Sale of Two New 
Reduced Nicotine Cigarettes Through Premarket Tobacco Product 
Application Pathway (Dec. 17, 2019), available at https://www.fda.gov/news-events/press-announcements/fda-permits-sale-two-new-reduced-nicotine-cigarettes-through-premarket-tobacco-product-application.
    \8\ See Truth Initiative Comment, supra note 1.
    \9\ See id.
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    The Commission's Cigarette Reports focus on the largest cigarette 
manufacturers and do not attempt to present a complete picture of the 
cigarette market. There are numerous smaller manufacturers and 
importers of cigarettes to which the Commission does not direct its 
cigarette Orders. Even if the Commission were to direct an order to the 
one company selling low nicotine cigarettes, it could not publish data 
regarding ``low nicotine'' cigarettes because doing so would result in 
publishing the one company's confidential commercial information. 
Accordingly, at this time, the Commission does not intend to seek 
information specifically regarding low nicotine cigarettes, or to 
direct an Order to the one company marketing such products.
    Second, Truth Initiative suggests that the Commission collect and 
report on information about the content of advertisements for certain 
products, such as heated, non-combusted cigarettes and oral nicotine 
products; specifically, whether such products are being advertised as 
less harmful or better alternatives to traditional cigarette and 
smokeless tobacco products or as lifestyle products. In support of this 
recommendation, Truth Initiative notes that, for example, the marketing 
of oral pouch products as ``tobacco-free'' alternatives to smoking may 
lead consumers to ascribe lower risks to these products, despite a lack 
of evidence or proper federal authorization.\10\ Truth Initiative also 
recommends that the Commission collect information on how ``tobacco 
companies'' use sponsored content in major media outlets to shift 
public perception. In support of this recommendation, Truth Initiative 
notes that ``[t]obacco companies . . . [are] spending millions on ads 
designed to reposition them as aligned with public health.'' \11\
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    \10\ See id. (citing Patel Czaplicki et al., Oral Nicotine 
Marketing Claims in Direct-Mail Advertising, 31 Tobacco Control 663 
(2022), available at https://doi.org/10.1136/tobaccocontrol-2020-056446).
    \11\ See Truth Initiative Comment, supra note 1 (citing Robin 
Koval et al., Tobacco Industry Advertising: Efforts to Shift Public 
Perception of Big Tobacco with Paid Media in the USA, 32 Tobacco 
Control 801 (2023), available at https://doi.org/10.1136/tobaccocontrol-2021-057189).
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    With respect to Truth Initiative's suggestion that the Commission 
collect information on certain types of advertising content, the 
Commission notes that the Cigarette and Smokeless Tobacco Reports have 
historically provided data on sales and advertising expenditures. 
Additionally, the Commission believes that expanding the scope of the 
requests to include this type of information would divert critical 
resources from other mission priorities. Therefore, the Commission 
declines to make these proposed modifications.
    Third, Truth Initiative recommends that the Commission collect 
marketing data on cigars, and notes that ``[y]outh use cigars at rates 
similar to cigarettes, making marketing information around cigars 
equally important.'' \12\ The Commission respectfully declines the 
commenter's recommendation to seek marketing data on cigars as part of 
its information requests. The Commission believes that doing so would 
divert critical resources from other mission priorities. Fourth, Truth 
Initiative recommends that the Commission collect data on the organic, 
or unpaid, promotion of tobacco products by influencers on social 
media. According to Truth Initiative, the FTC's Cigarette and Smokeless 
Tobacco Reports leave ``out a crucial and significant segment of how 
tobacco product use is promoted'' because (1) ``[t]obacco content is 
commonplace on social media,'' and (2) ``[r]esearch shows exposure to 
tobacco content on social media doubles the odds of tobacco use among 
young people compared to those who are not exposed.'' \13\ Truth 
Initiative also

[[Page 57414]]

suggests the Commission try to quantify this information by gathering 
data from social media companies. As noted above, this type of 
gathering and analyzing advertising content and assessing the impact of 
that advertising is beyond the scope of these reports.\14\
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    \12\ See Truth Initiative Comment, supra note 1.
    \13\ See id. (citing Scott I. Donaldson et al., Association 
Between Exposure to Tobacco Content on Social Media and Tobacco Use, 
176(9) JAMA Pediatrics 878 (July 11, 2022), available at https://doi.org/10.1001/jamapediatrics.2022.2223; Daniel K. Cortese et al., 
Smoking Selfies: Using Instagram to Explore Young Women's Smoking 
Behaviors, Social Media + Society 4(3) (Aug. 7, 2018), available at 
https://doi.org/10.1177/205630511879076).
    \14\ Truth Initiative recognizes that gathering information from 
social media companies is beyond the scope of these information 
requests. See Truth Initiative Comment, supra note 1.
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    Truth Initiative also notes that one of its studies, which examined 
vaping influencers on Instagram, found that ``most influencer posts 
promoting vaping products were unambiguous vaping advertisements 
promoting a specific brand or product,'' and the majority of them did 
not disclose the influencer's brand relationship.\15\ Accordingly, 
Truth Initiative also urges the Commission to take enforcement actions 
against such social media posts on the basis that the influencers' 
failure to disclose their brand relationship constitutes a violation of 
the FTC's Endorsement Guides (16 CFR part 255). Because any such 
enforcement actions would be independent from the Commission's 
Cigarette Orders and Smokeless Tobacco Orders, this recommendation is 
not germane to this clearance request.
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    \15\ Truth Initiative Comment, supra note 1 (citing Nathan A. 
Silver et al., Examining Influencer Compliance with Advertising 
Regulations in Branded Vaping Content on Instagram, 10 Front. Public 
Health (Jan. 9, 2023), available at https://doi.org/10.3389/fpubh.2022.1001115).
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    Accordingly, for the foregoing reasons, the Commission declines to 
make any adjustments to its prior burden estimates or to modify its 
initial proposal.

C. Overview of Information Collection

    Title: FTC Cigarette and Smokeless Tobacco Data Collection.
    OMB Control Number: 3084-0134.
    Type of Review: Revision and extension of currently approved 
collection.
    Likely Respondents: Parent companies of the largest cigarette 
companies and smokeless tobacco companies.
    Estimated Annual Burden Hours: 3,540 hours.
    Estimated Annual Labor Costs: $407,100.
    Estimated Annual Non-Labor Costs: $0.
    Abstract: Pursuant to section 6(b) of the FTC Act, 15 U.S.C. 46(b), 
the Commission collects information on sales and/or marketing of the 
subject products from manufacturers of cigarettes and smokeless tobacco 
products. The Commission then compiles and publishes the data in two 
periodic reports.
    The Commission's section 6(b) Orders seek data regarding, among 
other things: (1) the cigarette or smokeless tobacco sales of industry 
members; (2) how much industry members spend advertising and promoting 
their cigarette or smokeless tobacco products, and the specific amounts 
spent in each of a number of specified expenditure categories; (3) 
whether industry members are involved in the appearance of their 
cigarette or smokeless tobacco products or brand imagery in television 
shows, motion pictures, on the internet, or on social media; (4) how 
much industry members spend on advertising intended to reduce youth 
cigarette or smokeless tobacco usage; (5) the events, if any, during 
which industry members' cigarette or smokeless tobacco brands are 
televised; and (6) how much industry members spend on public 
entertainment events promoting their companies but not specific 
cigarette or smokeless tobacco products or such products generally. The 
information requests to cigarette companies also seek information 
pertaining to the annual sales, giveaways, and marketing expenditures 
for electronic devices used to heat non-combusted cigarette products, 
and the information requests to smokeless tobacco companies also seek 
information pertaining to the annual unit and dollar sales of tobacco-
free nicotine lozenges and pouches. Once the Commission's clearance 
request has been approved by OMB, the Commission's information requests 
to smokeless tobacco companies will also seek information concerning 
sales and advertising and promotional expenditures for tobacco-free 
nicotine lozenges and pouches, including the specific amounts spent in 
each of a number of specified expenditure categories.

D. Request for Comment

    Pursuant to OMB regulations, 5 CFR part 1320, which implement the 
Paperwork Reduction Act of 1995, as amended, 44 U.S.C. 3501 et seq. 
(``PRA''), the FTC is providing this second opportunity for public 
comment while seeking OMB approval to renew and modify the pre-existing 
clearance as described above. For more details about the information 
collection and the basis for the calculations summarized above, see 89 
FR 20967.
    Your comment--including your name and your state--will be placed on 
the public record of this proceeding. Because your comment will be made 
public, you are solely responsible for making sure that your comment 
does not include any sensitive personal information, such as anyone'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 ensuring 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 ``[t]rade secret or any commercial or 
financial information which is . . . privileged or confidential''--as 
provided in 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.

Josephine Liu,
Assistant General Counsel for Legal Counsel.
[FR Doc. 2024-15480 Filed 7-12-24; 8:45 am]
BILLING CODE 6750-01-P