2010-1041. Regulations under the Comprehensive Smokeless Tobacco Health Education Act; Termination of Rulemaking Proceeding

AGENCY:

Federal Trade Commission.

ACTION:

Notice of Termination of Rulemaking Proceeding.

SUMMARY:

The Federal Trade Commission (“FTC” or “Commission”) has terminated its rulemaking concerning a proposed amendment to its regulations (“smokeless tobacco regulations”), , implementing the Comprehensive Smokeless Tobacco Health Education Act of 1986 (“Smokeless Tobacco Act”). The proposed amendment expressly provided that sponsored racing vehicles and other event-related objects that display the brand name, logo, or selling message of smokeless tobacco products are advertising subject to the Smokeless Tobacco Act and the Commission’s implementing regulations. In addition, the proposal set out a method for the display and rotation of the statutory health warnings on the objects subject to the amendment.

EFFECTIVE DATE:

December 3, 2009.

ADDRESSES:

Requests for copies of this notice should be sent to the Consumer Response Center, Room 130, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, DC 20580. The notice also is available on the Internet on the Commission’s Web site, (http://www.ftc.gov).

FOR FURTHER INFORMATION CONTACT:

Shira Modell, Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, DC 20580, 202-326-3116.

SUPPLEMENTARY INFORMATION:

In 1991, the Coalition on Smoking OR Health petitioned the Commission to enforce the Smokeless Tobacco Act by requiring rotational health warnings on sponsored racing cars, banners, flags, and other event-related objects. On November 4, 1993 (58 FR 58810), the FTC published a Notice of Proposed Rulemaking (“Notice”) requesting public comment on a proposed amendment to the Commission’s smokeless tobacco regulations that expressly provided that sponsored racing vehicles and other event-related objects bearing smokeless tobacco brand names, logos, or selling messages are subject to the statutory health warning requirements. The Notice also set out a method for displaying and rotating the health warnings on the objects encompassed by the proposed amendment.

During the public comment period, the Commission received approximately 217 substantive comments, numerous petitions signed by members of specific racing teams, and about 53,000 postcards.^[1] Of the substantive comments, 200 opposed the proposed regulations and 17 supported the proposal to require warnings on vehicles and other event-related objects. The race team petitions likewise generally opposed the proposal, and the postcards contained a pre-printed message opposing the proposal.

On June 22, 2009, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (2009) (“Family Smoking Prevention Act”). The Family Smoking Prevention Act, among other things, transfers authority over the size, format, and display of the smokeless tobacco health warnings to the Secretary of the Department of Health and Human Services (“DHHS”). Thus, pursuant to the Family Smoking Prevention Act, determinations as to whether and how to display and rotate warnings on various objects or vehicles will be made by DHHS. Further, the Family Smoking Prevention Act directs the DHHS to re-issue its Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 FR 44615-618 (Aug. 28, 1996). Those regulations would prohibit cigarette and smokeless tobacco manufacturers from sponsoring athletic and entertainment events using brand names, logos, or selling messages.

Given these legislative and likely regulatory changes, the Commission has determined that it would be more appropriate for the DHHS to consider the issues raised in this rulemaking proceeding. Accordingly, the Commission concludes that it is not in the public interest to continue this proceeding and it hereby gives notice of its termination.

By direction of the Commission.

Donald S. Clark,

Secretary.

Footnotes

1. The comments were filed by Members of Congress, a state governor, four manufacturers of smokeless tobacco products, state health agencies, a local chamber of commerce, public health and public interest organizations, representatives of event-related businesses such as arenas, race track owners, team owners, sports sanctioning bodies, sporting event announcers, and racing car drivers, as well as other individuals.