sample="quota" bates="1001534667" isource="pm" decade="1950" class="ue" date="19521229" UNITED STATES OF AMERICA BEFORE FEDERAL TRADE COMMISSION COMMISSIONERS: James M. Mead, Chairman, Lowell B. Mason, John Carson, Stephen J. Spingarn, Albert A Carretta. In the Matter of PHILIP MORRIS & COMPANY, LTD., INC., a corporation Docket No. 4794 DECISION OF THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission, on August 5, 1942, issued and subsequently served its complaint in this proceeding upon the respondent named in the caption hereof, charging it with the use of unfair and deceptive acts and practices in commerce in violation of the provisions of said Act. After the issuance of said complaint and the filing of respondent's answer thereto, hearings were held at which testimony and other evidence in support of and in opposition to the allegations of said complaint were introduced before hearing examiners of the Commission theretofore duly designated by it, and said testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter, the proceeding regularly came on for final consideration by the hearing examiner last appointed on the complaint, the answer thereto, testimony and other evidence, and proposed findings as to the facts and conclusions presented by counsel, and said bearing examiner, on January 23, 1952, filed his initial decision. Within the time permitted by the Commission's Rules of Practice, counsel for respondent filed with the Commission an appeal from said initial decision, and thereafter this proceeding regularly came on for final consideration by the Commission upon the record herein, including briefs in support of and in opposition to said appeal and oral arguments of counsel; and the Commission, having issued its order granting said appeal in part and denying it in part in the interest of the public and makes this its findings as to the facts its conclusion drawn therefrom and order, the same to be in lieu of the initial decision of the hearing examiner. FINDINGS AS TO THE FACTS PARAGRAPH ONE: The respondent, Philip Morris & Company, Ltd., Inc., is a Virginia corporation with its executive offices in New York city, New York and its factories at Richmond, Virginia. PARAGRAPH TWO: For more than two years prior to the issuance of the complaint, the respondent has been, and now is, engaged in the manufacture of tobacco products including cigarettes under the brand name "Philip Morris." Philip Morris cigarettes have been, and now are, sold and transported in commerce between the various States of the United States and in the District of Columbia. The respondent is now, and for more than two years prior to the issuance of the complaint has bee, one of the largest manufacturers of tobacco products in the United States and is now, and has been, insubstantial competition with other corporations, persons, firms and partnerships engaged in the sale of tobacco products in commerce between and among the various States of the United States and in the District of Columbia. PARAGRAPH THREE: In the course and conduct of its business and particularly for the purpose of aiding in the sale of its "Philip Morris" brand of cigarettes in interstate commerce, the respondent disseminated and caused the dissemination of advertisements and advertising material concerning said cigarettes by the United States mails, in magazines of nation-wide circulation, in newspapers of interstate circulation, by radio broadcasts in nationwide hookups and by other means in commerce. Among and typical of the statements contained in the said advertisements were the following: "You'll like Philip Morris. Full enjoyment of the world's finest tobaccos - unmarred by throat irritation." "No worry about throat irritation even when you inhale!" "No other cigarette can give this proof. No worry about throat irritation even when you inhale!" "Recognized laboratory tests have conclusively proven the advantage of Philip Morris over other cigarettes, i.e.: The irritant quality of the smoke of four other leading brands averaged more than three times that of the strikingly contrasted Philip Morris. Further - the irritant effect of such cigarettes was observed to last more than five times as long." "On comparing - the irritant quality in the smoke of the four other leading brands was found to average more than three times that of the strikingly contrasted Philip Morris - and that the irritation lasts more than five times as long! Many smokers don't even know it - but all smokers inhale some of the time. That's why you need Philip Morris' superiority for the nose and throat - recognized by medical authorities!" "With Philip Morris - you have no opinion - no facts from any private research of our own. Instead we simply call your attention to the findings of an independent group of doctors. You can draw your own conclusions. For the sole benefit of their own profession these doctors report in authoritative medical journals - - -" PARAGRAPH TWENTY-ONE: Dr. John M. Lore was employed by respondent to make a study of the relative irritating effects of cigarettes containing glycerine and diethylene glycol as humectants. His study was make of the underside of the tongue and the floor of the mouth; why this area was selected does not appear. Respondent in its brief disavows this study as being any more than some confirmation of the results noted by other experimenters in animals. Accordingly, it is found that this study does not demonstrate that cigarettes treated with diethylene glycol are less irritating than those treated with glycerine. PARAGRAPH TWENTY-TWO: Further experimental work dealing with the relative irritating effects of the smoke of cigarettes containing glycerine and diethylene glycol was done, at the instance of the respondent, by Dr. Samuel J. Kopetzky, and at the instance of glycerine producers, by Dr. Axel M. Hjort. Dr. Kopetzky's experiment involved, in brief, the cutting open of a rabbit's trachea, the insertion of a small metal tube, or cannula, therein, closing the wound, and connecting the cannula to a small reservoir of smoke which the rabbit breathed through the cannula. From this experiment Dr. Kopetzky concluded that smoke from cigarettes containing diethylene glycol is much less irritating than the smoke from otherwise identical cigarettes containing glycerine. Dr. Hjort's experiment also involved the insertion of a cannula in the animal's trachea and the breathing of smoke through it. The Commission is of the opinion that both of these experiments involved the creating of conditions so far removed from those under which cigarettes are smoked by humans that observations made thereunder are of no assistance in determining the issues in this proceeding. They are therefore disregarded. The same is true of an experiment with dogs conducted by Mrs. Dorothy M. Gullicksen. PARAGRAPH TWENTY-THREE: Dr. Samuel J. Kopetzky who performed the tracheotomy experiments hereinbefore described also conducted experiments in which he used a pharyngeal colorimeter. Colorimeters for evaluating color are used in various fields and Dr. Kopetzky merely adopted a well-known principle for evaluating the color of the membranes of the throat. The principle further involved is that irritation causes a reddening of tissue and, therefore, the intensity of color would be susceptible to evaluation by a colorimeter. Visual examination of color is dependent upon the observer's reaction, where as the colorimeter actually registers color intensity. PARAGRAPH TWENTY-FOUR: The device was submitted to Electrical Testing Laboratories, Inc., for a determinator of its response to a series of color chips, and as "equipment designed by the client for the measurement of changes in the pharyngeal wall of the throat." In making this test of the device: "Red and white paints with low specular reflection characteristics were secured. Various shades of red were prepared by mixing the two in different proportions. The mixtures were applied to five wooden blocks, care being taken to assure a uniform surface." (Underlining supplied.) The readings were taken indicated "that the instrument is sensitive to changes in red as shown on these blocks." The apparatus was found to show a decreasing reading with increase of saturation - that is the darker the color the reading. PARAGRAPH TWENTY-FIVE: Dr. Hans Hirschfield, a specialist in ear, nose and throat diseases, an assistant of Dr. Kopetzsky, carried out the routine experimental work involving the use of the Kopetzsky pharyngeal colorimeter for measuring the irritant effects of smoking. The procedure was basically the measurement of the redness of subject's throat before and after smoking by the use of this device. Subsequently, Dr. Kopetzky performed additional experiments using essentially the same procedure. As a result of this new work, instead of a trend as shown in his previous colorimetric experiment, Dr. Kopetzky concluded that cigarettes moistened with glycerine are more irritating than cigarettes moistened with diethylene glycol and that the difference in reaction can be picked up by the colorimeter. In a later test conducted by Drs. Lenth and Andrews also using a colorimeter and human subjects two series of readings were made on the throat of each subject before any smoking was done. The two series were made 15 minutes apart, and each consisted of four readings made at 10-second intervals. These readings showed different degrees of redness within a 30-second period and also different degrees of redness in the two periods in the same individual. (d) The use of diethylene glycol instead of glycerine as a humectant in cigarettes has no significant effect upon the irritancy of the cigarettes. (e) the studies and experiments referred to by respondent in its various advertisements were not made for the benefit of the medical profession but were, in fact, made at the instance of respondent as a basis for, and in support of, its advertising claims. (f) Philip Morris cigarettes will not protect the smoker from "smoker's coughs," the effects of inhaling or from throat irritation due to inhaling. PARAGRAPH FORTY-EIGHT: Respondent's claim that he irritation produced by cigarettes treated with diethylene glycol was of shorter duration than that produced by those treated with glycerine was essentially based on the work of Mulinos and Wallace referred to above. The Commission is of the opinion that the record does not support respondent's claim. In view of the Commission's finds (c) (supra), the Commission, as a corollary, finds that there is no significant difference in the duration of the irritation attributable to the humectant. PARAGRAPH FORTY-NINE: Respondent in its answer admits that "throats and mouths of smokers of Philip Morris cigarettes, after a day of smoking cigarettes, are not as fresh and comfortable nor the breath as pure and sweet as in the morning before smoking such cigarettes." It is, therefore found that Philip Morris cigarettes do affect the breath and leave an aftertaste. PARAGRAPH FIFTY: The foregoing statements and representations used by respondent in connection with the offering for sale, sale distribution in commerce of its Philip Morris cigarettes had the capacity and tendency to mislead and deceive members of the public into the erroneous and mistaken belief that the said statements and representations were true and into the purchase of substantial quantities of said cigarettes by reason of said erroneous and mistaken belief. CONCLUSION The acts and practices of repondent as herein found were all to the prejudice and injury of the public and constituted unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act. The Commission has considered the record in connection with the other issues presented by the pleadings and has concluded the allegations of the complaint with respect thereto have not been proved. ORDER IT IS ORDERED that the respondent, Philip Morris & Company, Ltd., a corporation, its officers, agents, representatives and employees, directly or through corporate or other device in connection with the offering for sale, sale and distribution of its "Philip Morris" brand of cigarettes in commerce, as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from representing directly or by implication: (1) That Philip Morris cigarettes, or the smoke therefrom, will not irritate the upper respiratory tract. (2) That Philip Morris cigarettes, or the smoke therefrom, are less irritating to the upper respiratory tract tan cigarettes, or the smoke therefrom, of any of the other leading brands of cigarettes. (3) That the irritation caused by smoking other leading brands of cigarettes is of longer duration than that caused by smoking Philip Morris cigarettes. (4) That the use of diethylene glycol as a humectant in cigarettes renders, or significantly contributes to rendering, the smoke therefrom less irritating to the upper respiratory tract than the smoke from the cigarettes in which glycerine is used as a humectant. (5) That Philip Morris cigarettes, or the smoke therefrom, will not affect the breath or leave an aftertaste. (6) That the use of Philip Morris cigarettes protects the smoker against smoker's coughs, the effects of inhaling or throat irritation due to inhaling. and from: (7) Misrepresenting the reasons for which any study, survey, experiment, test or the like was made. IT IS FURTHER ORDERED that the charges of the complaint, other than those to which this order relates, be, and the same hereby are, dismissed. IT IS FURTHER ORDERED that the respondent shall, within (60) days after service upon it of this order, file with the Commission a report in writing setting forth in detail the manner and form in which it has complied with this order. By the Commission, Commissioner Carretta not participating for the reason that oral argument in this proceeding was heard prior to his becoming a member of the Commision. SEAL ISSUED: December 29, 1952. D.C. Daniel Secretary.