Earlier this week, I discussed an article published in the journal Tobacco Control and a blog commentary on the article, in which a set of anti-smoking researchers attacked the cigarette industry for complying with the law. The article and commentary criticize tobacco companies for changing their labeling of "light" and "ultra-light" cigarette brands by removing these terms and instead, giving the brands different colors to differentiate them. The study found that manufacturers removed the "lights" labels, as required by law, and substituted colors for the banned descriptors. The study concludes that the tobacco companies circumvented the law and argues that these brands should be labeled by the FDA as "adulterated" and pulled from the market.
In my blog post, I argued that the cigarette companies cannot possibly be found in
violation of the law for using alternative names for their products
when the law specifically allowed those products to remain on the
My argument was echoed in a response to the article by Steven Pinkerton, a public health researcher from the Medical College of Wisconsin, who pointed out that: "the major tobacco companies
demonstrated 100% compliance with the law by eliminating all terms
specified in the FSPTCA [Family Smoking Prevention and Tobacco Control Act]--the use of colour terms to designate sub-brands
is not regulated by the FSPTCA."
In their reply to this response, the authors of the study clarify their reasoning for attacking the cigarette companies, even though they merely complied with the law:
"The findings demonstrated that manufacturers did not simply
remove descriptors, to be in compliance with the law, but introduced new
color-coded brand name descriptors which smokers were able to recognize
and easily identify the formerly labeled "lights" brands. We did not
examine the use of colors themselves, which may be protected by the First
Amendment, but rather the use of color terms. The marketing materials
examined make explicit the fact that the use of substituted color terms in
brand names is similar to the dropped "descriptors, so that consumers will
continue to recognize these brands as "lights"."
The Rest of the Story
The study authors attack the cigarette companies for substituting another term in the brand name for their products after removing the offending terms ("lights," "ultra-lights," "mild," etc.). But what they fail to acknowledge is that in order to comply with the law, the cigarette companies had no other choice. Had they simply removed the offending descriptor, this would have resulted in their having four or five brands with the exact same name, preventing consumers from having any way to distinguish these brands. Such a result would have effectively removed these brands from the market, which was clearly not the intent of Congress. Had Congress intended to remove these brands from the market, it would have simply banned these brands altogether.
Without adding a descriptor of some sort, the cigarette companies would not have been able to distinguish their sub-brands. For example, Marlboro "Lights" would now be called "Marlboro." Marlboro "Ultra-Lights" would now be called "Marlboro." And Marlboro "Milds" would now be called "Marlboro." Thus, there would be three brands on the market, all called simply "Marlboro," and consumers would have no way of telling them apart.
Let's suppose that Altria had decided to simply call these brands Marlboro A, Marlboro B, and Marlboro C. Consumers would have still learned which letter corresponded to which product, and if you conducted a study, you would find that despite banning the "lights" terms, consumers still recognized which product corresponded to which earlier brand name. By the reasoning of the study authors, this would have represented a circumvention of the law and resulted in the companies being attacked for evading the law.
The point is that there was no way for the cigarette companies to comply with the law, other than to change the banned descriptors to a new term. And no matter what term they chose, consumers would have figured out which brand was which. Moreover, the law did not specify or imply that the companies were prohibited from informing consumers which brand was which.
In other words, it is time to acknowledge that the law was flawed. It is not the cigarette companies that are to blame for the fact that consumers still understand which brand is which. The law is to blame. If the intent of Congress were to ban any brand that might mislead consumers, then the Congress should simply have banned these brands, requiring them to be pulled from the market.
But that wasn't the intent of Congress, or of the anti-smoking groups which supported the Family Smoking Prevention and Tobacco Control Act. The intent was to gain a political victory by making it look like they were doing something to protect the public's health, when in truth, they weren't actually doing anything to make cigarettes safer. If anything, they were putting obstacles in the way of transforming the tobacco market into one that is safer.
Instead, the law created a huge bureaucracy full of red tape and sluggish approval processes such that there are still close to 3500 substantial equivalence applications stacked up in a pile somewhere, and the FDA is so overburdened that it cannot even issue electronic cigarette regulations in a reasonable amount of time.
The failure of the Family Smoking Prevention and Tobacco Control Act does call for criticism. But that criticism should not be leveled at the colors Gold, Silver, and Blue. The criticism should be directed at the anti-smoking groups and politicians who sold out the health of the public for political gain.