869 F.2d 1541 (D.C. Cir. 1989), 88-5209, Public Citizen v. F.T.C.

Docket Nº:88-5209.
Citation:869 F.2d 1541
Case Date:March 14, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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869 F.2d 1541 (D.C. Cir. 1989)




No. 88-5209.

United States Court of Appeals, District of Columbia Circuit.

March 14, 1989

Argued Jan. 30, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-03556).

Lawrence DeMille-Wagman, Attorney, F.T.C., with whom Robert D. Paul, Gen. Counsel, and Ernest J. Isenstadt, Asst. Gen. Counsel, F.T.C., Washington, D.C., were on the brief for appellant.

David C. Vladeck, with whom Alan B. Morrison, Washington, D.C., was on the brief for appellees.

James G. O'Hara, with whom Garret G. Rasmussen, Washington, D.C., was on the brief for The Smokeless Tobacco Council, Inc. as amicus curiae, urging the judgment of the District Court be vacated.

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Kathryn A. Oberly, Washington, D.C., also entered an appearance for amicus curiae, The Smokeless Tobacco Council, Inc.

Paul D. Kamenar, Washington, D.C., entered an appearance for amicus curiae, Washington Legal Foundation.

Before WALD, Chief Judge, MIKVA, Circuit Judge, and GREENE [*] , District Judge.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

In 1986, Congress passed the Comprehensive Smokeless Tobacco Health Education Act, 15 U.S.C. Secs. 4401-4408 ("Smokeless Tobacco Act" or "Act"). The Act established a comprehensive scheme under which producers and distributors of smokeless tobacco products (e.g., snuff and chewing tobacco) are required to include health warnings on all smokeless tobacco packages, as well as in advertisements for the product. See 15 U.S.C. Sec. 4402(a)(1), (2). Appellant Federal Trade Commission ("FTC" or "Commission"), which was charged with implementing certain aspects of the Act, published final regulations in 1986 that, inter alia, expressly exempted "utilitarian objects for personal use, such as pens, pencils, clothing, or sporting goods," from the Act's general warning requirements. According to one industry representative, these items include "the tee shirts, hats, tote bags, and the like that manufacturers provide with their identifying brandnames and logos and sometimes brief associated messages." Joint Appendix ("J.A.") at 76 (comment to the FCC by Terry Burns, Executive Director of the National Association of Tobacco Distributors). Appellees Public Citizen, the American Cancer Society, the American Heart Association, the American Lung Association, and the American Public Health Association ("appellees" or "the organizations") brought suit in district court, alleging that the FTC's decision to exempt utilitarian items that bear product logos or selling messages from Congress' comprehensive warning scheme was contrary to the express provisions of the Act, and that the Commission's decision was in any event arbitrary and capricious. The district court agreed with the organizations on both grounds, ordering the FTC to delete the exemption from its regulations.

The FTC did not challenge the organizations' standing before the district court, and it has remained silent on the issue here. The Smokeless Tobacco Council, Inc., however, has made an appearance as amicus curiae, urging this court to find that the organizations lack standing to maintain this action. For the reasons that follow, we conclude that the organizations have met the requirements for standing. On the merits, we agree with the district court that the FTC's decision to exempt utilitarian items from the Act's warning requirements was contrary to the clear mandate of the Act, and we therefore affirm the district court's judgment.


    Congress enacted the Smokeless Tobacco Act in 1986 as a response to two alarming developments. The first involved the growing body of evidence that use of smokeless tobacco products such as snuff and chewing tobacco presents serious health hazards. Like tobacco that is smoked, smokeless tobacco contains nicotine and is addictive. See S.Rep. No. 209, 99th Cong., 2d Sess. 3 (1985), reprinted in 1986 U.S.Code Cong. & Admin. News 7, 9 ("Senate Report"). In addition, medical studies have linked smokeless tobacco use to "certain alterations in the tissues of the mouth, such as gingival recession (recession of the gums), periodontal bone destruction, and tooth abrasion." Id. Perhaps most significant, there is evidence of a correlation between smokeless tobacco use and the development of precancerous lesions, such as leukoplakia, which can convert to squamous cell carcinomas. Id.

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    The second development, perhaps even more troubling because of the multiplication of risks it portends for the future, involves recent dramatic increases in the number of people, particularly young people, who use smokeless tobacco. 1 During the first part of this century, smokeless tobacco use was slight compared to other forms of tobacco consumption, and was concentrated among a fairly small segment of the population. In fact, smokeless tobacco consumption was on the decline between 1900 and 1962. See Senate Report at 3-4. This trend has reversed in recent years. Since 1974, the use of smokeless tobacco has risen by a reported annual rate of 11 percent. See Tobacco Issues: Hearings Before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 99th Cong., 1st Sess. 260 (1985) ("House Hearings") (statement of LaSalle Leffall, Jr., M.D., citing National Cancer Institute estimates). On both the House and Senate floors, legislators cited statistics showing that nationally anywhere from 10 to 22 million persons are regular users of smokeless tobacco. See 132 Cong.Rec. 1332 (1986) (statement of Rep. Richardson); id. at 1858-59 (statement of Sen. Hatch); id. at 1961 (statement of Sen. Lugar).

    The surge in the popularity of smokeless tobacco among young people was clearly of particular concern to the legislators who sponsored the Smokeless Tobacco Act. One Texas study presented to Congress showed that among regular users, 88 percent started chewing or "dipping" before the age of 15, and 55 percent started before the age of 12. See House Hearings at 124-31 (statement of Elbert D. Glover, Ph.D.). Indeed, another study in Oklahoma revealed that 33 percent of ninth grade boys and 13 percent of third grade boys had tried smokeless tobacco products. See, e.g., 132 Cong.Rec. 1858 (statement of Sen. Hatch). Moreover, Congress determined that many of these persons turn to smokeless tobacco in the mistaken belief that it is a safe alternative to cigarette smoking.

    To respond to these disturbing developments, Congress enacted a comprehensive scheme "to make the public aware of the adverse health consequences of using smokeless tobacco products." 132 Cong.Rec. 1329 (1986) (statement of Rep. Waxman). The Smokeless Tobacco Act has several parts, including provisions for public education, see 15 U.S.C. Sec. 4401, and ingredient reporting, see 15 U.S.C. Sec. 4403. The Act's most striking component, however, is its comprehensive warning scheme. All smokeless tobacco packages must now contain one of three prescribed health warnings. 2 In addition, the Act imposes a blanket requirement, subject to one express exception, that advertising for smokeless tobacco products must also contain the warnings:

    It shall be unlawful for any manufacturer ... of smokeless tobacco products to advertise or cause to be advertised (other than through the use of outdoor billboard advertising) within the United States any smokeless tobacco product unless the advertising bears, in accordance with the requirements of this chapter, one of the labels required by paragraph (1).

    15 U.S.C. Sec. 4402(a)(2). The Act banned television and radio advertising altogether. 15 U.S.C. Sec. 4402(f).

    The FTC was directed under the Act to develop requirements as to the size, color, and typeface of the required warnings, and was given responsibility for determining

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    the best placement of the warnings on packages. 15 U.S.C. Sec. 4402(b)-(c).

    In July 1986, the FTC published a notice announcing proposed regulations and raising several particular questions for commenters to address. Among these questions, the Commission signalled its skepticism about the appropriateness of requiring health warnings on "utilitarian objects intended for personal use." See 51 Fed.Reg. 24,375, 24,379 (1986). In response to its invitation to comment, the Commission received several submissions directly addressing the issue of utilitarian objects. The Act's chief sponsors in the Senate (Sens. Hatch, Kennedy, and Lugar) and in the House (Reps. Synar and Waxman) submitted statements expressing their shared view that Congress had not intended to grant the FTC the power to create this sort of exemption to the Act. See J.A. at 35-36, 37-40 ("Congress could not have been more clear that the only form of advertising exempted from the requirement to display health warnings was outdoor billboards." (emphasis in original)). Of the comments discussing utilitarian items, only those submitted by two representatives of the smokeless tobacco industry supported the proposed exemption. See J.A. at 75-76, 77-78. These commenters relied primarily on the fact that warnings on utilitarian items had never been required in the cigarette context, 3 and their sense that smokeless tobacco products should not "be treated less favorably than cigarettes in this respect." J.A. at 78 (comment of the Smokeless Tobacco Council).

    The FTC promulgated final regulations that were published on November 4, 1986, see 51 Fed.Reg. 40,005, which purported to implement the warning requirement for advertising subject to the following exceptions:

    This requirement is not applicable to company and divisional names, when used as such, to signs on factories, plants, warehouses, and other...

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