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Proposed Rule

Request for Comments Concerning Regulations Implementing the Comprehensive Smokeless Tobacco Health Education Act of 1986; Termination of Regulatory Review

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Federal Trade Commission.


Notice of Termination of Regulatory Rule Review.


The Federal Trade Commission (“FTC” or “Commission”) has terminated the regulatory review of its regulations (“smokeless tobacco regulations”), implementing the Comprehensive Smokeless Tobacco Health Education Act of 1986 (“Smokeless Tobacco Act”).


December 3, 2009.


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, (

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

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In 1986, Congress enacted the Smokeless Tobacco Act, requiring manufacturers, importers, and packagers of smokeless tobacco products to display on a rotating basis one of three statutory health warnings on product packages and in most advertising (other than billboards). The 1986 Smokeless Tobacco Act also directed the FTC to issue implementing regulations governing the format and display of the health warnings. The Commission issued its smokeless tobacco regulations on November 4, 1986.[1] 51 FR 40015. The Smokeless Tobacco Act also directed the FTC to review and approve, Start Printed Page 3665if appropriate, smokeless tobacco plans specifying how affected companies planned to comply with the rotational warning requirements specified in the Smokeless Tobacco Act and the implementing regulations.

On March 7, 2000, the Commission published a request for public comment on the regulations, 65 FR 11944, as part of its periodic review of its trade regulation rules and guides. The purpose of the review was to determine whether the existing smokeless tobacco regulations continued to meet the goals of the Smokeless Tobacco Act and to provide the protections intended when they were promulgated. The comment period was extended twice in 2000, 65 FR 26534 (May 8, 2000) and 65 FR 60899 (Oct. 13, 2000). The request for comments elicited 39 written responses.[2] Virtually all of the comments supported the continuation of health warnings on smokeless tobacco packages and in advertising. Most comments also recommended that the FTC amend its regulations to require stronger, more effective, and more enforceable health warning requirements. Members of the smokeless tobacco industry recommended against any amendments, stating that the existing regulations effectively served the purpose of the Smokeless Tobacco Act.

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, amends the Smokeless Tobacco Act to require new size, format, and display requirements for the statutory health warnings, and to transfer authority over the review and approval of rotational warning plans to the Secretary of the Department of Health and Human Services (“DHHS”). The Family Smoking Prevention Act also gives the Secretary of the DHHS authority to change the warning statements and to change the size, format, and display requirements of those warnings. The statute specifies that the new warning scheme for smokeless tobacco products will become effective by July 2010.

Given the new statutory size, format, and display requirements, and the transfer of authority over the health warnings to the DHHS, the Commission’s regulatory review has been terminated.

By direction of the Commission.

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Donald S. Clark,


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1. The original regulations exempted utilitarian items such as hats or other personal items. The exemption was challenged, and the Court of Appeals for the District of Columbia ordered the Commission to delete the exemption. Public Citizen v. FTC, 869 F. 2d 1541 (D.C. Cir. 1989), aff’g, 688 F. Supp. 667 (D.D.C. 1988). As a result, the Commission amended its regulations to include provisions for the rotation and display of the statutory warnings on utilitarian items. 56 FR 11654 (Mar. 20, 1991).

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2. The commenters included Members of Congress, officials at federal, state, and local government health agencies, the largest smokeless tobacco manufacturer, the smokeless tobacco trade association, a manufacturer of cigarettes and smokeless tobacco products, public health organizations, and individuals.

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[FR Doc. 2010-1043 Filed 1-21-10; 8:45 am]