Notice2024-15480
Agency Information Collection Activities; Submission for OMB Review; Comment Request; Extension
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 15, 2024
Issuing agencies
Federal Trade Commission
Abstract
The Federal Trade Commission ("FTC" or "Commission") has clearance from the Office of Management and Budget ("OMB") to send information requests, pursuant to compulsory process, to a combined ten or more of the largest cigarette manufacturers and smokeless tobacco manufacturers. The information sought includes, among other things, data on the manufacturers' annual sales and marketing expenditures for cigarettes, smokeless tobacco products, and electronic devices used to heat non-combusted cigarettes, and sales of tobacco-free nicotine lozenges and pouches. The current OMB clearance for this information collection expires on August 31, 2024. Accordingly, the Commission is providing this second opportunity for public comment while seeking OMB approval to renew the pre-existing clearance and to modify the existing clearance to allow for the collection of additional information concerning annual marketing expenditures for tobacco-free nicotine lozenges and pouches by smokeless tobacco manufacturers or related companies.
Full Text
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<title>Federal Register, Volume 89 Issue 135 (Monday, July 15, 2024)</title>
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[Federal Register Volume 89, Number 135 (Monday, July 15, 2024)]
[Notices]
[Pages 57412-57414]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-15480]
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FEDERAL TRADE COMMISSION
Agency Information Collection Activities; Submission for OMB
Review; Comment Request; Extension
AGENCY: Federal Trade Commission.
ACTION: Notice.
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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') has
clearance from the Office of Management and Budget (``OMB'') to send
information requests, pursuant to compulsory process, to a combined ten
or more of the largest cigarette manufacturers and smokeless tobacco
manufacturers. The information sought includes, among other things,
data on the manufacturers' annual sales and marketing expenditures for
cigarettes, smokeless tobacco products, and electronic devices used to
heat non-combusted cigarettes, and sales of tobacco-free nicotine
lozenges and pouches. The current OMB clearance for this information
collection expires on August 31, 2024. Accordingly, the Commission is
providing this second opportunity for public comment while seeking OMB
approval to renew the pre-existing clearance and to modify the existing
clearance to allow for the collection of additional information
concerning annual marketing expenditures for tobacco-free nicotine
lozenges and pouches by smokeless tobacco manufacturers or related
companies.
DATES: Comments must be filed by August 14, 2024.
ADDRESSES: Interested parties may file a comment online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Written comments and
recommendations for the proposed information collection should be sent
within 30 days of publication of this notice to <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information collection by selecting
``Currently under 30-day Review--Open for Public Comments'' or by using
the search function.
FOR FURTHER INFORMATION CONTACT: Michael Ostheimer, Division of
Advertising Practices, Bureau of Consumer Protection, Federal Trade
Commission, 600 Pennsylvania Avenue NW, Mailstop CC-10507, Washington,
DC 20580, (202) 326-2699.
SUPPLEMENTARY INFORMATION:
A. Background
Pursuant to section 6(b) of the FTC Act, 15 U.S.C. 46(b), the
Commission collects information on sales and/or marketing of
cigarettes, smokeless tobacco products, tobacco-free nicotine lozenges
and pouches, and electronic devices used to heat non-combusted
cigarettes (collectively, ``subject products'') from manufacturers of
cigarettes and smokeless tobacco products. Depending on the type of
product a manufacturer produces, the Commission requests the
information using two different instruments--that is, a Cigarette Order
or a Smokeless Tobacco Order. The Commission compiles and publishes the
data in two periodic reports.
The current OMB clearance to collect this information is valid
through August 31, 2024 (OMB Control No. 3084-0134). On March 26, 2024,
the Commission sought public comment on its proposal to renew its
current OMB clearance, and to modify its existing clearance to allow
for the collection of additional information concerning annual
marketing expenditures for tobacco-free nicotine lozenges and pouches
by smokeless tobacco manufacturers or related companies. See 89 FR
20967 (Mar. 26, 2024). In response to the Federal Register Notice, the
Commission received three germane comments, consisting of comments from
two individual commenters and the Truth Initiative, a nonprofit tobacco
control organization. The following section contains a discussion of
the comments and the Commission's responses.
B. Discussion of Comments
Two of the three comments express the commenters' strong support
for the information collection,\1\ while one individual commenter
generally asserts that government resources spent on collecting this
information should be spent on other ``much bigger issues''
[[Page 57413]]
instead.\2\ As discussed below, the Commission finds the collection of
the information necessary and useful. Because the remainder of this
comment is not germane to this clearance request, the following
discussion focuses on the two supportive comments.\3\
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\1\ Comment from Truth Initiative (May 28, 2024), available at
<a href="https://www.regulations.gov/comment/FTC-2020-0049-0014">https://www.regulations.gov/comment/FTC-2020-0049-0014</a> [hereinafter
Truth Initiative Comment]; Comment from Andy Hernandez (Mar. 27,
2024), available at <a href="https://www.regulations.gov/comment/FTC-2020-0049-0010">https://www.regulations.gov/comment/FTC-2020-0049-0010</a>.
\2\ See Comment from DarkSoul Longlegs (Apr. 5, 2024), available
at <a href="https://www.regulations.gov/comment/FTC-2020-0049-0011">https://www.regulations.gov/comment/FTC-2020-0049-0011</a>.
\3\ Aside from the commenter's general assertion that ``[t]here
are much bigger issues [that should be] track[ed],'' the remainder
of the comment discusses general policy matters, such as access to
healthcare, marijuana usage, and reproductive rights. See id.
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Both supportive comments discuss the usefulness of the collection
of the information. Specifically, both supportive comments note that
the FTC's Cigarette and Smokeless Tobacco Reports provide critical data
to researchers, policymakers, advocates, and the general public.\4\
Truth Initiative also reiterates the ``powerful utility'' of the FTC's
Cigarette and Smokeless Tobacco Reports by noting that the FTC's
Cigarette and Smokeless Tobacco Reports ``provide information that is
not available elsewhere,'' and ``often provide the basis for strong
public health policies with regard to tobacco use and marketing.'' \5\
Additionally, Truth Initiative expresses its approval of the
Commission's practice of updating its Cigarette and Smokeless Tobacco
Orders to ensure that the resulting reports continue to be relevant and
reflect the current cigarette and smokeless tobacco market.
Specifically, in this context, Truth Initiative agrees that there is a
need to modify the existing clearance to allow for the collection of
information concerning annual marketing expenditures for tobacco-free
nicotine lozenges and pouches by smokeless tobacco manufacturers or
related companies because (1) the sales of tobacco-free nicotine
lozenges and pouches more than doubled between 2020 and 2022, and (2)
these products appear to be especially popular with youth.\6\ Before
proceeding to discuss Truth Initiative's recommendations, the
Commission would like to note that it appreciates the comments, as they
underscore the necessity of this information collection.
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\4\ See supra note 1.
\5\ See Truth Initiative Comment, supra note 1.
\6\ See id. (citing Jan Birdsey et al., Tobacco Product Use
Among U.S. Middle and High School Students--National Youth Tobacco
Survey, 2023, 72 Morbidity and Mortality Wkly. Rep. 1173 (Nov. 3,
2023), available at <a href="https://doi.org/10.15585/mmwr.mm7244a1">https://doi.org/10.15585/mmwr.mm7244a1</a>).
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As part of its comment, Truth Initiative also makes the following
recommendations--each of which would expand the scope of the
information collection. First, Truth Initiative recommends that the
Commission request information regarding low nicotine cigarettes. Truth
Initiative points out that, in December 2019, the U.S. Food and Drug
Administration authorized the marketing by one company of two new
tobacco products, which are combusted, filtered cigarettes that contain
a reduced amount of nicotine compared to typical commercial
cigarettes.\7\ Truth Initiative acknowledges that ``the market share of
these products is extremely small compared to other products,'' but
notes that ``it is important that we understand the kind of marketing
that is used to promote these products.'' \8\ It recommends that the
Commission add the manufacturer of these two products to the list of
companies ``required to fill out future Cigarette Orders.'' \9\
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\7\ Food and Drug Administration, FDA Permits Sale of Two New
Reduced Nicotine Cigarettes Through Premarket Tobacco Product
Application Pathway (Dec. 17, 2019), available at <a href="https://www.fda.gov/news-events/press-announcements/fda-permits-sale-two-new-reduced-nicotine-cigarettes-through-premarket-tobacco-product-application">https://www.fda.gov/news-events/press-announcements/fda-permits-sale-two-new-reduced-nicotine-cigarettes-through-premarket-tobacco-product-application</a>.
\8\ See Truth Initiative Comment, supra note 1.
\9\ See id.
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The Commission's Cigarette Reports focus on the largest cigarette
manufacturers and do not attempt to present a complete picture of the
cigarette market. There are numerous smaller manufacturers and
importers of cigarettes to which the Commission does not direct its
cigarette Orders. Even if the Commission were to direct an order to the
one company selling low nicotine cigarettes, it could not publish data
regarding ``low nicotine'' cigarettes because doing so would result in
publishing the one company's confidential commercial information.
Accordingly, at this time, the Commission does not intend to seek
information specifically regarding low nicotine cigarettes, or to
direct an Order to the one company marketing such products.
Second, Truth Initiative suggests that the Commission collect and
report on information about the content of advertisements for certain
products, such as heated, non-combusted cigarettes and oral nicotine
products; specifically, whether such products are being advertised as
less harmful or better alternatives to traditional cigarette and
smokeless tobacco products or as lifestyle products. In support of this
recommendation, Truth Initiative notes that, for example, the marketing
of oral pouch products as ``tobacco-free'' alternatives to smoking may
lead consumers to ascribe lower risks to these products, despite a lack
of evidence or proper federal authorization.\10\ Truth Initiative also
recommends that the Commission collect information on how ``tobacco
companies'' use sponsored content in major media outlets to shift
public perception. In support of this recommendation, Truth Initiative
notes that ``[t]obacco companies . . . [are] spending millions on ads
designed to reposition them as aligned with public health.'' \11\
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\10\ See id. (citing Patel Czaplicki et al., Oral Nicotine
Marketing Claims in Direct-Mail Advertising, 31 Tobacco Control 663
(2022), available at <a href="https://doi.org/10.1136/tobaccocontrol-2020-056446">https://doi.org/10.1136/tobaccocontrol-2020-056446</a>).
\11\ See Truth Initiative Comment, supra note 1 (citing Robin
Koval et al., Tobacco Industry Advertising: Efforts to Shift Public
Perception of Big Tobacco with Paid Media in the USA, 32 Tobacco
Control 801 (2023), available at <a href="https://doi.org/10.1136/tobaccocontrol-2021-057189">https://doi.org/10.1136/tobaccocontrol-2021-057189</a>).
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With respect to Truth Initiative's suggestion that the Commission
collect information on certain types of advertising content, the
Commission notes that the Cigarette and Smokeless Tobacco Reports have
historically provided data on sales and advertising expenditures.
Additionally, the Commission believes that expanding the scope of the
requests to include this type of information would divert critical
resources from other mission priorities. Therefore, the Commission
declines to make these proposed modifications.
Third, Truth Initiative recommends that the Commission collect
marketing data on cigars, and notes that ``[y]outh use cigars at rates
similar to cigarettes, making marketing information around cigars
equally important.'' \12\ The Commission respectfully declines the
commenter's recommendation to seek marketing data on cigars as part of
its information requests. The Commission believes that doing so would
divert critical resources from other mission priorities. Fourth, Truth
Initiative recommends that the Commission collect data on the organic,
or unpaid, promotion of tobacco products by influencers on social
media. According to Truth Initiative, the FTC's Cigarette and Smokeless
Tobacco Reports leave ``out a crucial and significant segment of how
tobacco product use is promoted'' because (1) ``[t]obacco content is
commonplace on social media,'' and (2) ``[r]esearch shows exposure to
tobacco content on social media doubles the odds of tobacco use among
young people compared to those who are not exposed.'' \13\ Truth
Initiative also
[[Page 57414]]
suggests the Commission try to quantify this information by gathering
data from social media companies. As noted above, this type of
gathering and analyzing advertising content and assessing the impact of
that advertising is beyond the scope of these reports.\14\
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\12\ See Truth Initiative Comment, supra note 1.
\13\ See id. (citing Scott I. Donaldson et al., Association
Between Exposure to Tobacco Content on Social Media and Tobacco Use,
176(9) JAMA Pediatrics 878 (July 11, 2022), available at <a href="https://doi.org/10.1001/jamapediatrics.2022.2223">https://doi.org/10.1001/jamapediatrics.2022.2223</a>; Daniel K. Cortese et al.,
Smoking Selfies: Using Instagram to Explore Young Women's Smoking
Behaviors, Social Media + Society 4(3) (Aug. 7, 2018), available at
<a href="https://doi.org/10.1177/205630511879076">https://doi.org/10.1177/205630511879076</a>).
\14\ Truth Initiative recognizes that gathering information from
social media companies is beyond the scope of these information
requests. See Truth Initiative Comment, supra note 1.
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Truth Initiative also notes that one of its studies, which examined
vaping influencers on Instagram, found that ``most influencer posts
promoting vaping products were unambiguous vaping advertisements
promoting a specific brand or product,'' and the majority of them did
not disclose the influencer's brand relationship.\15\ Accordingly,
Truth Initiative also urges the Commission to take enforcement actions
against such social media posts on the basis that the influencers'
failure to disclose their brand relationship constitutes a violation of
the FTC's Endorsement Guides (16 CFR part 255). Because any such
enforcement actions would be independent from the Commission's
Cigarette Orders and Smokeless Tobacco Orders, this recommendation is
not germane to this clearance request.
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\15\ Truth Initiative Comment, supra note 1 (citing Nathan A.
Silver et al., Examining Influencer Compliance with Advertising
Regulations in Branded Vaping Content on Instagram, 10 Front. Public
Health (Jan. 9, 2023), available at <a href="https://doi.org/10.3389/fpubh.2022.1001115">https://doi.org/10.3389/fpubh.2022.1001115</a>).
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Accordingly, for the foregoing reasons, the Commission declines to
make any adjustments to its prior burden estimates or to modify its
initial proposal.
C. Overview of Information Collection
Title: FTC Cigarette and Smokeless Tobacco Data Collection.
OMB Control Number: 3084-0134.
Type of Review: Revision and extension of currently approved
collection.
Likely Respondents: Parent companies of the largest cigarette
companies and smokeless tobacco companies.
Estimated Annual Burden Hours: 3,540 hours.
Estimated Annual Labor Costs: $407,100.
Estimated Annual Non-Labor Costs: $0.
Abstract: Pursuant to section 6(b) of the FTC Act, 15 U.S.C. 46(b),
the Commission collects information on sales and/or marketing of the
subject products from manufacturers of cigarettes and smokeless tobacco
products. The Commission then compiles and publishes the data in two
periodic reports.
The Commission's section 6(b) Orders seek data regarding, among
other things: (1) the cigarette or smokeless tobacco sales of industry
members; (2) how much industry members spend advertising and promoting
their cigarette or smokeless tobacco products, and the specific amounts
spent in each of a number of specified expenditure categories; (3)
whether industry members are involved in the appearance of their
cigarette or smokeless tobacco products or brand imagery in television
shows, motion pictures, on the internet, or on social media; (4) how
much industry members spend on advertising intended to reduce youth
cigarette or smokeless tobacco usage; (5) the events, if any, during
which industry members' cigarette or smokeless tobacco brands are
televised; and (6) how much industry members spend on public
entertainment events promoting their companies but not specific
cigarette or smokeless tobacco products or such products generally. The
information requests to cigarette companies also seek information
pertaining to the annual sales, giveaways, and marketing expenditures
for electronic devices used to heat non-combusted cigarette products,
and the information requests to smokeless tobacco companies also seek
information pertaining to the annual unit and dollar sales of tobacco-
free nicotine lozenges and pouches. Once the Commission's clearance
request has been approved by OMB, the Commission's information requests
to smokeless tobacco companies will also seek information concerning
sales and advertising and promotional expenditures for tobacco-free
nicotine lozenges and pouches, including the specific amounts spent in
each of a number of specified expenditure categories.
D. Request for Comment
Pursuant to OMB regulations, 5 CFR part 1320, which implement the
Paperwork Reduction Act of 1995, as amended, 44 U.S.C. 3501 et seq.
(``PRA''), the FTC is providing this second opportunity for public
comment while seeking OMB approval to renew and modify the pre-existing
clearance as described above. For more details about the information
collection and the basis for the calculations summarized above, see 89
FR 20967.
Your comment--including your name and your state--will be placed on
the public record of this proceeding. Because your comment will be made
public, you are solely responsible for making sure that your comment
does not include any sensitive personal information, such as anyone's
Social Security number; date of birth; driver's license number or other
state identification number or foreign country equivalent; passport
number; financial account number; or credit or debit card number. You
are also solely responsible for ensuring that your comment does not
include any sensitive health information, such as medical records or
other individually identifiable health information. In addition, your
comment should not include any ``[t]rade secret or any commercial or
financial information which is . . . privileged or confidential''--as
provided in section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule
4.10(a)(2), 16 CFR 4.10(a)(2)--including, in particular, competitively
sensitive information, such as costs, sales statistics, inventories,
formulas, patterns devices, manufacturing processes, or customer names.
Josephine Liu,
Assistant General Counsel for Legal Counsel.
[FR Doc. 2024-15480 Filed 7-12-24; 8:45 am]
BILLING CODE 6750-01-P
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