Tobacco Documents Online

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ARNOLD & PORTER
1200 NEW MAMPSMIRE AVENUE. N. W.
wASNtNGTON, D. C.2003d
1060 u"COL" iT"LET
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(303) .32-2900
July 10, 1981'
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James H. Sneed, Esquire
Director
Bureau of Consumer Protection
Federal Trade Commission
Washington, D.C. 20580
(aos) .72-0700
Re: Implications of Barclay
Filter on FTC "Tar"
Testing Program
Dear Mr. Sneed:
As counsel to Philip Morris Incorporated, we are
hereby transmitting the Company's request for your urgent
consideration of and prompt action on a serious and sub-
stantial issue which fundamentally affects the integrity of
the Commission's longstanding -- and heretofore success-
ful -- "tar" and nicotine testing program.
Substantial concerns have been voiced that a peculiar
new type,of.filter used on Barclay cigarettes defeats the
basic purpose of the FTC's "tar" testing program, namely,
to provide data permitting consumers to make an informed
comparison of the "tar" delivered by different cigarette
brands. Barclay is now being widely marketed by Brown &
Williamson Tobacco Corporation, a subsidiary of BAT Industries
Ltd., the world's largest privately-owned tobacco company,
and supported with,an advertising and promotional campaign
of unprecedented proportions.
As a result of its unusual construction, the Barclay
filter is duplicitous -- it functions one way on the Commission's
present smoking machine but in a radically different way in
the smoker's mouth. While Barclay is proclaimed to be an
"ultra low tar" cigarette, in truth and in substance it is
not. By artful design, the Barclay filter exploits a loop-
hole in the testing protocol and thereby effectively destroys

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ARNOLD & PORTER
James H. Sneed, Esquire
July 10, 1981
Page Two
the reliability of the "tar" rankings produced by the
current FTC testing method. It also subverts the long-
standing agreement between the Commission and the cigarette
manufacturers governing "tar" disclosure in advertising.
In response to your staff's recent request for
comments on the questions raised about the Barclay filter,
Philip Morris has today submitted the attached technical
memorandum which explains in some detail how the Barclay
filter circumvents the smoking machine. The memorandum
describes the pivotal role of dilution in determining "tar"
delivery -- the greater the dilution, the lower the "tar."
It demonstrates how the peculiar construction of the Barclay
filter -- using impermeable channels that totally segregate
dilution air from "tar"-yielding 9moke -- results in high
dilution and therefore low "tar" on the machine, but rela-
tively little dilution and substantially higher "tar" when
the cigarette is smoked in the mouth, where the inner
surfaces of the lips partially or totally close off the
dilution channel exits. The memorandum further demonstrates
that no other filter produces such a change in dilution and
"tar" between the smoking machine and the smoker's mouth.
As we have stated to the staff, the loophole in the
Commission's testing program which Barclay exploits can be
easily corrected by modifying the cigarette holding device
used in the testing apparatus. But the damage to the
usefulness and trustworthiness of the Commission's testing
program already caused by the massive advertising and
promotion of Barclay as "99% tar free" and as a one milli-
gram "tar" cigarette "by FTC method" has profound and far-
reaching implications that require more than a future change
in the Commission's testing equipment. According to its
manufacturer's claims, Barclay's massive advertising and
promotion have already attracted approximately 1.2% of the
market -- roughly equivalent to 700,000 consumers -- many of
whom are undoubtedly relying upon the brand's ultra low
"tar" representations. Moreover, Brown & Williamson is

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	ARNOLD &	PORTER
	James	H. Sneed, Esquire
1	July	10, 1981
	Page	Three
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reportedly about to incorporate the Barclay filter on other
brands. Business Week, July 13, 1981, at 72.
In the absence of prompt and effective measures by
the Commission to close the loophole exploited by Barclay,
it must be assumed that other manufacturers will feel free
to incorporate similarly functioning filters on their own
products. The inevitable proliferation of such altered
products -- all claiming to fall within the "ultra low tar"
category "by FTC method," even though their actual deliveries
to the smoker will remain basically unchanged -- will
demolish the credibility of the-Commission's "tar" testing
program. The result will be a marketplace in which com-
peting brands can no longer be differentiated from one
another on the basis of the "tar" rankings derived through
the FTC method. '
regarding "tar" advertising.
The foregoing considerations, and the supporting
information in our attached technical memorandum, will come
as no surprise to Brown & Williamson. In November 1980,
when Barclay was still in test markets, Philip Morris
provided Brown s Williamson with detailed information
demonstrating the differential functioning of the Barclay
filter on the smoking machine as contrasted with its opera-
tion in the smoker's lips. Nevertheless, Brown & Williamson
chose to continue to expand its distribution and promotion
of Barclay in the teeth of this information as to the
damaging effect of the filter on the integrity of the
Commission's testing program and the FTC-industry agreement
As evidenced in materials transmitted to the major
companies by your staff, R.J. Reynolds Tobacco Company had
independently reached conclusions similar to those of Philip
Morris regarding the operation of the Barclay filter. Thus,
the Commission has now received evidence from at least two
major research laboratories with long experience in cigarette
testing, showing that Barclay -- unlike any other brand --
operates on the smoking machine in a radically different
manner than it does in the smoker's mouth.

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ARNOLD & PORTER
James H. Sneed, Esquire
July 10, 1981
Page Four
Accordingly, for the reasons discussed above and more
fully developed in the accompanying memorandum, Philip
Morris urges that the following steps be taken immediately
by the Commission:
First, Brown & Williamson should be notified by the
Commission forthwith that serious and substantial questions
have been raised regarding the validity of Barclay's "tar"
claims, and that pending final resolution of the issue by
the Commission, Brown & Williamson (1) should cease making
any direct or indirect representations in its advertising,
packaging or promotional materials as to Barclay's "tar"
yield but (2) should include a sthtement in all Barclay
advertising, in lieu of the present FTC "tar" disclosure,
that Barclay's "tar" delivery is not properly determinable
by present FTC method.
Second, the Commission should not include Barclay in
its forthcoming periodic "Report of 'Tar', Nicotine and
Carbon Monoxiae Content of the Smoke of [Various] Varieties
of Cigarettes" if the present FTC method is utilized.
Barclay"should be included in future reports only after
having been tested in accordance with a suitably modified
testing protocol.
Third, in order to preserve the integrity and re-
liability of its "tar" testing-program, the Commission
should inform all interested parties regarding the interim-
action it is taking in connection with this matter.
a
. Finally, as recommcnded to your staff, the Commission
laboratory should promptly modify the cigarette holding ~
device used in its apparatus, in the manner proposed by ©
Philip Morris, in order to insure valid and reliable com- ~N
parative "tar" results for all cigarette brands on the ~
market. All cigarette manufacturers should be immediately ~
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ARNOLD & PORTER
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James H. Sneed, Esquire
July 10, 1981
Page Five
notified of the modification adopted, and should thereafter
be required to report "tar" results "by FTC method" only in
accordance with test results obtained by use of the modified
holding device.
Sincerely yours,
ARNOLD & PORTER
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Abe Krash
Jerome I. Chapman
Hadrian R. Katz
Alexander Holtzman
G. Carlton Adkins
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Counsel for Philip Morris
Incorporated
cc: Chairman David Clanton
Commissioner Paul Rand Dixon
Commissioner Michael Pertschuk
Commissioner Patricia Bailey
Wallace S. Snyder, Esq.
Matthew L. Myers, Esq.