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Of f i'cial translation ~' C vaso l W G-(' N -I I-t !res tercarkt 2 - 1016 Df; ::msterdam DVERTISING . , Teliephone .020-257690/2577'21 CODE~ Fi~le 37 ®6 C01'F4IT 1P.E S Dz CISION ?he Advertising Code Co-ittee has taken cogr.isance of a complaint, submi'tted by Philip Plorris Holland B.V., hereinaf ter called Philip TSorris,, Vith itsl head office at Amstelveen, concerning advertising, statemests by British American sobaceo Conpany (i+ederland)' D.V. , hereinafter called BAT, vith its head office at :msterda=. The cooplaint concerns- El.T"s advertising, statenernts for the aarr q;~~ Barclay cig4rette. Two examples of these statements - the gist of which, accordine, tol Philip INorris, is t]_et t:-e 3arclay cigarette has an ,"unezpected taste" for its :::zltra- lo^.-: tar" co.:tent because, despite its `' low ~~r conj ,:eZ-, z., me:.ertheless has a full tobacco taste; and "neverthele~s (' tastes enjoyable" - are attached to this prono,LnceaE^t. ?hilip P.orris 's ob jectioni is firstly thet it is cisleadi ng, i n advertising for the =arclzy cigarette, to draw attention to the tar and nicotine figures which this cigarette received. on the, smoking machine and to make it appear aW if t'_.:e Barclay cigarette on the one hand has indeed the taste of cigare .t'es with higher tar contents but on the other hand *eloags to the "ultra-low tar" class.

I1aterially and succinctly - for the full arguments the Gommittee . j refers readers to the actual complaint which is considered to be inserted here - Phi~lip Morris, who: submitted a large number of documents, explained this point of view as follows: 1. 1:'hile other brands of' cigaret'tes, if tested on, the smoking machine with regard to their tar and nicotine figures, yield more or less the same results as when tested'. via test subjects, the Barclay cigarette is the only one which shows a significant difference for "human smolcing" in relation to "nachine smoking": with human smoking the tar content of the Barclay cigarette is found to be approx. 3' to approx. 9 mg,while with nachine smoking a tar content of 1 mg is obtained. 'This difference is ascribable exclusiveliy to the filter, which produces an. arti sicial leak uring machine smoking while d::rir.o normal "th;:man smoking" this leak is unavoidably pre've n±e'd. 2. Thus the: tar ar.di nicotine fig;,ires obtained by Jarcla;: ! cigarettes oc the smoking machine are not cooparabSe for the smoker with lhe~ figures which are obtained for other cigzrettess a e e th hi . c n e san m oz 3. The "unexpected" taste of the Barclay cigarette is also explained'by the difference pointed out •in 1. above because tar is: one of the taste-determininb fzc tors ; that is why ~ the Barclay cigarette does not taste like a cigarette with ~ a tar content of 1 mg, cigarettes in this category being ~, ~ fno:rn to bava little taste. ~~ ~ ~ ~

3 Philip Morris also alle ged that~ the advertising, statemen.s for the Barclay cigarette conflict with t'he truth and are harmfLil to the general interest. In its defence document, which is regarded as beinE inserted here, BAM, which also submitted a large number of documentsr examined exhaustively the arguments on which the allegations by rhilip •orris reproduced in 1. to 3. above are based. BAl' s arguments were that. , 1) there is no difference between the legal tax content - the tar content as measured on the smoking machine in accoraance uith the NMI 3382 method prescribed in the Cigzrette and Sheg,.;arki'nS,Order - and the actual tar co^tent of the Barclay cigarette; Philip Mor_is' allegation rebarding the "4rtificial" leak which is stated to occur when the Darcle;r ci~ ette is ;,ested'l on the smo1°ing machine i 3) the smok_ng machine is rather an etpara,us k icn leads fspecially in the case of the Barclay cigsrette to negative <~ . resr1lts coupared with the result yielded by human smoking. BAT also pointed' to the fact that the Cigarette and Shag Marking Order is binding in law and' there i~s no point in~ arguing about O taste because that is a subjective matter. ~ ~ w. . ~ The Code C'omnittee dealt wi'th the complaint at its nee ting of ~ ,NJ 8 t h;•;a y 198q'.. 'A W

T;^e followi~zg were present at the meeting: on behalf of Philip Morris: 1. Jhr. J.A.•Stoop 2. F.O.W. Vogelaar, on behalf of BAT 11. botb lawyers of The hugue Ch. Gielen, lawyer, hmsterdan. Jhr. Stoop and Mr. Vogelaar were accompanied, by 1•:r. R.R.F. van, Roode, ~ Mr. G.L. de Bruin and Mr. H'. Gaisch; I:r. Gielen by Prof. E.P. Uster, P:r. F.: van Vliet and i~ir. A. van~ 1•lP-ai j.. Mr. Vogelaor, went into, some detail concerning, inter elia, the technique of ventilating,cigarettes and about the policy intention of the Ministry of ;:elfare, Health and' Cultural Affairs to adapt t2:e~ standard to be newly introduced for the tnst methods for cigarettes in such a way that a more realistic test result is obtained for cigarettes with e b;fpass~filter then, has been the case to date. Kr. Vogeliaar drew attention to the fact, that the barclay ciga:rette is the only cigarette of any significance : ith such a filter on the Dutch market. 2;r. Stoop againd stressed t'ha tPhilfp~ 11orris Is conpiaint was~ not concerned with the packaging of' I3arcliay an& therefore not with the simple statement "11 mg tar" on the packet, but with the fact tha.; BAT in its advertising, linked the lov tar content

of' 1 ag with the unexpected taste for a cigarette with tha t tar content. In this way, ?ir. Stoop alleged, now that B.1T ignores the fact that the present test method'yields misleading results wit'h cigarettes with, a by-pass filt'er, apples are being compared'& with pears:, which conflicts with article 7'(incompleteness), and' with article 1i (conflict with the: trsth), and article 4 (conflict With the general interest). ?n this connection Mr. Stoop contested._BAT's statezent t?aata taste is a sub jiec tive matter which dioes no t lend itself to j':,adgenent by tne~ Code Committee: by "pleasant tasting" ' in advertising stateaent ib, I:r. £toop erguedl, B,y^ nezns that `v~',.eir, Barc1aV c,igaret te' has the taste of 2' cigcre t te wi th , a higper tar content, for a cigarette wi.h the stated tar contentt or' 1 mg the Barcl2jy cigzret.e has an unexpected taste; i r. ;.: at way y_1%T very clearly establishes a relation betr:een the ter content o~~' t:^e Barclay ci€arette andi its tes;e . This, Mr. Stoop concluded,, i!s definitely an objective, factual natter ;r:nich lends itself to t'estina against the Code~.~ Inter a1'ia, 2:r. Gielen denied that there was eny, cueWtion of' a polilcy intention of the kind referred to by ;;i. 'logelaar: the test method referred to would, as~ shovm by the followinC note to the Ias;. Draft Order oZ test nethods, zPplied 7,o alli

did ventilated cigarettes and/ not accord a special place to Barclay: •,r,lrthermore, I1TEE27 3382 has been adjusted in such a way that the prebl'ens relating to ve'nti'lated cigarettes end cigarettes fitted with a by-pass filter have been solved so far as their test me'thod is concerned."' ;Ir. Gielen also stated, inter' alia, that a) the taste of the Barclay cigarette is explained by the ~spatial s,innz tion of sensory stimuli achieved' b;~ t.he rctron fil ter; the correctness of the statutory statenent of 1 nd of tax neans that claims in connection therewith ca=ot be mislead'ing. ~ofEs'sor i:i6ste_ then gzve an explanation of the expression "spatial snz^at'_on of sensory stimuili". ; inzlly the three legal advisors were again given an opportnnity to provide a C'©'-=+e^t2Ty' on EaCf7 other's StcteDE:Su SilL o'Sey also suemitted t2aeir respective case notes. Before the session, both Philip Morris and DaT had also introduced a::mber c•f further documents into the case. DECISI0Y The Code ComDit tee considers the complaint 1:..~:fou-nded' end considered the following points in reac2nin& tha t decisio^:'

A. Whatever the situation with regard to t'he question of whether it has been es tablished, with sufficient certainty thE t the human smoker of the Barclay cisarette takes in more tar durine normal snokins, than is, indicated by the usual smoking machine, it is, . ~ at any rate definite that a. section 1, para. 2, of the Cigarette and Shag, F:e.rki:g Order (Enod'~ and Drug~s~ Act) ~ imposez the~ obliga~tion~ to~ s~tat& on t'he~~ packets of cigarettes what the tar and! nicotine content of the cigarettes is according to the method stated by the I Irrilnisters concerned; b. in the order implieaentiing, the aforesaid s ction it is laid down that detezcination of the tar and' nicotine contents iln ci6arettes shall be carried out in accordance with thei method specified in the Latc : standard 1 EI3 3382 Ost editicz, Ju13, 1,57;2 ) ; . the Barclay ci„arette tested in accordance v:i!th that nethod azs~ a tar content of 11 mg'; d. no rule of law, _`orbidls B1!'T to dralr, atte n-:ioz in its ad1ert_sements'' to the tar and nicotine content which Barela.• has when, tested f in accordance with that method, so that BaT is free in, principle to do so. The question now is whether BAT has acted mislead'ingly or i'n; conflict with the truth and therefore also with the generall interest, by estab'_ishing, a, eonnectioni between the "s tated" tar conten: of i' mg and' the taste of the I-arcla~~~ c:--erette..

a. In the 3iudgeaent of Phi'l~ip Horrfis that 'is the, case, because BAT on the one band epeaks of an unexpected taste and on the other s!t,etes the tar content of 1 mg withou.1 poi~.n.:in;; out in doing so that the present test mw thod yields aisleedi::r res:alts for the consruRer of' vent3lated cigarettes• fitted t,ith L b,-pass, filter. :_ss'.i..'.ine even t.:at the latter Werle' the case, undermining the legal sys tem by appoint'ing to t:'~e :act, because the legal'ly oblibatory statement on the packet of cigare t;.es uoul& lose force if advertisers kerE free to 'state or su.g;gest in their advert_sements that their cigarettes in reality cc:^tain aore or less tar. The Committee t: ere_*ore consicers that no right must be g_--esi .'o, qLalify the lecelly i=posed decl'aration, so that it can see no: reason for sppro ving the co_plai,.t on the basis of the alleEed inco=pleteness. . i:or d'ces the CoJ,_ tt'ee consider the cd-..er t; s`.rt ,, _ctezen _.: oz 3:.•_' Wisleadi_ng cr iZ conflict wi~ih the trutYh for ot;::er reasons. in doing so it is guided by the follotuin;; co^sicera:icns- ba. _Tn the context of the adve_tisemer_t the ;.ss"e c:'_ _., ascribed to the Barclay cigarette b;- BP:: is indeed nefini:el.• Zn ob jective fectual matte_ now thct that -.a_ te is ;:nris tEkcbly assoc_ated' with the ter content of 1-n_p , end z-1so i t is: General knowledee :hst ciEare:tes with that tar co- :'e: ~ usuEll•y hsve little taste.

9 bb. mhe Conmittee does not consider itself free! to enter into jndgeDen`' on the question whe ther i t is indeed acceptzble thc't there' is a discrepancy between the leC;a1 and the nac t'1Ilal" tar content of the Barcla'y ci'gZre tte ., ..ece.u'S'e it could therebyy umde mine the legal system. ?or tra t re'tison ( the CoDmittee will start from' the preniss t'hat Bsrclz; i!n fact has only a content of 1 mb, of tar and' uill confine itself to the question of whether BAT has suceeeded, ir.n naking the correctness of its claim with regard to the taste of hs_clay sufficiently aecepta*le,-r,z PI.- t1hat this ciSaret'tee for a cigarette with .1 ag of tar hr:s an unexpected and never- theless enjoyable taste. "tilat qL'est1o'A, is 8rlsaered by the CoS.m1}tee in t}ie' af=irne't1've'. i*he re'port subcitted by 3tiT - the contents of wriez, e:e Moi; gone izto, by Philip 1:orris, so, thst it has to be assumed that Philip: :.orris cannot refute it - by '.:.5. Ca_n! of t_`.e ;o'hz, 3. Pierce Foundation Laborator~• and Yale University, e:t'ion's 'sensory aspec ts of the Barclay cigarette"- not only s an invest=Cation asong, test' sub jescts, o.`' w:^o= most vere in the habit of smoking loW-delivery cigarettes, which invies'igation that b'arclay "'produ'ces~ greater flavour than it& ultralow compe l.l tors ; but also: gi'ves a-vel!1-reasonedand! docunented explanation for same by exa=:ning in detail the contribution v?,ich the Actron filter males to: the "flavor and drew" of shou: coafirroed as to the re1'evant points by rncct was stated by ='rof. Y.25ster.

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