Tobacco Documents Online

,DISCUSSION DRAFT Ingredients Mac/(m)/Advocate Folder -1- RECIPE FOR DISASTER Massochusetts Court Ignores Federal Law, Precedent. In Up~iolding State's Ingredient Disclosure Requirement I some state legislatures have their way, tobacco compani s may be forced to reveal the confidential recipes they use to give their cigarette brands a distinctive taste. Mass chusetts passed a law last year that would require cigarette ompanies to disclose the full list of ingredients used in thei individual brands, along with the recipe of precise amoun s used in each. The Massachusetts law, due to go into effect ater this year, would even require companies to list ingredie ts used in the growing and manufacturing process that are- o longer present in the finished cigarette. Although recently u held by a federal district court, the law continues to face a s rong legal challenge brought by the tobacco industry. New Hampshire, Indi na, Connecticut, Iowa, Maine, Vermont, Texas, Delaware a d New Jersey are all considering similar laws. Cigarette manufacturers a d flavorings to their brands to impart a distinctive taste. hey also add other ingredients to replace sugars lost in the curing process, retain moisture or otherwise facilit te the manufacturing process.

DISCUS_q~ON DRAFT Ingredients Mac/ (m) /Advocate Folder -2- The pecific information concerning exactly what ingredient are used and in what amounts is confidential, entitled to he same protection as the formula for Coca-Cola or McDonald's Big Mac secret sauce. David H, mes, a lawyer representing the tobacco companies, said, "The state (of Massachusetts] would have you believe that the 1 w mirrors disclosure requirements imposed on other businesses, including food and soft drink producers. That simply is not t~ e. Specific flavorings and spices used in foods and beverage~ , o not, as this law would require, have to be specificall i~entified." If one looks at th ingredients listed on a can of Coca Cola, for example, it wi 1 simply list "flavorings," without going into specific detai . That's to prevent competitors from copying Coke's recipe thereby undermining Coca Cola's competitive advantage in th marketplace. The same is true for cigarettes. Nevertheless, consumers ave a right to know the ingredients added to consumer oducts like cigarettes are safe as used. The federal gover ment, seeking to balance the demands of public safety with the Nompetitive demands of the marketplace, set up a system in 198 in which all U.S. cigarette manufactures must supply an ually to the Department of Health and Human Services (DHHS) a mplete list of all of the ingredients added to cigarettes. This annual reporting process was man%ated under the Federal Cigarette Labeling and Advertising ct of 1986.

DISCUSSION DRAFT ingredients Mac/(m)/Advocate Folder -3- Under the federal requirements put in place by Congress -- which argu b1y pre-empts all state and local provisions -- individual b and recipes would be guaranteed confidentiality and the public would be safeguarded from exposure to any potentially har ul added ingredients. DHSS's Office of Safety and Health (OSH) is charged with reviewing the list and reporting to C ngress any concerns it might have with the listed ingredients. In.the ten years that the system has been in place, OSH ha never expressed any concern with any of the ingredients add d t~ cigarettes. Nevertheless, despi e aal of the safeguards put in place by the federal government th State of Massachusetts ignored federal pre-emption and pas ed its new law last year. The law requires tobacco compani oing business in the State to begin disclosing specific flav N ingredients used in_cigarettes o a brand-by-brand basis beginning July 1. The tobacco companies have 'oined together to fight the Massachusetts law. Last February the industry went to court to block the law from taking effec . Despite the fact that a federal district court in Alabama ad ruled two days earlier that a state could not require comp nies to publicly disclose such information, the Massachusetts istrict Court disregarded both precedent and pre-emAtion, and upheld the law. Tobacco companies pledged to contin\je fighting to prevent the release of their trade secret

,DISCUSSION DRAFT Ingredients Mac/(m)/Advocate Folder -4- "Many a enues of challenging this statue remain open," said Remes. We will attempt to appeal the decision immediately, t ke all appropriate steps to prevent it from taking effect a d thereby protect against the unlawful public disclosure of ou trade secrets." # # #