material.” She specifically enjoined use of the words “low tar,” “light,” “ultra-light,” “mild,” “natural,” and “any other words which reasonably could be expected to result in a consumer believing that smoking the cigarette brand using that descriptor may result in a lower risk of disease or be less hazardous to health than smoking other brands of cigarettes.” Judge Kessler’s order is very important, but it has two limitations: it does not apply to all manufacturers and it will require continuing interpretation regarding its application to words and images other than the ones specifically banned in the order.
The committee believes that Congress should supplement Judge Kessler’s order with a statutory restriction banning the use of these specific terms and should empower the regulatory agency to ban any other descriptors, signals, or practices that the companies may subsequently use that have the purpose or effect of leading consumers to believe believing that smoking the cigarette brand with that descriptor may result in a lower risk of disease or may be less hazardous to their health than smoking other brands of cigarettes.
Recommendation 28: Congress should ban, or empower the FDA to ban, terms such as “mild,” “lights,” “ultra-lights,” and other misleading terms mistakenly interpreted by consumers to imply reduced risk, as well as other techniques, such as color codes, that have the purpose or effect of conveying false or misleading impressions about the relative harmfulness of the product.
Judge Kessler’s remedial order in the RICO suit also requires the defendant manufacturers to make various “corrective communications” on their websites, at the point of sale and on package inserts (Tobacco Free Kids 2006). These messages would address the adverse health effects of smoking, the addictiveness of smoking and nicotine, the effects of so-called low-tar cigarettes, the adverse effects of exposure to secondhand smoke, and the impact of marketing on youth smoking. Some of these proposed messages would be substantially equivalent to the health warnings contained in the proposed Tobacco Control legislation, although they would sometimes be more lengthy than package warnings. Some of the messages embody admissions of past deception by the manufacturers.
Recommendation 29: Whenever a court or administrative agency has found that a tobacco company has made false or misleading communications regarding the effects of tobacco products, or has engaged in conduct promoting tobacco use among youth or discouraging cessation