The Federal Cigarette Labeling and
Advertising Act, 15 U.S.C. § 1333 et. seq., sets forth certain
warnings that are required to appear on cigarette packaging and
advertising. The Act requires cigarette manufacturers and importers
to rotate these warnings on a quarterly basis. See id. However,
under certain circumstances, manufacturers and importers with sales
below a specified threshold can apply for equalization with respect
to the rotation of the warnings on their packaging—meaning that
they only need to display the statutorily prescribed warnings an
equal number of times over the course of a year—instead of rotation
“with respect to a brand style of cigarettes.” See 15 U.S.C. §
1333(c)(1) and (c)(2). Regardless of whether a manufacturer or
importer chooses to apply for equalization, it must submit a plan,
which is subject to the FTC’s approval and must establish how the
manufacturer or importer plans to comply with the statutory
labeling and advertising (if it intends to engage in advertising)
requirements. See 15 U.S.C. § 1333(a). The applicant must also keep
records demonstrating its compliance with the plan approved by the
FTC. Manufacturers and importers may apply for equalization if “(i)
the number of cigarettes of such brand style sold in the fiscal
year of the manufacturer or importer preceding the submission of
the application is less than one-fourth of 1 percent of all the
cigarettes sold in the United States in such year, and (ii) more
than one-half of the cigarettes manufactured or imported by such
manufacturer or importer for sale in the United States are packaged
into brand styles which meet the requirements of clause (i).” See
15 U.S.C. § 1333(c)(2)(A). Additionally, as part of this
application, the manufacturer or importer must include “a plan
describing how the manufacturer plans to achieve equalization
within the twelve-month period.” See 15 U.S.C. § 1333(c)(2)(B). If
the FTC approves the application for equalization, that approval is
valid for one year from the date of the approval. See 15 U.S.C. §
1333(c)(2)(C). A manufacturer or importer that has received
approval for quarterly rotation of the warnings on its packages
does not need further approval from the Commission unless it
intends to add new brands or brand styles to its
previously-approved plan. Similarly, approval for an advertising
plan does not expire, although the manufacturer or importer will
need additional approval for new brands, types of advertising, or
sizes of advertising formats.
The Federal Cigarette
Labeling and Advertising Act, 15 U.S.C. § 1333 et. seq., sets forth
certain warnings that are required to appear on cigarette packaging
and advertising. The FTC recently became aware that the FTC never
obtained OMB clearance for this statutorily prescribed information
collection. However, we believe that, in this instance, the FTC’s
failure to obtain PRA clearance is of no consequence. First, since
there is a statutory provision that requires the collection of the
information, a failure to obtain PRA clearance does not preclude
the assessment of a penalty under the statute. See 5 C.F.R. §
1320.6(e). Second, for the same reason, the failure to obtain a PRA
clearance does not excuse noncompliance with the requirement. See
e.g., U.S. v. Ionia Management S.A., 498 F. Supp. 2d 477, 489 (D.
Conn. 2007). Special circumstances exist that require an emergency
clearance pursuant to 5 C.F.R. § 1320.13(a). First, without the
information, the FTC is unable to determine whether cigarette
manufacturers and importers are complying with the statutory
requirements for cigarette packaging. For this reason, any
interruption in the FTC’s ability to carry out its statutory
mandate will likely result in public harm. See 5 C.F.R. §
1320.13(a)(2)(i). Second, because the FTC is already collecting the
information in accordance with its statutory mandate, “[t]he use of
normal clearance procedures is reasonably likely to . . . disrupt
the collection of information.” See 5 C.F.R. § 1320.13(a)(2)(iii).
Finally, the collection of information is needed prior to the
expiration of established time periods and is essential to the
mission of the agency. See 5 C.F.R. § 1320.13(a)(1).
US Code:
15
USC 1333 Name of Law: Federal Cigarette Labeling and
Advertising Act
US Code: 15 USC 1333 Name of Law: Federal
Cigarette Labeling and Advertising Act
The Federal Cigarette Labeling
and Advertising Act, 15 U.S.C. § 1333 et. seq., requires importers
and manufacturers wishing to sell or advertise cigarettes within
the United States to make certain submissions to the Federal Trade
Commission (“FTC”). The FTC is seeking OMB clearance for this
statutorily mandated information collection requirement.
On behalf of this Federal agency, I certify that
the collection of information encompassed by this request complies
with 5 CFR 1320.9 and the related provisions of 5 CFR
1320.8(b)(3).
The following is a summary of the topics, regarding
the proposed collection of information, that the certification
covers:
(i) Why the information is being collected;
(ii) Use of information;
(iii) Burden estimate;
(iv) Nature of response (voluntary, required for a
benefit, or mandatory);
(v) Nature and extent of confidentiality; and
(vi) Need to display currently valid OMB control
number;
If you are unable to certify compliance with any of
these provisions, identify the item by leaving the box unchecked
and explain the reason in the Supporting Statement.
Cigarette Exception Letter_July 27 2023_Final.pdf
Burden for Importers and Manufacturers of Cigarettes