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 packagingâmeaning that they only need to display the statutorily prescribed warnings an equal number of times over the course of a yearâinstead of rotation âwith respect to a brand style of cigarettes.â 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 FTCâs 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 â(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).â See 15 U.S.C. § 1333(c)(2)(A). Additionally, as part of this application, the manufacturer or importer must include âa plan describing how the manufacturer plans to achieve equalization within the twelve-month period.â 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 FTCâs 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 FTCâs 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, â[t]he use of normal clearance procedures is reasonably likely to . . . disrupt the collection of information.â 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 (âFTCâ). 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