United States of America 

FEDERAL TRADE COMMISSION 

Washington, DC 20580
 

Division of Advertising Practices

Bureau of Consumer Protection

May 9, 2017 

Mark S. Brown, Esq. 

King & Spalding LLP 

1700 Pennsylvania Ave., NW 

Suite 200
 

Washington, DC 20006-47078 

Re:	 Request for Informal Staff Guidance Regarding Santa Fe Natural Tobacco 

Company’s Consent Order (FTC Dkt. No. C-3952) 

Dear Mr. Brown: 

The Division of Advertising Practices has reviewed your letter submitted on behalf of 

RAI Services Company (“RAI”) and Santa Fe Natural Tobacco Company (“Santa Fe”), dated 

March 9, 2017, requesting informal staff guidance concerning the Federal Trade Commission’s 

consent order with Santa Fe (“Consent Order”).1 The consent order requires, among other 

things, a disclosure that “No additives in our tobacco does NOT mean a safer cigarette” in any 

cigarette advertisement that, through the use of phrases such as “no additives,” “no chemicals,” 

“additive free,” “chemical-free,” “chemical-additive free,” “100% tobacco,” “pure tobacco,” or 

substantially similar terms, represents that a tobacco product has no additives or chemicals 

(“cigarette disclosure”).2 

This request for guidance was precipitated by a Memorandum of Understanding that 

RAI/Santa Fe entered into with the U.S. Food and Drug Administration’s (“FDA”) Center for 

Tobacco Products in January 2017. Under the Memorandum of Understanding, RAI/Santa Fe, 

agreed, among other things, to remove the phrase “Additive Free” and the term “natural” from 

1

 Your letter attaches the Santa Fe agreement, which was accepted for public comment on 

April 27, 2000. On June 16, 2000, the Commission made final that agreement and issued its 

Decision and Order (FTC Dkt. No. C-3952). See https://www.ftc.gov/enforcement/casesproceedings/992-3026/santa-fe-natural-tobacco-company-inc. 

2

 The Consent Order also requires a triggered disclosure in connection with advertising and 

packaging for herbal smoking products, and other remedies. This letter addresses only the 

requirements for the cigarette disclosure and does not provide guidance on other provisions of 

the Consent Order. 
                                                            

 

Mark S. Brown, Esq. 

Page 2 

May 9, 2017 

all Natural American Spirit cigarette product labels, labeling, advertising, and promotional 

materials, except that Santa Fe may retain the use of the term “Natural” in the “Natural American 

Spirit” brand name and trademarks. 3 The Memorandum of Understanding permits Santa Fe to 

use the phrases “Tobacco Ingredients: Tobacco & Water” or “Tobacco Filler Ingredients: 

Tobacco & Water” if it chooses to do so. 

RAI and Santa Fe request staff guidance on two issues. First, they seek staff guidance as 

to whether use of the phrases “Tobacco Ingredients: Tobacco & Water” or “Tobacco Filler 

Ingredients: Tobacco & Water” triggers the cigarette disclosure required in the FTC’s Consent 

Order. As stated above, the Consent Order’s cigarette disclosure is triggered whenever a covered 

Santa Fe advertisement uses the specific terms identified in the order or any substantially similar 

term that represents, directly or by implication, that a tobacco product has no additives or 

chemicals. It is well-established that whether a claim is reasonably conveyed in an 

advertisement requires an examination of the entire advertisement and an assessment of the 

overall net impression(s) conveyed. POM Wonderful, LLC v. FTC, 777 F.3d 478, 490 (D.C. Cir. 

2015. Accord ECM Biofilms, Inc. v. FTC, No. 15-4339, U.S. App. LEXIS 4609, at **14-15 (6th 

Cir. Mar. 16, 2017). Thus, determining whether use of the two referenced phrases would 

constitute “substantially similar terms” that trigger the cigarette disclosure in the Consent Order 

would require an evaluation of specific advertisements in their entirety, and not simply an 

evaluation of specific words or phrases. For that reason, we cannot definitively opine whether 

use of the phrases “Tobacco Ingredients: Tobacco & Water” or “Tobacco Filler Ingredients: 

Tobacco & Water” would trigger the cigarette disclosure required in the FTC’s Consent Order. 4 

Looking solely at the phrases, however, raises concerns that, depending on the context, 

consumers could reasonably interpret advertisements containing the phrases at issue to mean that 

Santa Fe Natural American Spirit cigarettes contain no additives or chemicals. In particular, the 

phrases are very similar to “100% tobacco” and “pure tobacco” – each of which specifically 

triggers the cigarette disclosure. In addition, advertisements permitted under the Memorandum 

of Understanding would continue to use the term “Natural” as part of the “Natural American 

Spirit” brand name, potentially adding to an impression that the advertised cigarette contains no 

additives or chemicals. 

3

 A copy of the Memorandum of Agreement is attached to your March 9, 2017 letter. In 2009, 

Congress enacted the Family Smoking Prevention and Tobacco Control Act (“Tobacco Control 

Act”), which gives FDA broad authority over cigarettes and other tobacco products. It is under 

that authority that RAI/Santa Fe entered into the Memorandum of Agreement with FDA. We did 

not analyze and provide no guidance concerning RAI/Santa Fe’s compliance with the Tobacco 

Control Act or any provision therein. 

4

 In accordance with Section 1.1 of the Commission’s Rules of Practice and Procedure, 16 

C.F.R. § 1.1, we do not ordinarily provide advice if an informed opinion cannot be made or 

could be made only after extensive investigation, clinical study, testing or collateral inquiry. 
Mark S. Brown, Esq. 

Page 3 

May 9, 2017 

The second issue that RAJ/Santa Fe seek staff guidance on is whether they can replace 

the Consent Order's required disclosure with the following disclosure: "Natural American Spirit 

cigarettes are not safer than other cigarettes." The Memorandum of Understanding states that 

FDA does not object to this disclosure. Although this disclosure differs from that set out in the 

Consent Order, both disclosures convey the core message that Santa Fe cigarettes are not safer 

than other cigarettes. Thus, FTC staff would not recommend an enforcement action with respect 

to the mandated language ofthe cigarette disclosure if RAI/Santa Fe used the requested 

disclosure rather than the specific language set out in the Consent Order as long as the disclosure 

was displayed clearly and prominently as set forth in the Consent Order. 

The views expressed in this letter are those of FTC staff. They have not been reviewed, 

approved, or adopted by the Commission or any individual Commissioner. They are not binding 

upon the Commission, and the views are given without prejudice to the right ofthe Commission 

to later rescind the guidance and, when appropriate, to commence an enforcement proceeding. 

In addition, the views expressed in this letter are restricted to the facts described above. FTC 

staff retains the right to reconsider its advice and, with notice to the requesting parties, rescind or 

revoke its guidance ifit would be in the public interest to do so. 

Pursuant to Section 1.4 ofthe Commission's Rules ofPractice and Procedure, 16 C.F.R. 

§ 1.4, this response, along with your request for staff guidance, will be placed on the public 

record. 

Very truly yours, 

/Mt,{L ~' T MaryK.a 

Associate Director for Advertising Practices 

cc: 	 Ann Simoneau, J.D. 

Director, Office ofCompliance and Enforcement 

Center for Tobacco Products 

U.S. Food and Drug Administration 
KING & SPALDING King & Spalding LLP 

1700 Pennsylvania Ave, NW 

Suite 200 

Washington, D.C. 20006-4707 

Tel: + I 202 737 0500 

Fax: + I 202 626 3737 

www.kslaw.com 

Mark S. Brown 

Partner 

Direct Dial : + I 202 626 5443 

Direct Fax: + I 202 626 3737 

mbrown@kslaw.com 

March 9, 2017 

Via Electronic Mail 

Rosemary Rosso 

Division of Advertising Practices 

Federal Trade Commission 

Constitution Center 

5th Floor, Suite 5610 (Annex J) 

400 ?1h Street, SW 

Washington, DC 20024 

Re: 	 Request for Informal Staff Guidance Regarding 2017 Agreement Between 

Santa Fe Natural Tobacco Company and U.S. Food & Drug Administration 

Dear Ms. Rosso: 

As you know from our letter dated January 31, 201 7, and from our recent discussions, we 

represent RAI Services Company and Santa Fe Natural Tobacco Company (hereinafter "Santa 

Fe") in connection with an agreement between Santa Fe and the U.S. Food & Drug 

Administration ("FDA") concerning the removal ofthe phrase "Additive Free" from all Natural 

American Spirit cigarette product labels, labeling, advertising, and promotional materials. Santa 

Fe expressly reserved the right, in the agreement with FDA, to include the statement "Tobacco 

Ingredients: Tobacco & Water" or "Tobacco Filler Ingredients: Tobacco & Water." 

Under the terms ofSanta Fe's April 27, 2000 Consent Order with the FTC (File No. 992­

3026; Attachment A), Santa Fe agreed to include the disclosure "No additives in our tobacco 

does NOT mean a safer cigarette" (for cigarettes) or ''No additives in our tobacco does not mean 

safer" (for tobacco products other than cigarettes) on any advertisement that "through the use of 

such phrases as "no additives," "no chemicals," "additive-free," "chemical-free," "chemicaladditive-free," "100% tobacco," "pure tobacco," or substantially similar terms, represents that a 

tobacco product has no additives or chemicals." (Emphasis supplied). 

In the time since Santa Fe entered into the April 2000 Consent Order with the FTC, 

Congress enacted the Family Smoking Prevention and Tobacco Control Act ("Tobacco Control 

Act"). The Tobacco Control Act gives FDA broad authority over tobacco products, but provides 
Rosemary Rosso 

March 9, 2017 

Page 2 

for concurrent, overlapping jurisdiction between FDA and the FTC with regard to regulation of 

advertising practices. See 21 U.S.C. § 387n. 

Under the Tobacco Control Act, manufacturers must obtain clearance from FDA to 

market tobacco products as "modified risk tobacco products." The term "modified risk tobacco 

product" is defined as any tobacco product that is "sold or distributed for use to reduce harm or 

the risk oftobacco-related disease associated with commercially marketed tobacco products." 2 1 

U.S.C. § 387k(b)(l). Whether a product is "sold or distributed for use to reduce harm or the risk 

oftobacco-related disease" is determined, in part, based on the product's label, labeling, and 

advertising. It is under this authority that Santa Fe entered into the January 2017 agreement with 

FDA. 

To assure that Santa Fe continues to meet its obligations under the 2000 Consent Order, it 

now seeks an informal, written opinion from the FTC's Division ofAdvertising Practices on the 

following two questions: 

(1) Are the phrases "Tobacco Ingredients: Tobacco & Water" or "Tobacco Filler 

Ingredients: Tobacco & Water" "substantially similar terms" under the 2000 Consent 

Order such that their use triggers the disclosure requirement ofthe 2000 Consent Order!? 

(2) If"Tobacco Ingredients: Tobacco & Water" or "Tobacco Filler Ingredients: Tobacco 

& Water" are deemed substantially similar terms, would the FTC either permit or not 

otherwise object to Santa Fe replacing the disclosures required under the 2000 Santa Fe 

Consent Order with the following disclosure: "Natural American Spirit cigarettes are not 

safer than other cigarettes." 

We thank you for your attention to this matter, and look forward to a productive dialogue. 

If you require any additional information, please contact me at (202) 626-5443 or 

mbrown@kslaw.com. 

Sincerely, 

Attachments: 

A: April 27, 2000 FTC Consent Decree 

B: January 23, 2017 FDA Memorandum ofAgreement 

cc: 	 Ann Simoneau (w/attachments) 

Ele Ibarra-Pratt (w/attachments) 

Mitch Neuhausuer (w/attachments) 
Je1viccs 

(OJ11/Jt111Y 

Mil< hC' ll /\. Nc·uln111sc·1 

Vice f'1 c~id nt and

l\ssistanl <:ic11e1 al Counsel · H<:gulatrn y 

'101 N. Main Sl1 <'<'I

l'.O. !lox '1Ci'1 

Winston ~al<'111, NC 1./107 

k lr.pho1w: :l3G i'll.l-'1~00 

r.1x: :13c, OH !I'll! / 

1wuf1i1Ull1(<clrj1 l.rc1111 

CONFIDENTIAL, NOT l•'OH PUBLIC DISCLOSURE 

Vin UPS O\•ernight 

January 23, 2017 

Ann Simoneau, J.D. 

Office of CompIiance and Enforcement 

FDA Center for Tobacco Products 

c/o Document Control Center 

Building 71, Room 0335 

I 0903 New Hampshire A venue 

Silver Spring, Maryland 20993 -0002 

Dear Ms. Simoneau: 

Enclosed please find an executed original Memorandum ofAgreement. 1 have also 

e-mailed a copy to Eli Ibarra-Pratt as you have requested. 

Respectfu ll y sub~_/ / / 

/k--b. ? /;;:/ 

·/~ 

Mitchell A. Neuhauser 

cc: Eli Ibarra-Pratt 
Confldentlal - Not for Public Disclosure 

Memorandum of Agreement Between 


The United States Food and Drug Administration's (FDA) Center for Tobacco Products (CTP) and RAI 


Services Company (RAIS)/Santa Fe Natural Tobacco Company, Inc. (Santa Fe), 


(Dated: January 19, 2017) 


The parties, the FDA's Center for Tobacco Products (CTP) end RAI Services Company (RAIS)/Santa Fe 

Natural Tobacco Company, Inc. (Santa Fe), have been engaged In discussions to resolve the Issues raised 

in CTP's Warning Letter dated August 27, 2015. Per those discussions, CTP and Santa Fe agree to the 

following steps and conditions: 

1. 	 Senta Fe will remove the phrase "Additive Free• from all Natural American Spirit cigarette product 

labels, labeling, advertising, and promotional materials. 

2. 	 Santa Fe will remove the term •natural" from all Natural American Spirit cigarette product labels, 

labeling, advertising, and promotional materials, except as provided In Paragraph Three (3) below. 

Santa Fe may, if It chooses to do so, use the statement "Tobacco Ingredients: Tobacco & water" or 

"Tobacco Fiiier Ingredients: Tobacco & Water" on product labels, labeling, advertising, and 

promotional materials. The use of the phrases "Tobacco Ingredients: Tobacco and Water" and 

"Tobacco Flffer Ingredients: Tobacco and Water" Is not required under this Agreement, but Santa Fe 

wishes to retain the option of using these statements. 

If Santa Fe chooses to use the statement "Tobacco Ingredients: Tobacco & Water" or "Tobacco Filler 

Ingredients: Tobacco & Water" on product labels, labeling, advertising, and promotional materials, 

Santa Fe agrees to Initiate discussions with the FTC and FDA within 30 days ofsigning this 

Agreement In order to address, and reach a mutually agreeable resolution regarding, whether, under 

the Consent Decree entered in 2000 between FTC and Santa Fe regarding Santa Fe's advertising of 

Natural American Spirit cigarettes, FTC would require a disclosure with use of the statements 

"Tobacco Ingredients: Tobacco & Water" or "Tobacco Filler Ingredients: Tobacco & Water: CTP's 

position is that no disclosure would be needed for either of the tobacco Ingredients statements In the 

preceding paragraph .. However, CTP would not object to Santa Fe's use of the disclosure "Natural 

American Spirit cigarettes are not safer than other cigarettes" on product packaging, labels, labeling, 

advertising and promotional materials. Santa Fe agrees to work dlllgently with FTC and FDA to reach 

resolution on this issue. 

CTP recognizes that Santa Fe will need to coordinate with Its vendors to print and Implement new 

product labeling and advertising. However, CTP expects that this process would be completed and 

that changes to the labels, labeling, advertising, and promotional materials would be implemented 

within seven (7) months from the date Santa Fe receives In writing the agreement reached between 

FTC and FDA regarding the necessity, and, if applicable, wording, of a disclosure, and the process 

for effectuating It, as a result of the discussions among Santa Fe, FTC, and FDA. Followlng the 

seven (7) month de~dline, Santa Fe will not utilize the terms "additive free" or •natural" except as 

allowed under Paragraph 3 of this Agreement on the labels, labeling, advertising, or promotional 

materials for Natural American Spirit cigarette products. Santa Fe need not, however, remove or 

recall products or product labels, labeling, advertising, or promotional materials utilizing the terms 

"additive free" or ·natural" that were Introduced Into the market (e.g., through distribution to 

wholesalers, dlstrlbuters. retallers, or consumers) prior to the seven (7) month deadline. 

3. 	 Santa Fe may retain use ofthe term "Natural" In the "Natural American Splrlr brand name and 


trademarks. 


4. 	 To the extent any premarket authorization requirements ofsection 905(j) and 910 of the FD&C Act 

apply, CTP wlll not enforce them with respect to the changes specified in Paragraphs 1 and 2 above. 

5. 	 If Santa Fe seeks labeling review from FTC for the changes described In the Agreement. Santa Fe 

will submit a letter to CTP's Office of Compliance and Enforcement to inform CTP of such review 

once the FTC has completed its review. In addition, Santa Fe will prompUy notify CTP's Office of 

Compliance and Enforcement in writing and provide exemplars of Its revised packaging, labels, 
Confidential -· Not for Public Disclosure 

labeling, advertising, and promotional materials that reflect the removal of "addltivo free" and 

"natural" claims, and related changes, in accordance with this Agreement. Thereafter, any 

subsequent changes to packaging, labels, labeling, advertising, and promotional materials shall be 

communicated In conformance with Section 905(i) of the FD&C Act. 

6. 	 Within thirty (30) days after CTP receives exemplars of Santa Fe's revised packaging, labeling, 

advertising, and promotional materials pursuant to Paragraph 5, CTP shall determine whether the 

exemplars are in compliance with the applicable requirements of the FD&C Act and notify Santa Fe 

in writing of its determination. 

7. 	 By accepting the terms of this Agreement, Santa Fe does not admit any liability or wrongdoing. 

If Santa Fe agrees to the conditions outlined above, CTP will commit to not initiating enforcement action 

against Santa Fe related to the August 27, 2015 Warning Letter during the seven (7) month timeframe set 

forth in Paragraph 2 for Santa Fe to complete and implement changes to the product packaging, labels, 

labeling, advertising and promotional materials. The parties may agree to extend these dates by written 

agreement. CTP's Office of Compliance and Enforcement requests periodic updates as to Santa Fe's 

progress towards meeting the terms of this Agreement. 

This Agreement applies only to the specific products and claims described in this letter. It is Santa Fe's 

responsibility to ensure that Its other tobacco products and all related labeling and/or advertising comply with 

each applicable provision of the FD&C Act and FDA's Implementing regulations. 

-?' /~ &y- / //;£~ft;~ // , . MITCHELL A NEUHAUSER ....,7£,__o_~-·T--.. ·E..-, ­

Vice President 

Assistant General Counsel-Regulatory 

RAI Services Company 

ANN SIMONE 

Director 

Office of Compliance and Enforcement 

Center for Tobacco Products 

Food and Drug Administration 
UNITED STATES OF AMERICA 


FEDERAL TRADE COMMISSION 


In the Matter of 

SANTA FE NATURAL TOBACCO COMPANY, INC., a corporation.) 

FILE NO. 992-3026 


AGREEMENT CONTAINING CONSENT ORDER 


The Federal Trade Commission has conducted an investigation of certain acts and 

practices of Santa Fe Natural Tobacco Company, Inc., a corporation ("proposed 

respondent"). Proposed respondent is willing to enter into an agreement containing a 

consent order resolving the allegations contained in the attached draft complaint. 

Therefore, 

IT IS HEREBY AGREED by and between Santa Fe Natural Tobacco Company, Inc., 

by its duly authorized officer, and counsel for the Federal Trade Commission that: 

I. Proposed respondent Santa Fe Natural Tobacco Company, Inc. is a New Mexico 


corporation with its principal office or place of business at 1368 Cerrillos Road, Santa 


Fe, NM 87505-3507. 


2. Proposed respondent admits all the jurisdictional facts set forth in the draft complaint. 

This agreement is for settlement purposes only and does not constitute an admission by 

proposed respondent that the law has been violated as alleged in the draft complaint, or 

that the facts as a lleged in the draft complaint, other than the jurisdictional facts, are true. 

3. Proposed respondent waives: 

a. Any fu rther procedural steps; 

b. The requirement that the Commission's decision contain a statement offindings 

offact and conclusions ofJaw; and 

c. All rights to seek judicia l review or otherwise to challenge or contest the validity 

ofthe order entered pursuant to this agreement. 

4. This agreement shall not become part of the public record of the proceeding unless and 

until it is accepted by the Commission. If this agreement is accepted by the Commission, 

it, together with the draft complaint, will be placed on the public record for a period of 

thirty (30) days and information about it publicly released. The Commission thereafter 

may either withdraw its acceptance of this agreement and so notify proposed respondent, 

in which event it will take such action as it may consider appropriate, or issue and serve 

its complaint (in such form as the circumstances may require) and decision in disposition 

of the proceeding. 

5. This agreement contemplates that, if it is accepted by the Commission, and if such 

acceptance is not subsequently withdrawn by the Commission pursuant to the provisions 

of Section 2.34 of the Commission's Rules, the Commission may, without further notice 

to proposed respondent, (I) issue its complaint corresponding in form and substance with 

the attached draft complaint and its decision containing the following order in disposition 

of the proceeding, and (2) make information about it public. When so entered, the order 

shall have the same force and effect and may be a ltered, modified, or set aside in the 

same manner and within the same time provided by statute for other orders. The order 

shall become final upon service. Delivery of the complaint and decision and order to 
proposed respondent's address as stated in the agreement by any means specified in 

Section 4.4 of the Commission's Rules shall constitute service. Proposed respondent 

waives any right it may have to any other manner ofservice. The compla int may be used 

in construing the terms ofthe order. No agreement, understanding, representation, or 

interpretation not contained in the order or in the agreement may be used to vary or 

contradict the terms of the order. 

6. Proposed respondent has read the draft complaint and consent order. It understands 


that it may be liable for civil penalties in the amount provided by law and other 


appropriate relief for each violation of the order after it becomes fina l. 


ORDER 

DEFINITIONS 

For purposes of this order, the following definitions shall apply: 

I. "Competent and reliable scientific evidence" shall mean tests, analyses, research, 

studies, or other evidence based on the expertise ofprofessionals in the relevant area, that 

has been conducted and evaluated in an objective manner by persons qualified to do so, 

using procedures generally accepted in the profession to yield accurate and reliable 

results. 

2. Unless otherwise specified, "respondent" sha ll mean Santa Fe Natural Tobacco 

Company, Inc., a corporation, its successors and assigns and its officers, agents, 

representa ti ves, and employees. 

3. "Commerce" shall mean as defined in Section 4 ofthe Federal Trade Commission Act, 

15 u.s.c. § 44. 

4. "Advertisement" shall mean any written or verbal statement, illustration, or depiction 

that is designed to effect a sale or create interest in the purchasing of any product, 

including but not limited to a statement, illustration or depiction in or on a brochure, 

newspaper, magazine, free standing insert, pamphlet, leaflet, circular, mailer, book insert, 

letter, coupon, catalog, poster, chart, billboard, transit advertisement, point ofpurchase 

display, specialty or util itarian item, sponsorship material, package insert, film, slide, or 

the Internet or other computer network or systt:m. 

5. "Tobacco product" shall mean cigarettes, cigars, cigarillos, little cigars, smokeless 

tobacco, cigarette tobacco, pipe tobacco, and any other product made or derived from 

tobacco that is intended for human consumption, including any component, part, or 

accessory of a tobacco product. 

6. "Herbal smoking product" shall mean c igarettes, cigars, cigarillos, little cigars and any 

other product made or derived from plant material other than tobacco, that is intended for 

human smoking, inc luding any component, part, or accessory of an herbal smoking 

product. 

7. "Clearly and prominently" shall mean: 

a. With regard to advertisements for tobacco and herbal smoking products, in black 

type on a solid white background, or in white type on a solid red background, or in 

any other color combination that would provide an equivalent or greater degree of 

print contrast as objectively dete rmined by densitometer or comparable 
measurements of the type and the background color. The color of the ruled 

rectangle shall be the same color as that of the type; and 

b. (i) With regard to advertisements for tobacco products, centered, both horizontally 

and vertically, in a ruled rectangle. The area enclosed by the rectangle shall be no 

less than 40% of the size of the area enclosed by the ruled rectangle surrounding 

the health warnings for tobacco cigarettes mandated by 15 U.S.C. § 1333. The 

width of the rule fonning the rectangle shall be no less than 50% ofthe width of 

the rule required for the health warnings for tobacco cigarettes mandated by 15 

u.s.c. § 1333. 

Provided that, if, at any time after this order becomes final, 15 U .S.C. § 1333 is 

amended, modified, or superseded by any other law, the area enclosed by the ruled 

rectangle shall be no less than 40% of the area required for health warnings for 

tobacco cigarettes by such amended, modified, or superseding law, and the width 

of the rule forming the rectangle shall be no less than 50% of the width ofany 

surrounding rule required for health warnings for tobacco cigarettes by such 

amended, modified, or superseding law; and 

(ii) With regard to advertisements for herbal smoking products, centered, both 

horizontally and vertically, in a ruled rectangle. The area enc losed by the rectangle 

shall be no less than the size of the area enclosed by the ruled rectangle 

surrounding the health warnings for tobacco cigarettes mandated by 15 U.S.C. § 

1333. The width of the rule forming the rectangle shall be no less than the width of 

the rule required for the health warnings for tobacco cigarettes mandated by 15 

u.s.c. § 1333. 

Provided that, if, at any time after this order becomes final, 15 U.S.C. § 1333 is 

amended, modified, or superseded by any other law, the area enclosed by the ruled 

rectangle shall be no less than the area required for health warnings for tobacco 

cigarettes by such amended, modified, or superseding law, and the width of the 

rule forming the rectangle shall be no less than the width of any surrounding rule 

required for health warnings for tobacco cigarettes by such amended, modified, or 

superseding law; and 

c. 	Jn the same type style and type size as that required for health warnings for 

tobacco cigarettes pursuant to 15 U.S.C. § 1333. 

Provided that, if, at any time after this order becomes final, 15 U.S.C. § 1333 is 

amended, modified, or superseded by any other law, the type style and type size of 

the disclosure shall be the same as the type style and type size required for health 

warnings for tobacco cigarettes by such amended, modified, or superseding law; 

and 

d. In a clear and prominent location but not immediately next to other written or 

textual matter or any rectangular designs, elements, or similar geometric fonns, 

including but not limited to any warning statement required under the Federal 

Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq., or the 

Comprehensive Smokeless Tobacco Health Education Act, 15 U .S.C. § 440 I et 

seq. In addition, the disclosure shall not be positioned in the margin of a print 

advertisement. A disclosure shall be deemed "not immediately next to" other 

geometric or textual matter if the distance between the disclosure and the other 

matter is as great as the distance between the outside left edge of the rule ofthe 

rectangle enclosing the health warning required by 15 U. S. C. § 1333 and the top 

left point of the letter "S" in the word "SURGEON" in that health warning; and 
c. 	For audiov isual or audio advertisements, includ ing but not limited to 

advertisements on videotapes, cassettes, discs, or the Internet; promotional films or 

filmstrips; and promotional audiotapes or other types of sound recordings, the 

disclosure shall appear on the screen at the end of the advertisement in the format 

described above for a length of time and in such a manner that it is easily legible 

and shall be announced simultaneously at the end of the advertisement in a manner 

that is c learly audible. 

Provided, however. that in any advertisement that does not contain a visual 

component, the disclosure need not appear in visual format, and in any 

adve1tisement that does not contain an audio component, the disclosure need not 

be announced in aud io format. 

I. 

IT IS ORDERED that respondent, directly or through any corporation, subsidiary, 

division, or other device, in connection with the advertising, promotion, offering for sale, 

sale, or distribution of Natural American Spirit tobacco cigarettes or any other tobacco 

product in or affecting commerce, shall display in advertisements as specified below, 

clearly and prominently, the following disclosures (including the line breaks, 

punctuation, bold font and capitalization illustrated): 

In cigarette advertisements: 

No additives in our tobacco 


does NOT mean a safer cigarette. 


In advertisements for any other tobacco product: 

No additives in our tobacco 

does NOT mean safer. 

These disclosures shall be displayed beginning no later than thirty (30) days after the 

date of service ofth is order, in any advertisement that, through the use ofsuch phrases as 

"no additives;" "no chemicals," "additive-free," "chemical-free," "chemical-additivefree," "100% tobacco," "pure tobacco," or substantially similar terms, represents that a 

tobacco product has no additives or chemicals. 

Provided, that the above disclosures shall not be required in any cigarette advertisement 

that is not required to bear a health warning pursuant to 15 U.S.C. § 1333. 

Provided further, that the above disclosures shall not be required if respondent possesses 

and relies upon competent and reliable scientific evidence demonstrating that such 

cigarette or other tobacco product poses materially lower health risks than other 

cigarettes or other products of the same type. 

Nothing contrary to, inconsistent with, or in mitigation of any disclosure provided for in 

this part shall be used in any advertisement. Provided, however. that this provision shall 

not prohibit respondent from truthfully representing, through the use ofsuch phrases as 

"no additives," "no chemicals." "additive-free," "chemical-free," "chemical-additivefree," " I 00% tobacco," "pure tobacco," or substantially similar terms, that a tobacco 

product has no additives or chemicals, where such representation is accompanied by the 

disclosure mandated by this provision. 

11. 
IT IS FURTHER ORDERED that respondent, directly or through any corporation, 

subsidiary, division, or other device, in connection with the advertising, promotion, 

offering for sa le, sale, or distribution of any herbal smoking product in or affecting 

commerce, shall display in advertisements and on packaging as specified below, clearly 

and prominently, the following disclosure (including the line breaks, punctuation and 

capitalization illustrated): 

In advertisements and on packaging for herbal cigarettes: 

Herbal cigarettes are dangerous to your health. 


They produce tar and carbon monoxide. 


In advertisements and on packaging for other herbal smoking products: 

Smoking this product is dangerous to your health. 


It produces tar and carbon monoxide. 


These disclosures shall be displayed beginning no later than thirty (30) days after the 


date of service ofthis order, in any advertisement and on any package that, through the 


use of such phrases as "no tobacco," "tobacco-free," "herbal," or substantially similar 


terms, represents that an herbal smoking product has no tobacco. 


Prov;ded, that the above disclosures shall not be required if respondent possesses and 


relies upon competent and reliable scientific evidence demonstrating that such herbal 


smoking products do not pose any material health risks. 


Nothing contrary to, inconsistent with, or in mitigation of any disclosure provided for in 

this part shall be used in any advertisement. Provided, however, that this provision shall 

not prohibit respondent from truthfully representing, through the use of such phrases as 

"no tobacco," "tobacco-free," "herbal," or substantially similar terms, that an herbal 

smoking product has no tobacco, where such representation is accompanied by the 

disclosure mandated by this provision. 

I I I. 

IT IS FURTHER ORDERED that respondent shall: 

A. Provide, within forty-five (45) days after the date of service ofthis order, an exact 

copy of the notice attached hereto as Attachment A to each retailer, distributor, or other 

purchaser for resale to whom respondent has supplied Natural American Spirit tobacco 

cigarettes since January I, 1998. Respondent shall send the notice by first class mail. The 

mailing shall not include any other documents. 

B. Discontinue dealing with any retailer, distributor, or other purchaser for resale once 

respondent has actual knowledge, or knowledge fairly implied on the basis of objective 

circumstances, that such retailer, distributor, or other purchaser for resale has continued 

to use or disseminate any of respondent's advertisements for any of respondent's tobacco 

products that: 

I. represents, through the use ofsuch phrases as "no additives," "no chemicals," 

"additive-free," "chemical-free," "chemical-additive-free," "I 00% tobacco," "pure 

tobacco," or substantially similar terms, that the tobacco products have no 

additives or chemicals; and 
2. does not include the disclosure specified in Part I of this order 

unless, upon notification by respondent, such retailer, distributor, or other purchaser for 

resale immediately ceases using or disseminating such advertisements. If, after such 

notification, respondent obtains actual knowledge, or knowledge fairly implied on the 

basis of objective circumstances, that such retailer, distributor, or other purchaser for 

resale has not permanently ceased using or disseminating such advertisements, 

respondent must immediately and indefinitely, discontinue dealing with such retailer, 

distributor, or other purchaser for resale, until such time as respondent has obtained 

written assurance and verified that such retailer, distributor, or other purchaser for resale 

has permanently ceased using or disseminating such advertisements. 

C. For five (5) years after the date ofservice of this order, maintain and upon request 


make available to the Federal Trade Commission for inspection and copying: 


(I) copies of all notification letters sent to retailers, distributors, or other 

purchasers for resale pursuant to subparagraph A of this part; and 

(2) copies ofall communications with retailers, distributors, or other purchasers for 

resale pursuant to subparagraph B of this part. 

JV. 

IT IS FURTHER ORDERED that respondent Santa Fe Natural Tobacco Company, Inc., 

and its successors and assigns, shall, for five (5) years after the last date of dissemination 

of any representation covered by this order, maintain and upon request make available to 

the Federal Trade Commission for inspection and copying: 

A. All advertisements and packaging containing the representation; 

B. All materials that were relied upon in disseminating the representation; and 

C. All tests, reports, studies, surveys, demonstrations, or other evidence in their 

possession or control that contradict, qualify, or call into question the 

representation, or the basis relied upon for the representation, including complaints 

and other communications with consumers or with governmental or consumer 

protection organizations. 

v. 

IT IS FURTHER ORDERED that respondent Santa Fe Natural Tobacco Company, Inc., 

and its successors and assigns, sha ll deliver a copy of this order, in either paper or 

electronic form, to all current and future principals, officers, and directors, and to all 

current and future managers, employees, agents, and representatives having 

responsibilities with respect to the subject matter of this order. Respondent shall secure 

from each such person either I) a signed and dated statement acknowledging receipt of 

the order; or 2) a dated, e lectronic acknowledgment indicating that the person has read, 

downloaded or printed the order. Respondent shall deliver this order to current personnel 

within thirty (30) days after the date of service of this order, and to future personnel 

within thirty (30) days after the person assumes such position or responsibilities. 

Respondent shall maintain and upon request make available to the Federal Trade 

Commission fo r inspection and copying a copy of each signed statement acknowledging 

receipt of the order or a record, in either electronic or paper form, ofeach electronic 

acknowledgment of receipt of the order. 
VI. 


IT IS FURTHER ORDERED that respondent Santa Fe Natural Tobacco Company, Inc., 

and its successors and assigns shall notify the Commission at least thirty (30) days prior 

to the sale of any of its tobacco products or herbal smoking products for which the 

composition or formula has been changed in such a manner as may affect compliance 

obligations arising under this order, including but not limited to the addition of any 

additives to any variety ofsuch products. All notices required by this Part shall be sent 

by certified mail to the Associate Director, Division of Enforcement, Bureau of 

Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., 

Washington, D.C. 20580. 

VII. 

IT IS FURTHER ORDERED that respondent Santa Fe Natural Tobacco Company, Inc., 

and its successors and assigns shall notify the Commission at least thirty (30) days prior 

to any change in the corporation that may affect compliance obligations arising under 

this order, including but not limited to a dissolution of a subsidiary, parent or affiliate that 

engages in any acts or practices subject to this order; the proposed filing of a bankruptcy 

petition; or a change in the corporate name or address. Provided, however, that, with 

respect to any proposed change in the corporation about which respondent learns less 

than thirty (30) days prior to the date such action is to take place, respondent shall notify 

the Commission as soon as is practicable after obtaining such knowledge. All notices 

required by this Part shall be sent by certified mail to the Associate Director, Division of 

Enforcement, Bureau ofConsumer Protection, Federal Trade Commission, 600 

Pennsylvania Avenue, N.W., Washington, D.C. 20580. 

VIII. 

IT IS FURTHER ORDERED that respondent Santa Fe Natural Tobacco Company, Inc., 

and its successors and assigns shall, within sixty (60) days after the date of service of this 

order, and at such other times as the Federal Trade Commission may require, file with the 

Commission a report, in writing, setting forth in detail the manner and form in which 

they have complied with this order. 

IX. 

This order will terminate twenty (20) years from the date of its issuance, or twenty (20) 

years from the most recent date that the United States or the Federal Trade Commission 

files a complaint (with or without an accompanying consent decree) in federal court 

alleging any violation of the order, whichever comes later; provided, however, that the 

filing of such a complaint will not effect the duration of: 

A. Any Part in this order that terminates in less than twenty (20) years; 

B. This order's application to any respondent that is not named as a defendant in 

such complaint; and 

C. This order if such complaint is tiled after the order has terminated pursuant to 

this Part. 

Provided further, that if such complaint is dismissed or a federal court rules that the 

respondent did not violate any provision of the order, and the dismissal or ruling is either 

not appealed or upheld on appeal, then the order will terminate according to this Part as 

though the complaint had never been filed, except that the order will not terminate 
between the date such complaint is filed and the later of the deadline for appealing such 

dismissal or ruling and the date such dismissal or ruling is upheld on appeal. 

Signed this ____day of_______, 2000 

SANTA FE NATURAL TOBACCO COMPANY, INC. 

By: ------ ---­ Robin Sommers 


President 


C. Randall Nuckolls 


Long Aldridge & Norman, LLP 


Attorney for Respondent 


Michael Ostheimer 


Shira Model! 


Counsel for the Federal Trade Commission 


APPROVED: 

C. Lee Peeler 


Associate Director 


Division of Advertising Practices 


Joan Z. Bernstein 


Director 


Bureau of Consumer Protection 


ATTACHMENT A 

[To be printed on Santa Fe Natural Tobacco Company, Inc. letterhead] 

[date] 

Dear [retailer, distributor, or other purchaser for resale]: 

This letter is to inform you that Santa Fe Natural Tobacco Company, Inc. recently 

reached a settlement agreement with the Federal Trade Commission ("FTC") concerning 

certain past advertising for Natural American Spirit cigarettes. The FTC has been 

reviewing "no additive" claims for cigarettes and other tobacco products as a result of 

concerns that such representations might mislead consumers to believe that tobacco 

products without additives are safer than tobacco products containing additives. As part 

of this review, the FTC conducted an investigation of past advertising for Natural 

American Spirit cigarettes and alleged that certain ofour past advertising was 

misleading. Although we do not admit the FTC's allegations, we have agreed to notify 

our distributors, retailers and others who sell our cigarettes to consumers that we will be 

adding a new disclosure statement to certain advertisements making a "no additive" 

claim and that they should discontinue the use ofcertain old advertising materials not 

contain ing the new disclosure language. 

The FTC Agreement 
The FTC claimed that because we state that the tobacco used in Natural American Spirit 

cigarettes contains no additives or chemicals, we made implied, unsubstantiated claims 

that smoking our cigarettes is less hazardous to a smoker's health than smoking otherwise 

comparable cigarettes that contain additives or chemicals. Beginning in late 1997, we 

voluntarily began placing the statement ''To our knowledge there is no research 

indicating cigarettes containing additive-free tobacco are safer than cigarettes with 

tobacco containing additives" in certain ads for Natural American Spirit tobacco 

cigarettes. Since early I 998, we have also included the statement "We make no 

representation expressed or implied that these cigarettes are any less hazardous than any 

other cigarettes" on the packaging ofNatural American Spirit cigarettes. We have now 

agreed to revise our disclosure in certain advertisements for Natural American Spirit 

tobacco cigarettes to stale the following: 

No additives in our tobacco 


does NOT mean a safer cigarette. 


Our Notifi cation Obligations 


In addition to agreeing to revise our disclosure statement, we have also agreed to request 


that you discontinue using, relying on or distributing certain old Natural American Spirit 


advertisements or promotional materials in your possession that do not contain the new 


disclosure statement. Certain existing point of sale items may continue to be used 


without the new disclosure statement while other items will need to be discontinued or 


removed unless a sticker is applied containing the new disc losure statement. In the near 


future, we will provide instructions for dealing with these existing items and we will be 


sending you new Natural American Spirit promotional materials. If you are a distributor, 


we also ask that you make this information available to your Natural American Spirit 


dealers who may have existing material s so that they can take similar action. The FTC 


agreement requires us to cease doing business with even our most loyal customers in the 


event they continue using noncompliant materials, so please help us make this transition 


in an orderly and prompt fashion. 


If you have any questions, you may call us at (xxx) xxx-xxxx. We apologize for any 


inconvenience this may cause you and thank you for your assistance. 


Sincerely, 


Robin Sommers, President 


Santa Fe Natural Tobacco Company, Inc.