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ASH's letter about "bidi" cigarettes -- "training wheels for teen smokers" -- and about the complaint ASH has filed about this problem -- was featured in Friday's USA TODAY newspaper.

Below is a copy of the letter and an earlier press release sent out by ASH, followed by a copy of ASH's bidi complaint.

TITLE: Flavored cigs harmful

As USA TODAY has reported, flavored cigarettes -- "bidis" -- are far more dangerous than ordinary cigarettes and serve as "training wheels" for young would-be smokers ("The rage? Flavored cigs," Cover Story: Bidi cigarettes luring youth, News, Thursday).

Because of that danger, my organization -- Action on Smoking and Health (ASH) -- has filed a legal complaint against them.

John F. Banzhaf III, executive director Action on Smoking and Health Washington, D.C.

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ASH FILES LEGAL PETITION WITH FTC

Requests Regulation of Bidi Cigarettes

Action on Smoking and Health (ASH) has filed a legal petition with the Federal Trade Commission (FTC) requesting the FTC to halt the unfair and deceptive trade practices surrounding bidi cigarettes. Bidi cigarettes are as serious a health risk as regular cigarettes, but many customers, especially teenagers, purchase them in the mistaken belief that they are safer.

People believe that smoking bidis is healthy because -- unlike cigarettes and chewing tobacco -- bidis frequently lack the required health warnings, are considered natural, are sold in health food stores, and contain flavorings such as strawberry, chocolate and cinnamon.

Yet, bidis have been shown to contain even greater amounts of tar and nicotine then regular U.S. cigarettes. They also have been determined to be carcinogenic and a cause of cardiovascular disease.

Bidi sellers, aware of the misconceptions of their customers regarding the health risks of bidis, have made no attempt to correct the deceptive impressions in callous disregard for the bidi smokers health.

ASH's petition requests that the Federal Trade Commission immediately initiate a rulemaking proceeding to insure that health warnings regularly appear on all bidi packages, that an additional health warning be mandated on all bidi labels/packages namely "WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES" and that this and other health warnings begin to appear without any unreasonable delay at points of sale and in any advertisements that might develop for bidi cigarettes.

ASH believes that the same reasoning which led the FTC to propose health warnings for cigarettes following the release of the 1964 Surgeon General's report on smoking cigarettes, and which ultimately led to required health warnings on both cigarettes and chewing tobacco, should apply to bidis. Similarly, the same reasoning which led the FTC to require advertising to correct the implied health claim in the Winston "No Bull" campaign should now be applied to end the unfair and deceptive practice of bidi sales under circumstances that imply health claims.

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Before the FEDERAL TRADE COMMISSION
6th Street & Pennsylvania Ave. NW
Washington, D.C. 20580

In the Matter of the Sale of Bidi Cigarettes Without Adequate Warning of the Deadly Dangers of Using the Products

PETITION FOR RULEMAKING BY ACTION ON SMOKING AND HEALTH (ASH)
TO PREVENT AN UNFAIR AND DECEPTIVE TRADE PRACTICE
BY REQUIRING HEALTH WARNINGS AND CORRECTIVE ADVERTISING

ABSTRACT

For the reasons set forth hereinafter, the sale of a product which is known to be as dangerous to use as regular U.S. cigarettes - bidis (also called beedies) - constitutes an unfair and deceptive trade practice that can only be cured by the Federal Trade Commission (FTC) enforcing the requirement of health warnings on all bidi labels/packages, requiring an additional health warning that bidis are not a safe alternative to regular U.S. cigarettes and requiring corrective advertising at all points of sale and on any future advertisements.

In 1964 the FTC determined that, in light of the Surgeon General's report on smoking, it was an unfair and deceptive practice to market cigarettes without appropriate health warnings. Now, in light of the known health risks of bidis, the rise in their popularity as the cigarette of choice for many teenagers and the implied health claims, it would be even more deceptive to permit bidis to continue to be sold without adequate health warnings on labels/packages and at points of sale for these reasons:

1. Many people have always known -- both prior and subsequent to the release of the 1964 Surgeon General's Report -- that cigarette smoking was hazardous to health. But many people, especially teenagers, still believe that smoking bidis is safe, especially because bidis -- unlike cigarettes and chewing tobacco -- frequently carry no health warnings, are considered natural and are sold in health food stores.

2. Reports indicate that many people, particularly children are choosing bidis in the mistaken belief that this substantially reduces the risk to their health.

3. More and more children, who are less sophisticated and therefore more in need of warnings than adults, are taking up bidis; this includes over half the students at four San Francisco high schools!

4. Some bidi sellers aware of the misconceptions of their customers regarding the health risks of bidis, make no attempt to correct the deceptive impressions in callous disregard for the bidi smokers health.

5. Since nicotine is a powerfully addictive drug, initial decisions to begin using bidis often may not be able to be reversed when knowledge of the dangers is later acquired.

6. Bidis have been shown to contain even greater amounts of tar and nicotine then regular U.S. cigarettes.

7. Bidis have been determined to be carcinogenic and a cause of cardiovascular disease.

PETITION FOR RULEMAKING

Action on Smoking and Health (ASH) hereby petitions the Federal Trade Commission (FTC) to commence rulemaking proceedings under the Federal Trade Commission Act (15 U.S.C. 57a(b)) and 16 CFR 1.7 et seq.) to formulate rules regarding bidis (also known as beedies) -- which are believed to be as lethal for users as regular U.S. cigarettes -- and to require appropriate cigarette-like warning labels about the deadly health hazards of using the products, and to require notices of the health risks in any advertisements and at all points of sale.

RELIEF REQUESTED

ASH submits this petition under 16 CFR 1.9 as an "interested person" who is concerned that bidis are regularly shipped and sold throughout the United States in interstate commerce, and that such acts constitute unfair and deceptive acts and practices in that there is frequently no express or implied warning that the normal, customary, and recommended use of the products causes cancer and heart disease, and, therefore, could cause death or disability to a very substantial percentage of the users, and that they are otherwise as lethal as regular U.S. cigarettes.

It is respectfully submitted that the material contained herein constitutes information which ASH wishes to make available to the Commission to indicate "a widespread pattern of unfair or deceptive acts or practices" within the meaning of 15 USC 57a(b)(3)(A).

For these and other reasons set forth herein, ASH requests the FTC to immediately commence rulemaking proceedings pursuant to 15 U.S.C. 57a(b) to enforce the requirement of health warnings on bidi labels/packages, to require an additional health warning, and to require corrective advertising at all points of sale and in any future ads, and any other appropriate regulations.

INTERESTS OF ACTION ON SMOKING AND HEALTH (ASH)

Petitioner Action on Smoking and Health is a national non-profit scientific and educational organization focusing on the problems of smoking, and protecting the right of non-smokers not to have to breathe in other persons' tobacco smoke. Upon information and belief its members include:

* persons who smoke bidis without being aware of the health risk;

* persons who smoke cigarettes and are likely to be tempted to switch to bidis because of a mistaken belief that they are substantially less hazardous;

* persons whose children or other person with whom they live smokes bidis in part because of ignorance of the dangers of the practice;

* parents or guardians of young children who are tempted to experiment with bidis based in part of the erroneous belief that it is safe, or at least substantially less hazardous than smoking cigarettes.

ASH and its Executive Director, John F. Banzhaf III, have brought and participated in many legal actions related to smoking, including:

* Banzhaf v. FCC, 405 F. 2d 1082 (D.C. Cir. 1968) (upholding FCC ruling that television and radio stations must provide substantial free time for anti-smoking messages);

* Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (3-judge, DC 1971), aff'd 405 U.S. 1000 (1972) (upholding the constitutionality of the statute banning cigarette commercials);

* ASH v. CAB, 699 F.2d 1209 (D.C. Cir. 1983) (requiring former Civil Aeronautics Board to adopt reasonable regulations for non-smoking sections on airplanes, since expanded to a ban on smoking on almost all domestic flights);

* ASH v. Lujan, Civ. Act. 91-0357 JGP (U.S. Dis. Ct. DC) (forcing U.S. Park Service to discontinue permitting cigarette promotions in U.S. park);

* Shimp v. New Jersey Bell Telephone Company, 368 A.2d 408 (1976) (first injunction ever obtained against smoking in a workplace);

* Pletten v Department of the Army, U.S. Merit Systems Protection Board Nos. CH07528010099, CH01520 2901 (1981) (establishing principle that persons sensitive to tobacco smoke are protected as "handicapped persons").

* ASH originally filed a petition with the FDA to regulate cigarettes on May 26, 1977, and appealed the FDA's denial of the petition. Action on Smoking and Health v. Harris, 655 F.2d 236 (D.C. Cir. 1980); thereby producing the legal principle under which the FDA decided to regulate nicotine in cigarettes as a drug. Moreover, in their recent unsuccessful law suit seeking to stop the FDA from asserting jurisdiction over tobacco products containing nicotine [Beahm v. U.S. FDA, 966 F. Supp 1374 (M,D. NC 1997, appeal docketed], the tobacco companies acknowledged the major role ASH's threats to sue the FDA if it did not act to regulate nicotine in cigarettes played regarding this matter [see paragraphs 61-63]. Indeed, as Ronald G. Chesemore, Associate FDA Commissioner for Regulatory Affairs acknowledged in his letter of May 16, 1997, the agency's action in deciding to regulate cigarettes (Docket No 95N-0253; 61 FR 44396) was based in substantial part on ASH's petitions in Docket No. 94P- 0077/CP1 and CP2.

BRIEF STATEMENT OF REASONS WHY HEALTH WARNINGS ARE NEEDED

In 1964 the FTC determined that, in light of the then-just-released Surgeon General's report on smoking, it was an unfair and deceptive practice for tobacco companies to market cigarettes without appropriate health warnings. Approximately five years ago, the Bureau of Alcohol, Tobacco and Firearms classified bidis as cigarettes. Therefore, the same reasoning should apply to bidis manufacturers and sellers, but there is reason to believe that bidis are being sold without the required warning labels, that they are particularly appealing to teenagers, and that they are sold in health food stores which implies, in the absence of corrective advertising, that the product promotes health.

Bidis are unfiltered cigarettes containing tobacco rolled in a temburni leaf wrapper and tied at the ends similar to a marijuana joint. They are a form of cheap, strong smoke which originated in India and is sold with various flavorings such as strawberry, chocolate and cinnamon in the United States. Beedies were reclassified as cigarettes instead of cigars about five years ago and, therefore, could be expected minimally to contain the same health warnings on the labels and packages as regular U.S. cigarettes. In recent months, however, there have been a number of reports that bidis are being sold without the appropriate health warnings, that they are being sold in health food stores, and that they are rising in popularity among teenagers. One San Francisco study, for example, reports that 58% of the students at four high schools had smoked bidis (Associated Press, May 10, 1999). This appears to be happening despite the fact that the sale of cigarettes to minors is illegal in all 50 states under the Food and Drug Administration regulations, 61 Fed. Reg. 44,619.

It is too well known to require citation that failure to warn about a non-obvious and serious danger of using a product constitutes an unfair and deceptive trade practice in violation of the FTC's statute. Indeed, one would have to think long and hard to find a more obvious, serious, and blatant unfair and deceptive trade practice than to sell a product, which is particularly attractive to children, in among other places health food stores without any warning that it will kill and/or disable a very substantial percentage of its purchasers who use it in a normal, customary, and recommended manner.

No one would doubt for a moment that a manufacturer which put on the market without any warning a candy, cereal, gum, mint, toothpaste, etc. which is likely to kill a substantial portion of its users would be guilty of a grossly unfair and deceptive trade practice. The same should also be true for bidis; a position which is strengthened by the following additional factors and arguments:

* 1. Many people have always known -- both prior and subsequent to the release of the 1964 Surgeon General's Report -- that cigarette smoking was hazardous to health. But it is reported that most people, especially children, believe that smoking a bidi is safe, especially because bidis -- unlike cigarettes and chewing tobacco -- taste like candy and frequently carry no health warnings. Thus, many persons are likely to assume from the strong health warnings found on all cigarettes and chewing tobacco, and the frequent absence of similar warnings on bidis, that bidis (unlike cigarettes and chewing tobacco) are not dangerous.

This is a perfectly logical assumption for which there is clear historical precedent. Many people -- adults as well as children -- for many years assumed that using chewing tobacco was safer than smoking cigarettes because the latter contained a health warning and the former did not. That was one of the principal reasons why warnings on chewing tobacco similar to those on cigarettes were eventually required. It is also the reason why the following was one of the three mandated health warnings: WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES.

If bottles of aspirin pills contained a warning that use of the product by children could contribute to Reye Syndrome and other pills containing substantial amounts of aspirin did not, many people would logically but incorrectly assume that the latter were safe to give to children. Similarly, if some brands of gasoline contained warnings about the dangers of inhaling the vapors and others did not, people would logically but incorrectly assume that it was safe to breathe the fumes of the latter. Exactly the same reasoning should apply to bidis, since many people apparently believe that smoking bidis is safer than regular cigarette smoking in part because of the absence of similar health warnings regarding the former product.

* 2. Bidis are rising in popularity, particularly among minors, at least in part because of the incorrect but apparently wide-spread belief that bidi smoking is less dangerous than regular cigarette smoking. "I already know that smoking cigarettes is bad for you....Beedies have a better taste than cigarettes, and I don't think they're as bad for you ", commented one teenager (Chicago Tribune, November 25, 1998).

Thus, people who do wish to reduce their risk of the many deadly diseases caused by cigarette smoking are being lulled into a false sense of confidence and are switching to bidis rather than quitting smoking. It is an unfair practice for bidi sellers to be able to capitalize on this desire for a healthier lifestyle by saying nothing in the face of this widespread and widely-known phenomena. In fact, Shawn Ulizio, company director of Kretek International of California, one of the largest manufacturer and distributor of bidis was recently quoted as speculating that "many of his customers are looking for a 'healthier' smoke and are puffing beedies under the false impression that they are some how less harmful than American brands". (Chicago Tribune, November 25, 1998). While he further acknowledges that "there's no such thing as a healthy cigarette", he continues to sell bidis knowing his customers are under the false impression that beedies are healthy for them. Thus the public health and public interest would be served by a requirement, in addition to the regular cigarette warnings, that labels on bidis state -- as currently required on labels for chewing tobacco -- WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES.

* 3. More and more children, who are less sophisticated and therefore more in need of regulations than adults, are taking up bidis. "They're dessert with a cigarette" said one teenager (Associated Press, May 10, 1999) reflecting the appeal of bidis to minors because of their sweet flavorings such as chocolate, strawberry, almond and rootbeer. Bidis also are attracting minors because they cost less than regular cigarettes, with an average of $2 for a pack of 20. Teens also believe bidis are a current trend and consider them cute, exotic, tastier, less bitter and more natural then regular cigarettes. (AP, May 10, 1999)

The FTC has long recognized and acknowledged -- as has the American public -- that children are more naive (if not gullible) and susceptible to misunderstandings regarding products than adults, and are therefore entitled under law to a greater degree of protection in the form of warnings, notices, and other requirements. The need for appropriate health warnings is even stronger than it is for adults.

* 4. It appears that some bidis are being sold in health food stores, thereby creating the misleading impression that they are safe or even healthful. This implied health claim makes the necessity for requiring health warnings, including at the point of sale, even stronger.

While failure to disclose a material risk of using a product is by itself an unfair and deceptive trade practice, affirmative misrepresentations by placement in health food stores are even more so. Since it would seem unfair for the FTC to require warnings at point of sale for health food stores and not gas stations, convenience stores, grocery and other stores also selling bidis, the only appropriate remedy is to require clear and conspicuous health warnings at all points of sale so as not to mislead the consumer, especially the minors, into believing that bidis are a health product.

Such corrective advertising is necessary and appropriate under the rationale the FTC used in the R.J. Reynolds Tobacco Company "No Bull" Winston cigarette case, file number 992-3025. That case also involved implied health claims that the particular cigarettes were less hazardous to the smokers health and the FTC required the manufacturer to include "clear and prominent disclosure" that the cigarettes were not safer than regular cigarettes.

* 5. Since nicotine is a powerfully addictive drug, initial decisions to begin using bidis often may not be able to be reversed when knowledge of the dangers is later acquired. Thus, the need for clear, strong, and effective health warnings is even greater than with regard to a product which has no addictive components.

If it is learned that a toothpaste, chewing gum, candy, mint, face cream, or similar product presents serious health hazards, most people who are current users may logically be expected to cease using that product since it is an easy step to take. Similarly, if a tool, kitchen appliance, or other article of commerce presents dangers, users who subsequently become concerned about the danger can simply stop using it.

However, if a product contains an addictive drug, persons who once have begun using it may not be able to stop, or may be able to stop only with very great difficulty. That teenagers who are smoking bidis mistakenly believe that it will be easy to stop is evidenced by the comments of one teenager who, after stating that he didn't think bidis were as bad as cigarettes, said that "[e]ven if they are, I'm definitely going to stop when I get older". (Chicago Tribune, November 25, 1998) Thus the need for a strong regulations with regard to such a product is far greater than the need for a strong warning regarding a product where the user can easily quit using it.

The FDA, the U.S. Public Health Service, and the Surgeon General have all declared nicotine to be an addictive drug. For many it appears that nicotine can be as addictive as heroin. In any event, it is well known that many people find it nearly impossible -- or at least very difficult -- to give up smoking because of the addictive [dependence-creating] nature of nicotine.

Bidis contain more tar and nicotine than is generally found in a regular pack of cigarettes. According to Samira Asma, an epidemiologist at the Centers for Disease Control and Prevention, "an unfiltered bidi 'releases at least two to three times more tar and nicotine'" than a regular U.S. cigarette. (AP, May 10, 1999) Additionally, Suresh Ralapati, an ATF biochemist in Washington, has stated that bidis contain "up to four times more nicotine than American made cigarettes". (Chicago Tribune, November 25, 1998) See also, "Taking Root in the Third World", Environmental Health Journal, Vol. 52:2 March/April 1997. A copy is attached and incorporated herein.

* 6. Bidis are as serious a health hazard as regular U.S. cigarettes. They have been shown to be a major risk factor for both cancer and heart disease.

Research has shown that bidis are human carcinogens ("Carcinogenic potential of some Indian tobacco products", Bhide, Control of Tobacco -related Cancers and Other Diseases, International Symposium, 1990, Oxford University Press, 1992). A copy is attached and incorporated herein. They contain cancer causing tobacco-specific nitrosamines, that have been shown to induce tumors in the nasal cavity, esophagus, lung and liver in animal studies and that are "likely to act as human carcinogens". ("Carcinogenic Tobacco-Specific Nitrosamines In Indian Tobacco Products", J. Nair et al, Chem. Toxic, Vol. 27. No. 11. pp.751-753,1989). A copy is attached and incorporated herein.

Compared to regular U.S. cigarettes, the mainstream smoke from bidis also contains much higher concentrations of toxic chemicals such as hydrogen cyanide, carbon monoxide, ammonia, volatile phenols and various carcinogenic hydrocarbons. ("Tobacco habits in India", Bhonsle et al, Control of Tobacco-related Cancers and Other Diseases, International Symposium, 1990). See also, " Taking Root", supra. A copy is attached and incorporated herein.

Bidis have also been shown to be a significant cause of cardiovascular disease. "Bidi smokers suffer four times the risk of developing myocardial infarction and three times the risk of developing coronary heart disease when compared to nonsmokers." "Taking Root in the Third World", Environmental Health Journal, Vol. 52:2 March/April 1997. A copy is attached and incorporated herein.

Thus there are a number of adverse health effects of not fully informing prospective purchasers of the dangers of bidi smoking. It is logical to assume that if some bidi smokers were effectively warned about the dangers of bidi use, they would quit or at least significantly moderate their use. Similarly, it is logical to assume that if some potential bidi smokers were effectively warned about the dangers of bidi use, they would not start, and that such actions would eliminate what would otherwise be a significant health risk.

* 7. Thus the purpose of this document is to formally suggest to the FTC an action it should logically consider initiating on its own initiative, and to provide some immediate arguments and information to facilitate this task. ASH respectfully suggests that the Federal Trade Commission immediately initiate a rulemaking proceeding to insure that health warnings regularly appear on all bidi packages, that an additional health warning be mandated on all bidis labels/packages namely "WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES" and that this and other health warnings begin to appear without any unreasonable delay at points of sale and in any advertisements that might develop. SUMMARY AND CONCLUSIONS

Action on Smoking and Health (ASH) respectfully suggests that the Federal Trade Commission immediately begin a rulemaking proceeding to develop regulations requiring appropriate cigarette-like health warnings on all bidi packaging and labeling, as well as at all points of sale and in any advertisements for bidis.

ASH respectfully suggests that the same reasoning which led the FTC to propose health warnings for cigarettes following the release of the 1964 Surgeon General's report on smoking cigarettes, and which ultimately led to required health warnings on both cigarettes and chewing tobacco, should apply in the instant situation. Similarly, the same reasoning which led the FTC to require advertising to correct the implied health claim in the Winston "No Bull" campaign should now be applied to end the unfair and deceptive practice of bidi sales under the implied health claims. Indeed, ASH suggests that the additional factors and arguments listed below make the need for bidi health warnings even more compelling:

1. Many people have always known -- both prior and subsequent to the release of the 1964 Surgeon General's Report -- that cigarette smoking was hazardous to health. But many people, especially teenagers, still believe that smoking bidis is safe, especially because bidis -- unlike cigarettes and chewing tobacco -- frequently carry no health warnings, are considered natural and are sold in health food stores.

2. Reports indicate that many people, particularly children are choosing bidis in the mistaken belief that this substantially reduces the risk to their health.

3. More and more children, who are less sophisticated and therefore more in need of warnings than adults, are taking up bidis; this includes over half the students at four San Francisco high schools!

4. Some bidi sellers aware of the misconceptions of their customers regarding the health risks of bidis, make no attempt to correct the deceptive impressions, in callous disregard for the bidi smokers health.

5. Since nicotine is a powerfully addictive drug, initial decisions to begin using bidis often may not be able to be reversed when knowledge of the dangers is later acquired.

6. Bidis have been shown to contain even greater amounts of tar and nicotine then regular U.S. cigarettes.

7. Bidis have been determined to be carcinogenic and a cause of cardiovascular disease.

Respectfully submitted,

Kathleen E. Scheg Legislative Counsel
Action on Smoking and Health (ASH)
2013 H Street, N.W. Washington, D.C. 20006
(202) 659-4310

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