DISSENTING FTC MEMBERS: NO EVIDENCE AGAINST OLD JOE AZCUENAGA AND STAREK EXPLAIN THEIR POSITIONS

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[washington] Although it reversed its 1994 decision in opting last week to prosecute R.J. Reynolds Tobacco Co. over its Joe Camel advertising, the Federal Trade Commission remains divided over whether the complaint should have been filed.

FTC commissioners Mary L. Azcuenaga and Roscoe B. Starek III said last week they are still unconvinced the information marshalled by the FTC staff demonstrates the ads caused youngsters to smoke or to smoke more.

Ms. Azcuenaga is an independent first appointed to FTC by President Reagan in 1984. Mr. Star-ek is a Republican named to FTC by President Bush in 1990. Their dissenting statements follow:

Mr. Starek: I am very concerned about the harm that cigarette smoking poses to children, but I also take seriously the statutory limits on the commission's authority to pursue enforcement actions against allegedly unfair practices. The evidence before us now, including the evidence obtained since the commission considered this matter in 1994, does not convince me that there is reason to believe that the law has been violated. The issue in this case is whether the Joe Camel advertising campaign causes or is likely to cause children to begin or to continue smoking. As was true three years ago, intuition and concern for children's health are not the equivalent of-and should not be substituted for-evidence sufficient to find reason to believe that there is a likely causal connection between the Joe Camel advertising campaign and smoking by children.

NOT IN THE PUBLIC INTEREST

Moreover, it simply is not in the public interest to bring this case now. Before committing a vast amount of scarce agency resources to this litigation, the commission should await the resolution of the appeal of the federal district court decision striking down the Food & Drug Administration's tobacco advertising restrictions and the outcome of widely reported settlement discussions between tobacco companies and numerous states. Either of these developments might result in advertising restraints that would largely duplicate any remedies the commission might obtain.

Ms. Azcuenaga: Today, the commission issues a complaint against R.J. Reynolds Tobacco Co. alleging that Reynolds' Joe Camel advertising campaign constitutes an unfair act of practice in violation of Section 5 of the Federal Trade Commission Act. The actions alleged in the complaint are serious, and intuition suggests reason to believe they are true.

Intuition alone, however, is not sufficient basis for issuing a complaint under the statute. The commission is an agency of limited jurisdiction and is authorized to bring a case only if certain elements of the law are satisfied.

Not having found reason to believe that the evidence supports each of these elements, I must dissent. (Unlike my colleague, Commissioner Starek, I would find that the case is in the public interest, but I concur in the first paragraph of his dissenting statement.)

LITTLE DIFFERENCE FROM '93-94

The issues underlying the complaint issued today differ little from those considered by the commission in its 1993-94 inquiry into the same advertising campaign. That inquiry was closed by a majority vote of the commission without law enforcement action. I have decided to take the unusual step of writing to explain my position on the current decision despite the adjudicative status of the case. I emphasize that although as a matter of law I am unable to vote to issue a complaint, I would be free at a later stage in the proceeding to find a violation of law if the record in the upcoming adjudication so demonstrates.

When the commission voted in 1994 to close its investigation of Joe Camel, the commission majority issued a joint statement. The commission said then, and it is equally true now: "Although it may seem intuitive to some that the Joe Camel advertising campaign would lead more children to smoke or lead children to smoke more, the evidence to support that intuition is not there. Our responsibility as commissioners is not to make decisions based on intuition but to evaluate the evidence and determine whether there is reason to believe that a proposed respondent violated the law."

The statement continued: "If intuition and concern for children's health were a sufficient basis under the law for bringing a case, we have no doubt that a unanimous commission would have taken that action long ago. The dispositive issue here, however, was whether the record showed a link between the Joe Camel advertising campaign and increased smoking among children, not whether smoking has an effect on children or whether the health of children is important."

UTMOST ATTENTION REQUIRED

Like my colleagues, I always am willing to revisit past decisions in light of new evidence, particularly if that evidence might provide a basis for commission action to protect the health of children. In my view, the serious health issues concerning smoking by children mandate our utmost attention to any new information that might support a case against advertising that can be shown to cause or increase smoking among children.

I have carefully considered the totality of the available evidence, including new material that has been presented to the commission, and have concluded that the new information does not strengthen the case the commission rejected in 1994. As in 1994, the available evidence does not support the specific legal

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