194 



U S V An .Ajticle.. Consisting ot 216 individually Cartoned Bottles. More 

 Or Less of an Anicie Labeled in pan Sudden Change . 409 F 2d "54 i2d 

 Cir 1969) 



National Nutritional Foods Association v. Mathews . 557 F 2d 325. 333 2d 

 Cir (1977) 



The Supreme Coun has also explicitly determined that commercial speech is 

 inherently calculated, intended speech, because commercial speakers have 

 extensive knowledge of both the market and their products. " See Central 

 Hudson Gas & Electric Corporation v. Public Service Commission of New York . 

 447 U.S. 557, 564 n.6, 100 S.Ct. 2343, 65 L.Ed.Zd 341 (1980). The tobacco 

 companies fully understand the health ramifications and the addictive nature of 

 nicotine in tobacco, and carefully research, develop, and market their products to 

 encourage consumers to use so-called safer products as well as to ensure their 

 continued addiction. Since the commercial speech of the tobacco industry is 

 calculated to foster the public's use of this product, which they often perceive as 

 safer and less addictive , the tobacco companies should be held accountable for 

 development and marketing of their products with such intent. In addition, a 

 1993 survey conducted by the Gallup Organization showed that over 75 percent of 

 those surveyed (smokers and nonsmokers) believe terms like "low tar, " "low 

 nicotine, " and "'low yield"* mean the product is safer, less cancerous and less 

 addictive. 



In Sudden Change the court said that the question of whether a product is 

 intended to affect function or structure of the body is to be answered by 

 considering first how the claim might be understood by the "ignorant, unthinking, 

 or credulous consumer and second, whether the claim as so understood may fairly 

 be said to constitute a represenution that the product will affea structure of the 

 body. . . " (p.734). Citing Hohensee . the court in -Sudden Change explains the ways 

 in which "intent" is to be ascertained suting that: "It is well established that the 



