Dutch court in position to end Low Tar Lie

John Maa and Jeffrey Wigand

A long-awaited advance in global tobacco control to address the “Low Tar Lie” is currently playing out in the Netherlands. After a five-year legal process, the Dutch Trade and Industry Appeals Tribunal heard final arguments in June 2023 in a lawsuit brought by the Dutch Youth Smoking Prevention Foundation.  This case may mandate more accurate methods to analyze the levels of tar, nicotine, and carbon monoxide (TNCO) from cigarettes across the European Union (EU), and force tobacco companies to redesign cigarette filters or modify cigarette composition to reduce the levels of toxic chemicals to which those who smoke are exposed.

This story began in 1936, when researchers from the American Tobacco Company developed a method to analyze filtered cigarettes for tar, nicotine and carbon monoxide (CO). This testing protocol was adopted by the United States Federal Trade Commission (FTC) in 1967. A series of cigarettes are held by a machine, then simultaneously ignited and puffed by syringes (a 35-cc volume over 2 seconds every minute), until a prescribed short cigarette butt length is reached, and the particulate components of TNCO are collected.

The FTC method has since been adopted around the globe, and is known in Europe as the International Organization for Standardization (ISO) method.  But this “mechanized smoking” is unlike human smoking and therefore underestimates the level of toxic chemicals to which a smoker is exposed.  Extensive research shows that when smoking, consumers inhale deeper than a 35-cc volume and puff more frequently than once a minute.  A more serious concern exists about how the tobacco industry has cheated the test.  Small ventilation holes in cigarette filters are created by lasers away from where the smoking machine holds the cigarette, and allow external air to dilute the smoke stream from the burning cigarette. This results in artificially lower TNCO measurements that comply with the maximum allowable emissions of 10 mg tar, 1 mg nicotine, and 10 mg CO. Smokers largely close these holes with their fingers or lips when smoking, and inhale far more than the allowable limit of harmful substances.

For decades, there have been calls for the FTC method to be replaced with a method that corrects for puff volume and blocks the ventilation holes to accurately determine TNCO levels.  The tobacco industry has long been aware of the problem. A Philip Morris internal company document stated “people smoke in such a way that they get much more than predicted by machine,” but the industry exploited this inaccurate data in the marketing of “light” and “low tar” cigarettes to mislead smokers into believing these were safer.  Philip Morris created a test for its own internal research called the human smoking simulator, which in 1977 recorded tar levels more than three times higher than the FTC method. But tobacco industry lawyers concluded they did not have any obligation to inform the FTC of the higher numbers, and so the truth of the health dangers was kept from the public for decades.

Dutch legal action

In 2016, Dr. Jeffrey Wigand demonstrated to Amsterdam public health leaders how TNCO measurements are manipulated by ventilation holes.  Armed with this  knowledge, leaders initiated a civil case in 2018 in Rotterdam to require the Netherlands Food and Consumer Product Safety Authority (NVWA) to uphold legal maximum emissions levels with a new measurement method.  This case was aided by data from the Netherlands National Institute for Public Health (RIVM) prepared at the request of the Dutch State Secretary of Health.  RIVM scientists tested 100 different cigarettes by the World Health Organization (WHO) Intense method which comes closer to actual human smoking behavior, and uses tapes to close the ventilation holes in cigarette filters.  RIVM found that almost all cigarettes exceeded legal emission limits two to three-fold.

In February of 2022, an EU Court of Justice ruled that a more accurate method should be adopted, which paved the way for the Rotterdam Court in November 2022 to rule in favor of the Youth Smoking Prevention Foundation and order the NWVA to adopt a new measurement method.  Although the Dutch government and NVWA agreed with the need to change testing methods, they appealed the decision believing they need a stronger legal basis to test solely with the WHO Intense method. The four largest tobacco companies then joined in appealing the Rotterdam decision.

A final decision of the Dutch Tribunal is due by November 2023. The matter may be referred back to the EU court, which could mandate that the WHO Intense method be adopted across Europe.  The Dutch Tribunal could also require that cigarettes sold in the Netherlands comply with maximum emission levels measured by the WHO Intense method.  The tobacco industry may be forced to: 1) remove the filter on cigarettes, 2) end the practice of placing ventilation holes in the filters, 3) reduce the levels of TNCO in cigarettes, or a combination of these.

An important step forward was the July 2023 publication by RIVM conducted at the request of NVWA, which revealed that all cigarettes on the Dutch market exceed maximum allowable emissions.  TNCO levels were more than 15 times higher when the WHO Intense method was used instead of the ISO.

Other European nations should join the 13 countries that have already called on the European Union to adopt the WHO Intense Method.  In the US, tobacco control leaders should call on Congress, the FDA and FTC to adopt the WHO Intense method.  The Biden Administration should join the World Health Organization’s Framework Convention on Tobacco Control and bring an end to the use of the flawed FTC method around the world.  Ultimately, the Dutch court decision is the key to mandating a more reliable method to test cigarettes, and thereby improve the health of smokers globally.

John Maa M.D. is a general surgeon in San Francisco and former president of the San Francisco-Marin Medical Society.

Jeffrey Wigand, Ph.D. is a medical biochemist and former vice president of research and development and environmental affairs at Brown & Williamson Tobacco Corporation based in Louisville, Ky., who worked on the development of reduced-harm cigarettes and in 1996 blew the whistle on tobacco tampering at the company.

Competing interests: The authors have no competing interests to disclose. Dr. Maa serves on the California Tobacco Education Research Oversight Committee, and on the Board of Directors of the American Heart Association Western States Affiliate


(Visited 774 times, 1 visits today)