by Allan Brandt
According to Rogers and Todd, the crucial factor shaping industry policy in the United States was the fear of litigation. Political and regulatory strategy was principally set by legal counsel, who scrupulously guarded tobacco companies from liability risk. In this respect, the regulatory environment in the United States differed from that facing the industry in Britain, where litigation against the companies was not considered a serious risk. By 1964, over thirty lawsuits accusing the industry of negligence and other malfeasance had been filed in American courts. Though most had been dismissed or dropped, the risks associated with liability litigation were considered potentially disastrous. “In consequence of the importance of the lawsuits, the main power in the smoking and health situation undoubtedly rests with the lawyers,” Rogers and Todd wrote.43
The leadership in the U.S. smoking and health situation therefore lies with the powerful Policy Committee of senior lawyers advising the industry, and their policy, very understandably, in effect is “don’t take any chances.” It is a situation that does not encourage constructive or bold approaches to smoking and health problems, and it also means that the Policy Committee of lawyers exercises close control over all aspects of the problems.44
Following the surgeon general’s report, even as some industry executives (including some lawyers) offered proposals for modifying the decade-old “not proven” claim, the Policy Committee strongly resisted any deviation from this traditional position, which it deemed crucial to the effective defense against liability actions. The committee feared that any discussion of modifying the product or openly researching its biologically active properties—as was being done in the United Kingdom—could be viewed in the courts as an “implied admission” that the manufacturer knew the product was harmful.45 Any move away from an “agnostic” public posture could lead to high-risk litigation. Even as the industry’s insistence on a “continuing controversy” became increasingly untenable from a scientific and public relations perspective, the companies remained wedded to it for legal reasons. This dilemma would shape tobacco politics right into the twenty-first century.
The Policy Committee began as a group of industry lawyers who met to plot the industry’s response to the expected regulatory effort. In late 1963, as the Surgeon General’s Advisory Committee was finishing its report, the committee met almost daily, mapping strategies to deflect any potential regulatory initiatives, especially those that required warning labels on packages and advertisements. Evaluating every possible contingency, they drafted testimony, offered questions and statements to sympathetic legislators, and prepared witnesses for legislative hearings.46 Chaired by R.J. Reynolds’s Henry Ramm, the group included attorneys Addison Yeaman from Brown & Williamson, Fred Haas from Liggett & Myers, and Cy Hetsko from American Tobacco, as well as representatives from Lorillard and Philip Morris. “This Committee is extremely powerful; it determines the high policy of the industry on all smoking or health matters—research and public relations matters, for example, as well as legal matters—and it reports directly to the presidents,” explained the two industry representatives from Great Britain.47
The industry understood that the situation demanded unity. Even as companies competed sharply for market share and pushed the boundaries of health claims, they were committed to presenting a seamless front on science, policy, and law. In a February 1964 meeting, the executives agreed to appoint a single spokesman to respond to the FTC regulators. “Counsel were in agreement that if representatives of individual companies were to make a presentation to the FTC, they might be faced with embarrassing questions as to particular advertising and that conflicting statements as to the proposed Trade Regulation Rules might be voiced.” As a result they agreed to rely on attorney Thomas Austern of Covington & Burling to speak for them all. He “would be best able to ‘field’ these questions, to plead ignorance to ads, etc.”48
The industry lawyers understood, even before the release of the Terry report, that the writing was on the wall, if not yet on the package. It was inevitable that some form of warning labels would soon be required. With the FTC rules pending and laws regulating the promotion of cigarettes being proposed in up to twenty state legislatures, the tobacco industry brilliantly reversed field. The most effective strategy for derailing proposed FTC regulations, they now determined, would be to seek congressional oversight. If the industry could not avoid government action, it could ensure that the action was taken in their preferred venue: the U.S. Congress. “An Act of Congress is essential to the industry” concluded the British observers in their confidential memo.49 Not only did the industry have “friends” in Congress, especially—but not exclusively—from tobacco growing states, industry lawyers and lobbyists recognized that Congress would be eager to protect its own authority against an activist regulatory agency. Therefore “[t]he Policy Committee was directed to propose a form of bill for Congressional action which would preempt the field.”50 The industry would achieve this preemption by acceding to a package label while precluding any warning in advertisements. The “concession” on a package label, the lawyers reasoned, might offer leverage in avoiding other pernicious intrusions into tobacco marketing and promotion.
Preemption had multiple meanings. The term had its origin in the Constitution, where federal statutes were deemed to preempt those of states and localities. Among the reasons the industry called for congressional legislation was the potential nightmare of diverse rules and controls among the fifty states. In a traditional application of Article VI of the U.S. Constitution, the industry sought legislation that would explicitly preempt any state and local regulations about labeling and advertising in favor of a congressionally mandated—and heavily lobbied—federal act.
Beyond this technical constitutional sense, the bill drafted by the industry also sought to preempt the regulatory authority of the FTC as well as any possible initiatives on the part of the other regulatory agencies, such as the Federal Communications Commission (FCC). The legislation was aggressively regulatory in this one respect: it clipped the wings of the FTC, which was legally banned from taking regulatory actions against tobacco for four years. In this sense, it marked an unprecedented attack on the federal regulatory structure of consumer protection.51
At the same time, the bill was also designed to preempt what had become the industry’s single greatest concern: namely, tort litigation. Among the many advantages of legislation requiring a label was that it allowed the industry to insist—in court if necessary—that claims against the companies for negligence and deception were now moot. Every smoker would be repeatedly warned that “smoking may be hazardous to your health.” The legislation would substantially assist in the industry’s principal legal argument that smokers knowingly assumed whatever risks might be associated with the product.52 Even those who sought to gain a regulatory foothold on the industry slipped into the language of assumption of risk. Warren Magnuson, chairman of the Senate Commerce Committee and one of the bill’s sponsors, explained, “this warning will . . . serve notice upon all who read it that they smoke at their own risk.”53 In the historic language of Edward Bernays, the industry had reengineered consumer consent to assume the risks associated with a dangerous and sometimes deadly product, and moreover had accomplished this even while denying that the product posed a risk. Most importantly, the industry had heightened social and cultural expectations of individual responsibility that would be crucial to its future.
With the lawyers’ committee’s version of the bill in hand, the industry unleashed its newly invigorated Tobacco Institute on the back halls of Congress. Earle Clements, a former governor, U.S. congressman, and senator from Kentucky, masterminded the industry’s legislative strategy.54 Clements, having learned the legislative dance from the master of American politics—he had served as majority whip and lieutenant to Lyndon Johnson when Johnson was senate majority leader—brought a unique combination of political experience and powerful connections to the industry’s agenda.55 He had been inst
rumental in engineering the Democrats’ Senate majority in 1958 and had many legislators in his debt.56 After Johnson’s landslide victory in the 1964 presidential election, Lady Bird Johnson hired Clements’s daughter as her appointments secretary.57 In short, Clements was in thick with Johnson. When Johnson, who had quit smoking in 1955 following a massive heart attack, sent his proposals for public health programs to Congress in 1965, smoking was not on the list.58 Clements enlisted Oren Harris, chairman of the House Interstate Commerce Committee, to help slow FTC attempts to place a label on cigarette packages. Harris held hearings on cigarette regulation before the FTC announced its labeling initiative in June 1964.59 In the intensive lobbying that would be required to secure the industry’s version of the bill, Clements was ably assisted by Abe Fortas, Washington attorney and power broker, whose firm had been central in devising tobacco-industry strategy. Fortas, who worked the phone lines in the legislative campaign, would soon be named by Johnson to the Supreme Court. Big Tobacco had friends in the highest places.60
Although the Policy Committee was worried that southern congressmen might oppose federal preemption of state authority (the battles over civil rights made federal authority and states’ rights a big issue in 1964), the lawyers nonetheless concluded that “this did not appear to be a cause of great concern because of the important position of the industry in Southern States and the difference between what we have in mind and civil rights legislation.”61 There was already in place a strong contingent of legislators from tobacco-growing states ready to support any measures deemed beneficial to their local constituents of farmers and businesses.
The Federal Cigarette Labeling and Advertising Act emerged from Congress bearing the fingerprints of the tobacco industry and its remarkably able, if heavy-handed, lobby. If the bill read as if it might have been written by the industry, this was because in large measure it had been. The proposed FTC warning label had been watered down to read: “Caution: Cigarette Smoking May Be Hazardous to Your Health.” Indeed, such ambiguity—“may be”—made it a warning in name only, all but officially retracting the findings of the surgeon general’s committee. The FTC protested this language but had no power to change it. “The Commission is convinced that the present cautionary statement on cigarette packages . . . cannot compete with the forces that promote cigarette smoking.”62 At the hearings before the Senate Commerce Committee, the industry orchestrated the testimony of some thirty-eight scientists, most of whom had received funds from the TIRC, the Tobacco Institute, or the law firms. Issues of science, proof, and knowledge were repeatedly raised by questioners and witnesses alike, as if the surgeon general had never studied or issued a report on precisely such questions. But given the powerful political interests at stake, the senators were unwilling to take the surgeon general’s word at face value. Committee Chairman Warren Magnuson, under considerable pressure from Fortas and other industry representatives, eventually acceded to the weaker wording of the House bill as well as other important concessions, such as leaving the label’s placement to the companies’ discretion. The bill also explicitly prohibited any regulation of tobacco advertising for four years.63
The Federal Cigarette Labeling and Advertising Act of 1965 (FCLAA) is a classic demonstration of how efforts to regulate can be turned 180 degrees—given enormous clout in Congress and a successful strategy, implemented with great tactical skill and military precision. The chief beneficiary of FCLAA—despite public proclamations to the contrary—was the tobacco industry. The legislation also provides a powerful reminder of the heterogeneity of federal policy making. As much as the act marked congressional recognition of growing concern about the public health impact of tobacco, it also gave a sharp rebuke to the FTC. When the authority of an “independent” regulatory agency came up against congressional interests, the agency could be easily eclipsed. John Blatnik was one of eight congressmen and senators in 1965 who wrote to President Johnson urging him to veto the bill. In their letter, they voiced the concern that though packaged as a public health intervention, the law “protects only the cigarette industry.” In particular, they pointed to the prohibition on FTC requirements for health warnings in ads for four years. “This delay is inexcusable,” they wrote.64
According to Michael Pertschuk, who was a young staff member of the Senate Commerce Committee in 1965 and was principally responsible for moving the bill through Congress, this first major attempt at cigarette regulation “ended up a sorry piece of tobacco knavery.”65 He later wrote, “[W]hat tobacco wanted, tobacco got.”66 This conclusion does not require any deep historical perspective. At the time of the passage of the act, a number of observers pointed out with considerable despair how this so-called consumer legislation brazenly advanced the interests of the industry it purported to regulate. Although Magnuson publicly called it “a forthright and historic step toward the responsible protection of the nation’s citizens,” the New York Times labeled it “a shocking piece of special interest legislation” that “protect[s] the economic health of the tobacco industry by freeing it of proper regulation.”67 Journalist Elizabeth Drew wrote, “It is an unabashed act to protect private industry from government regulation.”68
Although cigarette sales slipped in the immediate aftermath of the surgeon general’s report, by June 1964 they had rebounded. “Tobacco products pass across sales counters more frequently than anything except money,” wrote one commentator.69 By 1966, cigarette sales had reached all time highs. In June 1967, the FTC could find “virtually no evidence that the warning statement on cigarette packages has had any significant effect.”70
FCLAA marks one of American history’s most impressive examples of the power of special interests to shape congressional action. Even as the industry offered minor concessions in subsequent legislation, analysts would repeatedly note the historical importance of the act in protecting the industry from more effective regulation and costly litigation.71 The federal labeling law would be modified twice by Congress, both times to make changes in the label’s wording. The Public Health Cigarette Smoking Act of 1969, passed after more than a year of testimony and debate, mandated that beginning in 1971 all packages would announce: “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your Health.”72 And in 1984, Congress passed the Comprehensive Smoking Prevention Education Act, creating the four rotating labels that still adorn U.S. packages more than two decades later. On Capitol Hill, the ability of public health forces to spirit this bill through was widely seen as marking an erosion in the strength of the tobacco lobby, but the labels apparently did little to reduce smoking.73 Certainly, the structure of Congress and the disarray of the public health community contributed to this outcome. But FCLAA clearly shows that the industry possessed a systematic strategy and a capacity to further its interests irrespective of the public good.
Before 1964, it had been widely perceived that the state bore essential responsibility to regulate market forces and interests that could be socially harmful. The early failures to regulate tobacco demonstrated the limits of this ideal. In the face of a report sponsored by the federal government categorically identifying cigarettes as a dire risk to health and a cause of serious disease, the industry had successfully secured a major piece of federal legislation that protected it from further regulation, tort litigation, and other serious corporate risks. It was a turnabout that shocked public health advocates and other observers of the political scene. In the future, many corporations would look to the tobacco industry with awe and admiration as a model for how best to utilize legislation and regulation in their own interests.
Even as the industry acceded to labeling, it worked diligently to avoid any regulation of its advertising. Since advertising had been such a prominent and attractive spur to tobacco use throughout the century, it was not surprising that antitobacco forces concentrated on developing new restrictions. In April 1964, with a range of FTC and statutory actions pending, the industry announced a program of “self-regula
tion” of its advertising. The companies offered a well-worn approach to federal oversight by promising to regulate themselves as good and responsible corporate citizens. 74 The Cigarette Advertising Code, designed by the industry’s legal team, promised to ban all cigarette advertising aimed at those under twenty-one; to ban all unproven health claims; and to ban the “virility” theme. It also assured that models under twenty-five years of age would not be used in tobacco ads, nor would testimonials by entertainers or athletes be allowed. Finally, the code prohibited ads depicting smoking as “essential to social prominence, distinction, success, or sexual attraction.”75
The companies agreed to fines of up to $100,000 for a violation of the code. Infractions would be policed exclusively by the code’s administrator, who would be appointed by the industry. In June 1965, the Tobacco Institute announced that former New Jersey Governor Robert B. Meyner had agreed to serve as administrator. Although Meyner vowed to enforce an exacting standard, no fines were issued during his tenure.76
The industry and its advocates trumpeted the Cigarette Advertising Code as an enlightened and effective innovation. During congressional hearings on the renewal of FCLAA in 1969, Vincent Wasilewski, the president of the National Association of Broadcasters (NAB), testified that tobacco ads (which had cleared the voluntary standards of the industry) were also subject to systematic evaluation and regulation by the Code Authority, the broadcast industry’s own voluntary review board. According to Wasilewski, the code had performed admirably in assuring that tobacco ads met the high standards of both the tobacco and the broadcast industries. This testimony was vigorously contested, however, by Warren Braren, one of the earliest whistle-blowers in the tobacco conflict, who came forward to argue that the broadcasters’ policy had had virtually no effect on the tobacco industry’s commercials. Braren had been head of the Code Authority’s New York office and was principal author of a 1966 report that documented a wide range of questionable practices and depictions among tobacco industry ads including “encouragement to smoke, the good life, nature settings, popularity and filter representations.”77 Braren concluded that current cigarette commercials “cannot help but have an intrinsic youth appeal.”78