by Allan Brandt
It was an ironic statement coming from this magazine, which had been created as a kind of antidote to commercial marketing in a consumer age.111 The editors acknowledged the impotence of education in the face of regulatory failure and the powerful engines of promotion, and conceded the limitations of their own model of a consumers’ democracy in which reliable information would protect citizens from dangerous or useless products.
The time had come for public health to employ the same tools of marketing and public relations that had served the tobacco companies so well. One upstart found a chink in the tobacco industry’s armor. John F. Banzhaf III, a young New York lawyer, in 1967 asked the Federal Communications Commission to apply the “fairness doctrine,” which required broadcasters to give equal time to opposing views on controversial topics, to cigarettes. Banzhaf contended that the blanket of tobacco ads merited “equal time” for antitobacco messages. “I was concerned about the use of the public airwaves to seduce young people into taking up smoking without any attempt to tell them the other side of the story on television and radio,” Banzhaf later wrote. “It looked as though the fairness doctrine offered a legal loop-hole that might allow me a large output for a small amount of input.”112
Banzhaf initially wrote to WCBS-TV in New York asking for free time to present the public health perspective on smoking. When this was summarily denied, as anticipated, Banzhaf filed a petition with the FCC, noting the response from the station. In June 1967, the FCC ruled in Banzhaf’s favor, requiring broadcasters currently airing tobacco ads to provide time to citizens seeking to present the hazards of smoking. According to the FCC ruling, “the repeated and continuous broadcasts of the advertisements may be a contributing factor to the adoption of a habit which may lead to untimely death.” As a result, broadcasters had a responsibility “to devote a significant amount of time to informing [their] listeners of the other side with the matter—that however enjoyable smoking may be, it represents a habit which may cause or contribute to the earlier death of the user.” “The simple fact” is “that the public interest means nothing if it does not include such a responsibility.”113 Although the FCC did not grant “equal time,” it did mandate a ratio of approximately three cigarette commercials to one antismoking announcement.114
This ruling was based on the assessment that smoking was a matter of sufficient controversy and public significance to trigger the statutory provisions requiring free time. During the next three years, public health messages offered by the voluntary health agencies received millions of dollars of “free” airplay. Until these antitobacco spots began to air, the companies had treated most regulatory initiatives as opportunities to dismiss public health as a trivial nuisance. Banzhaf’s single-handed intervention, however, created a worrisome situation, a hairline fracture in the industry’s dominant control of the structures of bureaucracy and regulation. Banzhaf monitored the stations’ compliance with the order, forcing stations to add more tobacco-control commercials if they fell short of the required ratio.115
The Banzhaf initiative unsettled the antitobacco status quo. The American Cancer Society had relied on sympathetic broadcasters to periodically air its public service announcements seeking donations, and its leaders apparently worried about alienating the networks. But as the FCC took up the fight, the ACS came to see opportunities. For the first time, public health engaged some of the strategies and techniques that had been invented on behalf of the tobacco companies a half-century earlier. The advertising firm of Lord, Geller, Federico & Partners set to work producing commercials on behalf of the society, donating time and resources. Richard Lord, the president of the company, had written copy for Kents, Parliaments, and Newports at both Young & Rubicam and Benton & Bowles and knew how cigarettes were marketed.116 The free airtime was put to good use. According to Thomas Whiteside, a reporter for the New Yorker, these antismoking ads “seemed to have the capacity of acting upon the existing crowd of cigarette commercials like antibodies grappling with some bacterial swarm.”117
“Have you ever thought what happens when you smoke a cigarette?” asked a man holding up a cigarette in an American Cancer Society spot. “We have.” Public health advocates were eager to see smoking finally tied to its consequences—the very reality that tobacco ads so studiously sought to deflect. The new public service announcements demonstrated for the first time how Madison Avenue savvy and ingenuity could be turned against Big Tobacco. William Talman, the television actor who, in the role of Hamilton Burger, had made a career out of losing case after case to Perry Mason, was now dying of lung cancer and bravely offered his services for an antitobacco spot:“I have lung cancer. Take some advice about smoking and losing from someone who’s been doing both for years. If you don’t smoke, don’t start. If you do smoke, quit. Don’t be a loser.”
Talman died before his message was broadcast.118
This ad and others had a noticeable impact on rates of smoking. In 1967, per capita consumption declined, as it would in each of the four years in which the equal time ads appeared. During this period, national cigarette consumption fell by 1 percent despite a 6.6 percent increase in population. 119 Banzhaf had discovered a set of tactics that public health forces would adopt as crucial to their efforts. First, his approach was indirect. Rather than argue for new ways of regulating the industry, he had used existing rules to shift the contested terrain to an entity independent of the industry, in this case the broadcasting networks. Second, Banzhaf demonstrated that the courts might provide a more sympathetic venue for public health advocacy than the legislature. The courts were not subject to the powerful political lobbying the industry had perfected. Finally, he had shown how strategic advocacy could use the resources of others to seek regulatory victories. In the FCC, Banzhaf had found a new ally whose authority he could employ toward a nascent public health campaign.
Now deeply involved in the legal battle, Banzhaf left his New York law firm to form Action on Smoking and Health (ASH), one of the first dedicated antitobacco advocacy organizations. ASH was free of the complex constituencies that prevented groups like the American Cancer Society from engaging in hand-to-hand combat with the industry. Banzhaf issued press releases calling himself “the Ralph Nader of the tobacco industry” and quickly showed his talent for riling not only the industry but his antitobacco allies. He took a teaching position at George Washington University Law School, where he decorated his office with photographs and clippings covering his own activities.120
The industry, caught off guard, explored strategies for negating these attacks. Ross R. Millhiser, president of Philip Morris, suggested that the industry might threaten to make the networks or individual stations “prove the accuracy of their unregulated anti-cigarette commercials.” He suggested that the “possibility of suit liability” might restrain such ads and sought to make the anticigarette commercials “more balanced.” Each antitobacco ad, he said, should be made to carry a disclaimer: “Caution: Cigarette smoking may be injurious to your health—or it may not be.”
Millhiser also suggested suing the ad agencies making the public service announcements, arguing, “We feel the charges are untrue, unsubstantiated, irresponsible, etc.”121 But such proposals merely showed the denial and defensiveness now ruling the industry’s internal culture. After more than two decades of overwhelming scientific evidence, some industry executives still clung to the belief that cigarettes would ultimately be exonerated. In such proposals, tobacco executives exposed their central vulnerability in prosecuting the tobacco wars: a set of entrenched views that increasingly strained public credibility.
In February 1969, the FCC issued a public notice that it would seek a ban on all broadcast cigarette advertising. Like the FTC, the FCC had been restricted from any regulation of the tobacco industry until the FCLAA moratorium expired on June 30, 1969. The FCC announcement put both the industry and Congress on notice that the agency was preparing to reenter the regulatory fray.122 The industry claimed that banning all broadcast ad
s would violate its First Amendment rights to free speech. To this the FCC responded:The issue is thus whether the First Amendment protects the advertising of a product as to which there is a most substantial showing that it is the main cause of lung cancer, the most important cause of emphysema and chronic bronchitis. We do not believe so.123
Even as the industry fought the FCC, it again offered concessions in exchange for an alternative advantage. The genius of this strategy was that the proposed concession (like package labeling in 1965) actually provided considerable advantage to the industry. With effective and frequent antitobacco messages appearing in prime time—and having apparently significant impacts on consumption—the industry reevaluated its commitment to constitutional rights. Banning tobacco from the airwaves would also end the equal-time advertisements, an outcome that started to have considerable appeal. In 1969, the industry once again acceded to regulation.
In July, Joseph F. Cullman III, president of Philip Morris, told the Consumer Subcommittee of the Senate Commerce Committee that the tobacco industry would voluntarily end all television advertising. In return, he requested that the industry be spared any potential antitrust legislation.124 Cullman’s offer surprised Congress as well as his allies in the broadcasting industry. His announcement preempted an emerging plan that would have gradually eliminated broadcast advertising. By the time the companies agreed to the ban, they clearly understood that it was neither a catastrophe for the industry nor a triumph for the tobacco control advocates; Great Britain had banned television ads in 1965 to little effect, and Denmark, France, Italy, Norway, Sweden, and Switzerland all had tight restrictions on broadcast ads—and high rates of smoking.125 On January 1, 1971, America heard its last tobacco jingle. The year before the ban, tobacco companies were the biggest advertisers on television, spending some $230 million a year and buying 8 percent of all advertising time.126
The broadcast ban, like FCLAA, served a number of industry interests. First, the end of cigarette commercials also ended broadcasters’ obligations to provide free time for public service announcements. Within weeks, the antitobacco ads had all but disappeared. Second, the prohibition on broadcast advertising seriously limited the opportunities for any company to introduce new brands, or more crucially, for new companies to gain entry into the market. Finally, there were obvious cost savings in the elimination of this most expensive form of promotion.127
The broadcast ad ban did lead to important shifts in cigarette marketing. Companies invested much more significantly in point-of-sale promotion and what would commonly come to be called “brand stretching.” The “Marlboro Country Store” sold products with the Marlboro logo, often turning their patrons into walking advertisements. Sponsorship of sporting events, especially auto racing, also became increasingly prominent. The Public Health Cigarette Smoking Act, which codified the voluntary ban, was also a bonanza for the print media. In the first year of the ban, Life magazine nearly doubled its pages of cigarette ads. Journalist Thomas Whiteside, who had closely followed the Banzhaf intervention, was outraged to see the print media take up where broadcasters left off. “How can any publisher—anyone—make money out of selling advertisements for a product that is known to cause death on a disastrous scale year after year?”128 According to Whiteside, Time and Newsweek also more than doubled their cigarette ads.129 Having watched the passage of the ad ban with considerable optimism, Whiteside was disgusted that the companies worked so diligently to maintain and expand their market. A mere broadcast ban, he wrote, was “insufficient to restrain the tobacco industry from what can only be regarded—considering what is known about the relationship of smoking and various diseases—as near slaughter on a massive scale.”130 Whiteside’s moral indignation marked an important shift in journalistic coverage of tobacco. Even as regulatory initiatives lagged, social and cultural attitudes about the cigarette and its producers were shifting.
With the “concession” of the broadcast ban, the industry moved ahead to block any warnings in advertising. The 1969 act extended the preemption on FTC labeling requirements for ads to at least July 1, 1972,131 and required that the FTC give Congress six months’ notice of any intention to issue regulations. In 1972, the FTC finally achieved its goal of requiring a warning label on all advertising. By the time these cautions appeared (in small type), however, they had lost all impact. What had seemed like an initiative of real significance when it was first proposed in 1964, was now an ineffective disclaimer whose main effect was to protect the industry from liability. The “warnings” had little impact on consumption.
In an age of growing political debate about consumer protection, the tobacco industry had devised a remarkably effective campaign to assure that it could successfully market a product of demonstrably great risk. The Tobacco Institute and its able lobbyists saw to it that cigarettes were explicitly excluded from series of important consumer legislation, including the Fair Labeling and Packaging Act of 1966, the Controlled Substances Act of 1970, and the Consumer Product Safety Act of 1972. Unlike the Federal Cigarette Labeling and Advertising Act, these bills often received little public scrutiny, but the Tobacco Institute closely monitored their design and passage to assure the explicit exclusion of its product.
Such approaches to negating regulation, however, did not go completely unnoticed. In 1974, Senator Frank E. Moss, a Utah Democrat, and the American Public Health Association submitted a petition to the Consumer Product Safety Commission (CPSC) asking that it ban cigarettes containing twenty-two or more milligrams of tar. (There were twenty-seven such brands, making up more than 15 percent of the current market.) This request was based on the provisions of the 1960 Federal Hazardous Substances Act. In their request, they noted that despite the labeling requirement, both cigarette sales and lung cancer had increased since 1965. When the petition was rejected by the CPSC by a vote of 3-2, Moss moved forward to file the request with the federal district court. In April 1975, Judge Oliver Gasch ruled that the CPSC had the right to ban the interstate shipping of high-tar cigarettes. In his opinion, Gasch noted that the hazards of cigarettes were not known in 1960, when the legislation was written. Although his ruling did not compel the CPSC to ban these cigarettes, the commission was ordered to consider whether some cigarettes were so high in tar that no warning could “sufficiently protect the public, so these cigarettes should be banned from interstate commerce.”132
The CPSC—eager to avoid the burdens of bringing cigarettes under its mandate—sought (with the able support of the Tobacco Institute) to have Congress pass an amendment that would explicitly exclude tobacco from its regulatory mandate. As columnist Colman McCarthy wrote in the Washington Post: Two questions can be asked. Is the Commission trying to avoid the issue because it knows that if anything was going to be done against the menace of cigarettes it would have been done long ago, and thus why waste effort on a cause hopelessly lost? Or is the commission about to sink into the mediocrity that characterizes so many other regulatory agencies, and be content to issue tough standards for hazardous playpens and tricycles while ducking an issue in which, according to Senator Moss, “hundreds of thousands of lives are at stake”?133
As McCarthy had noted, the CPSC’s desire to avoid having anything to do with tobacco products was not an anomaly. The regulatory agencies and their administrators understood that tobacco regulation would easily test the limits of their already limited authority. Asking mice to regulate the boa did not appear to serve the mice’s political interests. And after all, if Congress sought more control over tobacco, it should make its wishes known through legislation. The Tobacco Institute strongly encouraged such thinking. As the industry repeatedly insisted, Congress—where the industry could best exert its influence—was the only appropriate venue for any regulatory initiative. And so, rather than appeal the court’s ruling, the tobacco industry sought relief directly from Congress. By the mid-1970s, the well-oiled lobbying machinery preferred new legislation overturning the decision to the vagaries of another ju
dicial proceeding. In October 1975, Congress passed HR 6844, the CPSC Amendments Bill, specifically excluding tobacco products from the jurisdiction of the CPSC.134 President Gerald Ford signed the bill into law without fanfare.
While the industry decried the rise of burdensome regulation, the reality was that tobacco was all but exempt from government oversight. One of the most dangerous products in the history of American consumer culture was all but immune to the growing federal regulatory apparatus. Just as the FTC had been rebuked in 1964, so one could now add the FDA, the CPSC, the Occupational Health and Safety Administration, and a host of other agencies with the potential authority to regulate tobacco.
Given his deep southwestern roots and his aggressive legislative agenda, Lyndon Johnson was leery to risk alienating tobacco state congressmen and senators by advocating public health interventions. He did order, however, the establishment of a task force to address the growing lung cancer problem in light of the surgeon general’s report. Among the group’s first actions was the creation of a new initiative at the National Institutes of Health to bring together scientists from the government and the tobacco industry to explore the feasibility of a “less-hazardous cigarette.” Ernst Wynder, after publishing his early and critically important work in the 1950s on the epidemiology of smoking, had turned his attention to attempting to identify the biologically active components in smoke.135 Wynder became convinced that it would be possible to remove these agents, thereby making smoking safer, if not risk free. In 1968, he convinced the head of the National Cancer Institute, Kenneth Endicott, who had attempted without success to quit smoking, to set up a study group to conduct research on possibly safer products. Between 1968 and 1978 a committee known as the Tobacco Working Group (TWG) brought together industry and NCI scientists to explore low-yield filtered cigarettes. Prominent industry scientists, including Helmut Wakeham, Alexander Spears, and Murray Senkus, agreed to serve. The industry was both eager to be involved in such a public collaboration, while at the same time publicly insisting that they knew of nothing that made current cigarettes “unsafe.” The industry refused to offer up its own data on tobacco smoke, filtration, and tar yields.136