The Cigarette Century

by Allan Brandt

  Review of company patents confirmed the industry’s interest in controlling nicotine delivery. One patent that the FDA recovered explained, “maintaining the nicotine content at a sufficiently high level to provide the desired physiological activity, taste, and odor . . . can thus be seen to be a significant problem in the tobacco art.”103 Subsequent research had revealed Brown & Williamson’s efforts to genetically engineer new varieties of tobacco with double the typical levels of nicotine. Industry blending handbooks described how chemical additives, such as ammonia, could be used to “liberate free nicotine” from the blend, with associated increases, according to smokers, in “impact” and “satisfaction.”

  Ads such as the one above were explicitly designed to allay rising concerns about the health impacts of smoking. The idea of a “30-day” test—conducted both by a doctor on a series of patients and by a “secretary”—implied that individual judgment on the part of clinicians and patients could supplant findings based upon the study of smoking in large populations. “Mildness” became a popular euphemism to suggest a product free of serious risk. “Irritation” was widely associated with cancer-causing toxins.

  These Chesterfield advertisements coincided with news of the epidemiological studies linking smoking to lung cancer that appeared beginning in 1950. Arthur Godfrey, who regularly pitched Chesterfields on his televised variety show, promised “No adverse effects to the nose, throat, and sinuses from smoking Chesterfield.” Godfrey survived the removal of a lung tumor in 1959 but succumbed to emphysema in 1983.

  Prominent Hollywood stars were used in 1950s ads to reassure smokers about the health effects of smoking. Advertisements frequently took on an aura of science, sustained by celebrity hype. Fredric March promised that new L&M Filters were “Just what the doctor ordered.” And Marlene Dietrich claimed that “scientific tests prove Lucky Strike milder.”

  The epidemiological studies ofRichard Doll (right) in GreatBritain and Ernst Wynder(below) in the United Stateswould offer crucial evidence thatsmoking causes lung cancer.These studies, as well as othersthat followed, would become thebasis for understandingimportant causal relationships ofhealth and disease in populations.

  The ”Frank Statement” was drafted by the public relations firm of Hill & Knowlton on behalf of the tobacco industry. It appeared in 448 American newspapers on January 4, 1954. It assured the public that ”We accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our business.” In addition, it announced the formation of the Tobacco Industry Research Committee to undertake the ”research effort into all phases of tobacco use and health.”

  The first Scientific Advisory Board of the Tobacco Industry Research Committee was hand picked by Hill & Knowlton executives with the assistance of industry scientists. (Pictured, left to right: McKeen Cattell, Paul Kotin, Clarence Cook Little, Stanley Reimann, Leon Jacobson, and Kenneth Merrill Lynch. Note: Cattell is holding a cigarette.)

  Surgeon General Luther Terry announced the findings of his Advisory Committee on Smoking and Health on January 11, 1964, in a nationally televised press conference.

  The new findings about the health effects of smoking had powerful implications for the production and marketing of cigarettes. Marlboro cigarettes were first introduced in the late 1920s as a woman’s brand with the slogan ”Mild as May.” In 1954, they were radically repackaged and reengineered as a filter cigarette that would appeal to men.

  The introduction of the ”new” Marlboro, with the now legendary red and white chevron, drew on the full range of marketing tools in the industry’s increasing sophisticated kit. Early Marlboro Men all sported this tattoo, creating a new ”brotherhood” of rugged male smokers of filter cigarettes.

  These four ads offer a cigarette history of brands smoked by Rose Cipollone, who sued the companies in 1983 following her diagnosis and treatment for lung cancer. The ads reflect the characteristic trade-offs faced by smokers as new knowledge of the harms of smoking emerged. Cipollone would switch to filters and to brands claiming reduced risks.

  These ads became the archetypes of cigarette promotion in the age of known risks. Built upon images both broad and elastic in symbolic meaning, ad copy all but disappeared. The Joe Camel campaign, explicitly designed to compete with Marlboro for new, younger smokers, drew fire for its obvious appeal to youth.

  This photo from the congressional hearings before the Waxman Committee proved to be a historic public humiliation for the tobacco industry. At these hearings, the CEOs collectively claimed under oath that they ”did not believe” that smoking caused cancer and was addictive. These assertions, coming some three decades after the first surgeon general’s report, were widely seen as destroying any remaining credibility on the part of the companies. Within a year, all these men would be replaced.

  Former Surgeon General C. Everett Koop and FDA Commissioner David Kessler expressed concerns about the ”Global Tobacco Settlement” that emerged from negotiations with the attorneys general following their collective suits against the companies. Kessler and Koop aggressively pursued a health agenda on smoking during their terms in office.

  Mississippi Attorney General Michael Moore led the states’ legal assault on the industry. Pictured here with attorneys Ron Motley and Richard Scruggs, experienced members of the plaintiffs bar, they led the massive legal attack that would culminate in the $246 billion payments to the states. Ultimately, less than 5 percent of these funds would be used to support tobacco-control efforts.

  Miami attorney Stanley Rosenblatt had unusual success in bringing two historic class action cases against the industry to trial. Broin v. Philip Morris, brought on behalf of flight attendants, would be settled for $300 million. Engle v. R.J. Reynolds resulted in a finding of $145 billion for the plaintiffs; this award would ultimately be overturned by the Florida Supreme Court, although the findings against the companies for fraud and conspiracy would be upheld. Rosenblatt is pictured here with expert witness Julius B. Richmond, former surgeon general, who testified extensively in both trials. Richmond’s 1979 surgeon general’s report presented the then ”overwhelming” scientific evidence of the multiple harms of cigarette use.

  Data showing that physicians were among the earliest groups to quit smoking offered a potent message to consumers about the harms of cigarette use.

  The recognition of the harms of cigarette smoke for nonsmokers radically reconfigured public health campaigns to control tobacco.

  Tobacco companies sought to combat a rising tide of public restrictions on smoking with a smoker’s rights movement that appealed to libertarian values and hostility to big government. “We believe that the answer to most smoking issues lies in accommodation,” explained these advertisements, “in finding ways in which smokers and nonsmokerscan coexist peacefully.” Although RJR promised “together, we can work it out,” the campaign never generated significant public support.

  Although the health warning labels in the United States have not been modified since 1984 (four rotating labels on the side of the package), a number of countries have devised pictorial package warnings that have been shown to reduce consumption.

  As smoking began to decline in Western, developed nations, the tobacco industry pushed aggressively to expand into markets in Asia, Africa, and eastern Europe (among others). Western brands were often viewed as possessing special status. Above, Marlboro advertising in Phnom Penh, Cambodia. Left, an Indonesian cigarette vendor in Jakarta.

  These children represent the future of the multinational tobacco industry. Recruiting young smokers remains an essential goal of the tobacco industry. In the early twenty-first century, there are more cigarette smokers than ever before. Above, Sergei Mayorov, an eight-year-old street child in St. Petersburg, who insists on smoking Marlboros. Right, street children in Shenzhen, China.

  The specific policies that Kessler proposed centered on preventing children from becoming addicted. Noting that over 80 percent of smokers begin regular use be
fore they turned eighteen, Kessler reasoned that the most effective approach to this “pediatric disease” would be interventions to assure that children never smoke. His rules prohibited sales to anyone under eighteen years of age, required retailers to check for identification, and banned vending machines, which had been shown to be a major vehicle for underage smokers to obtain cigarettes. The rules also forbade free samples and “kiddie packs” of small numbers of cigarettes. Recognizing the importance of advertising, Kessler called for restrictions on promotional items pitched at kids, restrictions on billboard placement near schools and playgrounds, and text-only, black-and-white tobacco advertisements. These rules would eliminate Joe Camel. Finally, the rules called for a major national educational program directed at youth. Research had shown that although children understood that cigarettes are addictive, they tended to discount the idea that they themselves were vulnerable to the addiction. “This new FDA regulation presents a historical opportunity,” the commissioner concluded, “giving the United States a chance to reduce the consumption of a product that kills more Americans each year than die from any other preventable cause. The approach is focused in the right place: sparing children and adolescents a lifetime of addiction to tobacco.” 104

  Kessler, with the aid of Vice President Al Gore, persuaded President Clinton to back the initiative. During the 1996 presidential race, the tobacco issue had worked to Clinton’s benefit.105 Republican presidential nominee Robert Dole told reporters, “To some people, smoking is addictive; to others, they can take it or leave it.” On NBC’s Today Show, he told Katie Couric, “There is a mixed view among scientists and doctors about whether it is addictive or not. I’m not certain it’s addictive.” Dole went on to dig an even deeper hole for himself by saying, “We know it’s not good for kids. But a lot of things aren’t good . . . some would say milk’s not good.” Although Dole told Couric that “I haven’t any idea whether I’ve had money directed to my campaign by tobacco companies. I’m not in their pocket,” reporters quickly revealed that Dole had taken $477,000 in tobacco industry contributions and flown on its corporate jets thirty-eight times. Former Surgeon General Koop commented that Dole was “either exposed by his abysmal lack of knowledge of nicotine addiction or his blind support of the tobacco industry.”106

  The episode was kept alive in the media by a heckler in a cigarette costume, dubbed Buttman, who began to appear at all of Dole’s scheduled appearances. The Dole tobacco statements exacerbated the underlying perceptions about Dole’s advanced age and his ties to special interests. Clinton’s campaign, exacting their advantage, aired spots showing young kids lighting up. “One will die from the habit,” noted the narrator. “Bob Dole or Bill Clinton—who is really protecting our children?” Although Clinton had initially been cautious about supporting Kessler’s initiative, fearing that it might alienate voters in tobacco-growing states, ultimately the issue—with Dole’s help—played into his hands.

  The emergence of tobacco in a presidential campaign was yet another indicator of the cigarette’s dramatic fall from favor. Association with the tobacco companies and their best-known product were now a liability for a politician. The traditional arguments of freedom of choice, assumption of risk, and scientific uncertainty had begun to collapse under the weight of successive public revelations. The industry and its supporters had been delegitimated in the culture and the polity.

  The regulations issued by the FDA would not go unchallenged. The tobacco industry, built on youth, unfettered promotion, and nicotine, had successfully resisted regulation for a century. From a federal perspective, four decades after the critical studies linking cigarettes to lung cancer, tobacco was all but unregulated. Now, the FDA rules threatened the very fundamentals of the industry’s historic ability to promote and sustain the use of cigarettes in American society.

  As soon as the FDA issued its rules on tobacco, the industry sued in North Carolina district court, claiming that the FDA did not have jurisdiction over tobacco. Only Congress, the companies argued, had the authority to regulate tobacco. Moreover, they contended that cigarettes did not meet the criteria of either a drug or a drug-delivery device. Since tobacco products were not intended or promoted to affect the function or structure of the body, according to the industry, they could not be regulated on those grounds.

  In April 1997, Judge William L. Osteen, Sr., who had grown up on a tobacco farm and had been appointed to the court by President George Bush, ruled that the FDA could in fact “impose access restrictions and labeling requirements.” He also asserted, however, that the agency did not have the authority to limit advertising to youth. The decision was immediately appealed by both sides to the U.S. Circuit Court of Appeals for the Fourth Circuit, which heard the case in August 1997. Before a decision could be issued, however, one of three judges on the panel died. As a result, it was reargued in June 1998, and by a 2-1 decision, the FDA rules were struck down. The case then moved to the Supreme Court, where it was heard in December 1999.

  The Supreme Court proceedings were largely shaped by the historical idiosyncrasies of the cigarette and its regulatory history. Cigarettes did not fit the therapeutic focus of traditional FDA regulation. Justice Sandra Day O’Connor asked Solicitor General Seth Waxman, “Is it the position of the government that the use of tobacco is safe and effective?” Richard Cooper, a former FDA general counsel who represented the industry, went on to argue that the FDA could not assert regulatory authority over a product “if it doesn’t purport to have a health benefit.”107 Cooper called the FDA’s assertion of jurisdiction over tobacco “lawless.” The FDA had never asserted this authority in the past, he pointed out, and Congress had never given it.

  In March 2000, the Supreme Court issued its decision, ruling by a 5-4 margin that the FDA did not have jurisdiction to regulate tobacco. The majority opinion, written by O’Connor and joined by Justices Rehnquist, Scalia, Kennedy, and Thomas, noted that Congress had enacted six statutes regulating tobacco and that it had on several occasions considered and rejected legislation that would have explicitly given the FDA authority over cigarettes. Even as the court directly conceded the powerful public health effects of tobacco products, it nonetheless concluded that only Congress could establish jurisdiction. The decision took what O’Connor called a “holistic” approach to discerning congressional intent, broadly assessing the entire history and purpose of federal tobacco legislation rather than making a close reading of the FDA’s definitional claims to authority. 108 The majority noted, somewhat ironically, that “Congress’ actions in this area have evidenced a clear intent to preclude a meaningful policymaking role for any administrative agency.” This had been precisely the quandary confronted by the FDA. “It is evident that Congress has ratified the FDA’s previous, long-held position that it lacks jurisdiction to regulate tobacco products as customarily marketed,” the decision concluded. Finally, the Court expressed concern that a finding of FDA jurisdiction would also give it the discretion to ban cigarettes entirely, a move of radical impact and significance.

  Justice Breyer, joined by Stevens, Souter, and Ginsburg, argued in dissent that tobacco did fit within the statutory language of the Food, Drug, and Cosmetic Act “read literally.” “Second, the statute’s basic purpose—the protection of public health—supports the inclusion of cigarettes within its scope.” “Unregulated tobacco use,” Breyer went on, “causes more than 400,000 people to die each year from tobacco-related illnesses, such as cancer, respiratory illnesses and heart disease. Indeed, tobacco products kill more people in this country every year than AIDS, car accidents, alcohol, homicides, illegal drugs, suicides, and fires, combined.” According to the dissent, the “majority’s conclusion is counter-intuitive.”109

  It was a striking defeat. Kessler had come within a single vote of achieving the most dramatic public health intervention in the history of the cigarette, yet from a regulatory perspective, the FDA and the federal government remained at square one. Kessler had made a strategic
decision to assert jurisdiction—something none of his predecessors had even considered—without any additional legislative authority. He assumed on the basis of critical legal readings of his mandate that the authority was already his. Moreover, he surely realized that following the Republican takeover of the Congress in 1994, no comprehensive new legislation would pass. Nowhere was the political shift in Congress more immediately evident than in the change of command in the House Subcommittee on Health and the Environment, where the chair passed from Henry Waxman to Virginia Republican Thomas Bliley, one of the tobacco companies’ most reliable supporters. Newt Gingrich, the architect of the congressional Republicans’ “Contract for America,” had called Kessler a “bully” and a “thug.”110