Ashes to Ashes (53 page)

A few months after surviving his surgery and finally casting cigarettes aside, Fieser wrote in
Reader’s Digest
, the world’s most doggedly antitobacco publication, “Perhaps my experience will convince others that
the time to quit smoking is now!”
(italics in original text). For his belated repentance, the Lord—and an amazingly durable constitution—let Louis Fieser live another eleven years, to the age of seventy-seven. His chemistry textbook, as co-edited by his widow, continues in print as of this writing.

Marlboro Mirage

I
N CALLING
for “appropriate remedial action” to correct the immense insult to Americans’ collective health as a result of their long affair with the cigarette, the Surgeon General’s learned advisory committee had not suggested what form that massive dose of medicine might take or who should administer it.

Plainly the tobacco industry itself was not about to undertake sweeping reforms in its way of doing business unless compelled to—it was making too much money for that, and in America making money ranked as an exalted social good. Cigarettes, moreover, had taken hold as a mass consumer product and socially acceptable habit more than a full generation
before
their adverse health effects were authoritatively established. To urge the nation, as its official policy, to abandon or even curb the smoking habit was to expect a display of iron self-discipline among close to 70 million of its citizens and of nearly divine altruism among those who thrived economically off tobacco—including 300,000 stockholders and perhaps six times as many farmers, factory workers, shopkeepers, innkeepers, and restaurateurs, as well as closely affiliated beneficiaries like those in the broadcasting business, which derived 10 percent of its advertising revenues from cigarette manufacturers.

Tobacco’s hold extended even to those whom society expected to serve as its prime preceptors in matters of health and hygiene. Doctors, especially those who indulged themselves, hesitated to prescribe abstinence to their patients, partly out of fear of offending and thereby losing them, just as the American Cancer Society, the nonpareil among private voluntary health agencies, would
not risk its survival by too harsh an assault against the tobacco menace for fear it would anger contributors who smoked. Even schoolteachers who had just finished a lecture to their pupils on the evils of smoking often beelined to the faculty lounge for a cigarette break.

The dilemma facing antismoking advocates was aptly noted by British scholar Thomas McKeown in his book
The Role of Medicine
, in which he argued that the healing sciences would prove far more efficient if they devoted themselves to preventing rather than treating diseases. Mankind’s most destructive habits, McKeown wrote, “commonly begin as pleasures of which we have no need and end as necessities in which we have no pleasure. Nonetheless we tend to resent the suggestion that anyone should try to change them, even on the disarming grounds that they do so for our own good.” Indeed, only a generation earlier the United States had witnessed, in the form of the Eighteenth Amendment, the travesty of mandated abstinence from alcoholic beverages, a scourge then viewed as no less debilitating than cigarettes were now said to be. The lesson of Prohibition seemed clear to all: it was one thing to condemn a vice and quite another to try to eliminate it by unenforceable laws. Government, the American masses perceived, did not exist to perfect human nature.

But it could, at least, instruct the citizenry. And there were clear precedents for governmental measures against disease-causing agents of epidemic proportion—as smoking had now been judged by the report to the Surgeon General. Most commonly, these measures of disease control were undertaken before the precise pathogenic mechanisms were fully understood—smallpox, typhus, pellagra, and poliomyelitis, for examples, were all best combated not by treatment but by prevention. If smoking could not be outlawed, its practice could surely be discouraged by governmental policies. But someone would have to adopt and implement them, and the collective might of the tobacco business stood in the way.

The national political muscle exercised by the cigarette companies and their allies was rivaled only by that of the oil and textile industries; no others were so compactly concentrated in geopolitical terms. Tobacco, while grown in 12 percent of the 435 U.S. congressional districts in the early ’Sixties, was king in just two dozen of them spread among just six states. In North Carolina, some 47 percent of cash receipts from farm commodities was produced by tobacco; in Kentucky, the comparable figure was 40 percent; in South Carolina, 25 percent; and in Virginia, 19 percent—numbers that served wonderfully to concentrate the attention of those states’ congressional representatives. Furthering the industry’s strength was Washington’s legislative seniority system under which one-third of the chairmen of the standing House committees and one-fourth of the Senate committees came from the six leading tobacco states, where conservative Democrats had controlled the political machinery for more than a century,
except during the Reconstruction period. The tobacco bloc, in defense of its realm, enjoyed a natural affinity with other Southern lawmakers, who tended to unite in matters of regional concern, and with congressional Republicans, by and large pro-business and anti-governmental intervention—except when protecting, indeed subsidizing, the farmers in the G.O.P.-dominated Midwest. Northern liberals partial to government efforts to ameliorate pressing social problems found themselves susceptible to tobacco-state congressmen willing to trade off their votes on measures they would ordinarily oppose but were dear to liberal hearts—like urban renewal funding—in return for keeping government regulators away from the cigarette business. As consumer advocate Ralph Nader commented, “Any group of really cohesive congressmen can have disproportionate power like the tobacco bloc … [and become] a proverbial battering ram, saying in effect to their colleagues, ‘This is our particular bailiwick, and if you ever want us to defer to you someday, you’d better go along with us on this issue.’”

Tobacco’s sway was no less apparent in the White House, where Lyndon Johnson had become the first President from a state of the old Confederacy since the antebellum era (not counting Wilson, a transplanted Virginian). Johnson was much in need of votes from his fellow Southerners to put across his ambitious social programs, including the broadening of civil rights, medical care for the elderly, and a war on poverty—none of them issues likely to stir an outpouring of affection in Dixie. A heavy smoker himself until he suffered a serious heart attack while serving as Senate majority leader in 1955 and was ordered by his doctors to quit the habit, the President told reporters a few months after the Surgeon General’s panel had reported, “I’ve missed it [smoking] every day, but I haven’t gone back on it, and I’m glad that I haven’t.” He would say no more about the subject throughout his five years in office. In this respect President Johnson was no different from any other political officeholder who avoids antagonizing those he does not have to among the electorate, about 40 percent of whom were smokers at this time.

It was not without justification, then, two months before the Surgeon General’s committee recommended remedial action on the smoking problem, that
Advertising Age’s
Washington columnist, Stanley Cohen, wrote that suppression of the tobacco industry by the political process would prove “a painful and thankless assignment” representing “one of the most difficult regulatory challenges ever faced by government and industry.” The first serious effort nonetheless began almost at once and came from a thoroughly unlikely source—one of the government’s most torpid backwaters.

II

AS
the scientific evidence against it gathered throughout the 1950s, the tobacco industry did not merely deny, dispute, and mock it as a defensive strategy; it also spent heavily on advertising as its prime offensive weapon to convince its customers that the product was well worth any risk that might accompany their use of it. In achieving a 30 percent rise in unit sales during the decade, the tobacco companies nearly tripled their advertising and promotional outlays—a trend that continued into the ’Sixties. True, the Federal Trade Commission had acted to halt the industry’s explicit health claims and most offensive innuendos, but it seemed disinclined to stay the hand of Madison Avenue’s dream-spinners, so adept at making cigarettes desirable by portraying them in words and pictures as pleasure-producing, compatible with physical well-being and fitness, and conducive if not indispensable to professional, social, and sexual success—without the merest hint to the consumer of the serious health hazards of smoking.

This omission struck the tobacco industry’s detractors as precisely the sort of deceptive advertising practice against which the FTC had been authorized to act by Congress in the 1938 expansion of its powers. Such a failure to disclose pertinent characteristics of the product was no less of a deception than false claims in its behalf—and seemed especially regrettable now, in the immediate wake of the judgment by the Surgeon General’s committee. But just what initiatives the FTC could take on its own in such cases had not been clearly spelled out by Congress, nor was the FTC, by its nature, history, and dependency on the lawmakers for its financial lifeblood, inclined to strike out boldly on its own.

Given its own limitation of time, personnel, and expertise, Congress turned increasingly to the “independent, quasi-judicial regulatory agencies” it had created to shape rules and regulations interpreting how federal statutes were to be applied to the business community, especially in technical matters. This arrangement was working well enough where Congress had established regulatory bodies with watchdog authority over specific industries, as in the cases of the Securities and Exchange Commission, the Federal Communications Commission, the Federal Power Commission, and the Food and Drug Administration, and the courts had by and large upheld their delegated oversight powers. But no sooner had the FTC been created under the Wilsonian reform movement in 1914 than the First World War reduced its mission; any brake on the national industrial engine bordered on the unpatriotic. When the Republicans ruled Washington throughout the ’Twenties and into the Great Depression, they had scant interest in the FTC as an interventionist tool to further
economic justice. And so its regulatory machinery atrophied, and Franklin Roosevelt found that the agency had become a dumping ground for political patronage; when he wanted to control the wayward impulses of businessmen in critical industries, he created new agencies specifically for that purpose. Without the will to move aggressively against suspect industrywide practices, the FTC almost never acted on its own initiative but moved against one transgressor at a time in cases brought to it by a wounded competitor or aggrieved consumer. Without statutory power to impose serious punitive or compensatory fines—only slaps on the wrist in the form of cease-and-desist orders after protracted investigations and hearings—the commission functioned cumbersomely, if at all. A typical action consumed four years, and sixteen were required to get the “Liver” out of deceptively named Carter’s Little Liver Pills. Besides dwelling on trivial problems, the agency was hospitable to cronyism, absenteeism, alcoholism, and lethargy—almost nobody there worked late or on weekends—and reflected a Southern courthouse bias against fancy Ivy League lawyers. The result was institutionalized mediocrity, at best, and, as U.S. Representative Blatnik had shown when investigating deceptive filter-cigarette advertising in the late ’Fifties, massive default of its public charge.

When John Kennedy took office in 1961, eager to revitalize the federal regulatory agencies, he was leaned on heavily by popular and powerful Senator Estes Kefauver to name a fellow Tennessean, Paul Randall Dixon, to chair the FTC. Dixon, who had begun his career there as a trial lawyer and won his epaulets as chief counsel of Kefauver’s headline-grabbing subcommittee investigating corrupt business and labor practices, pledged to bring a new broom to the agency and end its futile pursuit of malefactors long after their corrupt practices had been abandoned. “We are going to use a squad car instead of a hearse,” he promised. But the amiable, easygoing Rand Dixon, nicknamed “Windy” for his conversational excesses, talked a better game than he played. Most of the commission’s deadwood remained unpruned, and although Chairman Dixon staked out a claim in 1962 to industrywide rule-making authority without additional congressional empowerment—he cited the general authorizing language at the time the FTC was created—by early 1964 the agency had laid down rules for only two very small fish, makers of sleeping bags and “leakproof” dry-cell batteries.

This sort of toe-testing in troubled waters was hardly the hearty plunge into serious regulation being urged on Dixon by one of his four fellow commissioners, Philip Elman, perhaps the agency’s closest brush with brilliance in its lackluster history. A Harvard-trained lawyer who had clerked for U.S. Supreme Court Justice Felix Frankfurter, the peppery and opinionated Elman was anything but the usual cautious civil servant even after fifteen years in the Justice Department, where he had helped shape the government’s position in favor of striking down segregated public schools. Plucked from the Solicitor
General’s office by Attorney General Robert Kennedy to galvanize the FTC, Elman used his acid and sometimes rude tongue to call upon the agency to spot problem areas, undertake searching investigations into abuses, and lay down industrywide remedies. In the case of the tobacco industry, Elman’s impulses were contested by Commissioner Everette McIntyre, a twenty-five-year careerist at the agency, whose conservatism was buttressed by his origins: he was a native of North Carolina, heart of the cigarette business. The other two commissioners were moderates, like Dixon, and pliable to Elman’s coaxing.