Authors: Richard Kluger
Having been primed by Senator Neuberger’s 1962 plea to the agency to move against cigarette advertisements for their failure to include health warnings, the FTC had all but invited the U.S. Public Health Service to draft an authoritative assessment of the medical case against smoking, and now, in the report to the Surgeon General, it had done just that. Commissioners Dixon, Ionian, and McIntyre had gathered at the FTC offices on the Saturday morning the SGAC report was made public and read through it together. “The report made a tremendous impression on him,” Elman recalled of Dixon’s reading. “ ‘Jesus, Phil, listen to this,’ he’d say and read out an excerpt, and before long he stubbed out his smoke and said, ‘That’s my last cigarette—I’ve got to talk to my boys,’ meaning his two sons, who were also heavy smokers.” When Dixon reached the part of the report calling for “appropriate remedial action,” he said to his colleagues, “They’re talking about us”—and Elman knew the iron was hot. “Let me get going on this, Rand,” he said, arguing that even if the tobacco industry were to take the FTC to court for inadequate statutory authority to regulate it, the commission was sure to prevail eventually before the Supreme Court under its activist chief justice, Earl Warren. Nor was there any point in the commissioners’ consulting first with congressional leaders, given their demonstrated indifference to the smoking peril; besides, the FTC was supposed to be an independent body that had no need to kowtow to Capitol Hill. The chairman gave Elman the nod. It was Rand Dixon’s shining hour.
Before that Saturday was over, Elman and Richard Posner, one of the gifted assistants he had brought in from outside the commission (and later to become a highly regarded University of Chicago law professor and federal appeals judge), had drafted a three-part regulatory rule, the chief feature of which was a mandatory warning label to appear on every cigarette pack and advertisement with either of two wordings:
a. C
AUTION
—C
IGARETTE
S
MOKING IS A
H
EALTH
H
AZARD
. The Surgeon General’s Advisory Committee has found that “cigarette smoking contributes to mortality from specific diseases and to the overall death rate”;
or
b. C
AUTION
: Cigarette smoking is dangerous to health. It may cause death from cancer and other diseases.
No pack or ad, moreover, was to state or imply “by words, pictures, symbols, sounds, devices,” or in any other way that the brand promoted health or well-being or was less hazardous than any other cigarette in the absence of “substantial and reliable evidence” to back up such a claim. Finally, no pack or ad was to state the tar and nicotine contents unless verified in accordance with “a uniform and reliable testing procedure” approved by the FTC. The proposed rule was approved that same week by the commission and a press conference scheduled for the following Saturday, just a week after the Surgeon General’s report was released, to announce the FTC initiative.
That Friday afternoon, Elman was greeted by Dixon, just back from the White House. “They want us to hold off,” the chairman told his spirited fellow commissioner, who was not entirely surprised, considering that Lyndon Johnson’s closest confidant and unofficial legal counselor was Abe Fortas, still a private practitioner representing, among other clients, Philip Morris. The President, Dixon was led to understand, felt that no single agency ought to go off on its own on the smoking problem, as the FTC now threatened to do; instead, it ought to act only as part of a coordinated government program.
To Elman, the White House directive sounded like a plan to sink the health warning in a bottomless quagmire of bureaucratic bickering. “Rand, it’s too late—we can’t pull it back,” Elman said, arguing that the press had already been alerted for a major announcement by the FTC, which, if canceled, would give the appearance that the agency, a supposedly independent watchdog of the public interest, could be dictated to by the White House. Maverick Elman also intimated to Dixon that if the chairman backed down, he himself would go public and the President would be made to appear tobacco’s “boy”. Anyway, the proposed rules were only proposals; the commission would hold full-dress hearings in March, so there was time to trim sails if necessary.
Dixon, with an uncontrollable agent provocateur in his midst, held his ground against the White House and announced the proposed health measure.
III
THE
FTC’s sudden show of strength set off even louder alarm bells than the Surgeon General’s report, which, according to Abe Krash at Arnold & Porter, legal counselors to Philip Morris, had come as a great shock to the tobacco industry. While the only really new aspect of the FTC proposal was the mandatory warning label, the very notion was, as Krash put it, “greatly troubling”
to many in the business who fiercely resented being asked to disparage their product on its own package and to include the same confession in their paid advertising.
To cushion the blow, if not evade it altogether, the cigarette manufacturers formed a united political front. Suddenly, Philip Morris’s decision to hire Abe Fortas well before the Kennedy assassination had the look of a providential act. There was now no more highly placed attorney in the capital than Fortas, with his easy access to the presidential ear; Fortas’s word in and of itself had immeasurable influence, which he exercised, without having to invoke the President’s name, in tobacco’s behalf until confirmed for a Supreme Court seat in mid-1965.
But the industry also needed a more active and visible power broker suited to the rough and tumble of congressional horse-trading, a role not much savored by the obvious candidate for the job, the Tobacco Institute’s president, George Allen, a rather formal—some said stiff—gentleman at ease with Cabinet officers and diplomats. Instead, the industry turned, largely on Fortas’s advice, to another Johnson intimate, Earle Clements, a canny old warrior and superb strategist who knew where all the levers were that operated Washington’s political machinery. A former Kentucky governor and U.S. senator who had been majority leader Johnson’s whip and most trusted lieutenant, a marvel of indirection in his dealings, he was known for such down-home Machiavellian maxims as “Never ask a man to vote for something that isn’t good for him.” Ousted from office in the 1956 Eisenhower landslide, he was called back to Washington to work for the Democratic National Committee during the 1960 election. After several years in the political wilderness as a lobbyist, he was buoyed by LBJ’s sudden accession to the White House, where Clements’s daughter began serving as Lady Bird Johnson’s appointment secretary and the old pol himself was welcomed at private movie screenings. Nearing seventy now and in need of income, Clements was a lovely catch for the moguls of tobacco. Rounding out the industry’s team of political maneuverers was H. Thomas Austern, a tough-talking, chain-smoking senior partner at Covington & Burling, considered by some to be Washington’s top legal shop, and a specialist in antitrust law and trade regulations.
In consultation with the cigarette companies’ “Secret Six” panel of general counselors, Austern orchestrated a three-part salvo in response to the FTC’s proposed regulation. First, no tobacco company officer asked to appear before the FTC at its formal hearings—by way of registering their view that the commission was acting without statutory authority from Congress in framing its rule-making on cigarettes and health. If Congress had wanted to empower the agency in such an explicit fashion, it would have done just that. Here was a matter too important to be decided on unilaterally by a mere administrative
agency instead of the people’s elected representatives in Congress. Second, the industry produced spokesmen, appearing both at the commission’s three-day hearing and wherever they were welcomed around the U.S., who argued that tobacco had played a prominent role in the development of the American nation since colonial times, that it was of surpassing economic importance to the South, and that its manufacture was entirely legal—among the very arguments used to justify slavery until the Civil War; the moral context of the practice went unmentioned, just as Austern elected not to confront the substance of the health charges against his clients. Finally, the tobacco advocates pursued the where-will-all-of-this-end defense by declaring, as North Carolina’s Governor Sanford had in a speech a month before the FTC hearings, “The automobile is the most dangerous machine ever invented, but we don’t require a warning on the steering wheel. Nor do we require airlines to put a warning on their tickets that accidents sometimes happen. It makes no more sense to require a skull and crossbones on a cigarette package.”
None of the foregoing arguments swayed the FTC. When formally issued in June 1964, with only Commissioner McIntyre dissenting, the regulation stood essentially as it had been drafted and was accompanied by an explanatory report that raked over the cigarette manufacturers far less tenderly than the Surgeon General’s advisory committee had. Included was a pointed discussion of cigarette advertising themes and appeals “which tend to allay anxiety about the dangers of smoking.” Typical was the ballyhooing of filters, which, despite earlier FTC decrees accepted by the industry, were being promoted as health devices. As one example, the report cited ads for Winston that spoke of its “pure white modern filter,” words which, while claiming nothing explicit, “could imply to many people … that [it] is sufficiently ‘modern’ to cope with any dangerous properties in cigarette smoke.” Similarly, the boast that Parliament “puts the filter where it does you the most good” could be interpreted as a thinly veiled health claim. Overall, said the FTC indictment, it was the industry’s practice “to transport the smoker to a world so well insulated from any suggestion of health hazards that the effect is to assure the smoker that smoking is safe.” This form of deception was compounded by the magnitude and pervasiveness of cigarette advertising, so that “virtually all Americans, including most children, are continually exposed to the portrayal of smoking as desirable and to reassurances respecting the safety and healthfulness of cigarette smoking.” In its most excoriating language, the FTC added:
To allay anxiety on the … hazards of smoking, the cigarette manufacturers have made no effort whatever, and have spent nothing, to inform the consuming public of the mounting and now overwhelming evidence that cigarette smoking is habit-forming, hazardous to health, and once begun, most difficult
to stop. On the contrary, the cigarette manufacturers and the Tobacco Institute have never acknowledged, and have repeatedly and forcefully denied, that smoking has been shown to be a substantial health hazard.
Finally, the FTC dismissed the industry’s “slippery slope” defense by effectively distinguishing cigarettes from other hazardous products. Alcohol and rich foods could safely be consumed in moderation, it noted, whereas “[t]here is no known moderate or safe level of cigarette consumption.” The sale of liquor, moreover, was “subject to an elaborate network of public and private regulation that has no parallel in the cigarette industry;” commercials for hard liquor were no longer broadcast, its print ads avoided the themes of romance, contentment, and sociability, and all liquor products, unlike cigarettes, were labeled to disclose alcoholic content. As for automobiles, which killed and maimed tens of thousands annually, society had taken many measures to protect consumers from injury through such regulations as driver licensing, car inspections, speed limits, and restrictions on driving by minors. There were no comparable strictures governing cigarettes.
The final FTC rule as issued did not specify the precise language on the health label—only substantive disclosure in a form of the industry’s devising. Elman was uncomfortable with the First Amendment implications of mandated wording. But as for the rest of the FTC cigarette regulation, he recalled, “My hope was that the industry would immediately take us to court,” anticipating that the Supreme Court would uphold it as it had various SEC and FCC rule-making measures without any explicit congressional directive.
The warning labels were to appear on packs and in ads at the beginning of 1965, according to the FTC regulation, but well before that date, the industry flexed its biceps, and Rand Dixon blinked. Word reached him that the President wanted the commission to befriend and not harass the captains of the nation’s industries, tobacco included. Representative Oren Harris, the Arkansas Democrat who chaired the House Commerce Committee, formally asked the FTC to postpone the effective date of its rule on cigarettes until the middle of the following year, so that the new Congress would have the chance to consider the matter. Unspoken in this request by Harris was the threat of reprisals against the commission if it persisted in an action that not a few in Congress believed was an overreach by the long-docile agency. A congressionally mandated health warning, furthermore, was far more likely to withstand judicial review, Dixon was told, than one imposed by the FTC. Besides, it would take effect immediately upon its passage and not be tied up in court for years, as the industry threatened if the FTC failed to yield to Congress.
With such powerful arguments marshaled against him, the FTC chairman retreated. The commission had made its point, in thunderous words, but it was,
in the final analysis, a creature of Congress. Dixon’s shining hour had come and gone.
IV
ON
the morning the Surgeon General’s report was made public, a group of Philip Morris executives and lawyers trooped a block and a half from their offices to Grand Central Terminal, where the Columbia Broadcasting System had arranged a closed-circuit telecast of Luther Terry’s press conference in Washington for the network’s major advertisers. Among those in the Philip Morris party was outside counsel Alexander Holtzman, who remembered, ‘The mood as we walked over was serious but not grave—we knew it was going to be a watershed event and that things might never be the same again.” As the Surgeon General read aloud from the report, Holtzman said, “I had a sort of sinking feeling”—more of bafflement than anger over how the panel could have reached such conclusions.