Authors: Richard Kluger
Such were the dismissive public remarks, lacking in candor and unreflective of the internal dissension on the subject, by perhaps the most enlightened management in the cigarette industry.
V
THE
cigarette makers had a full-scale crisis on their hands as the new Congress, perhaps the most liberal in history as a result of Lyndon Johnson’s landslide victory the previous November, convened in January 1965. Without congressional intervention, the FTC regulation mandating a health warning label on all cigarette packs and in all print advertisements and broadcast commercials would go into effect at midyear unless the industry moved against the requirement in the courts, where a satisfactory outcome was far from certain.
Some in the tobacco business wanted to head for the bunkers, shouting defiantly that their product remained innocent until proven guilty and was much loved by the public despite the woeful chorus of criticism on health grounds. But Earle Clements, the industry’s wily chief lobbyist, had convinced its leadership that the scientific case was compelling enough that if the industry did
not give ground voluntarily, Congress would have no choice but to impose harsh measures on the tobacco interests. What was wanted, Clements persuaded them, was a congressional bill that had at least the appearance of a health regulation yet effectively dismantled the FTC’s pending version and would prevent, through the preemptive power of federal legislation, a multiplicity of warning labels from being slapped on cigarette packs by state and local governments, forcing the manufacturers to absorb the cost of doing business in a fragmented marketplace.
Many in the tobacco camp had believed that the most dire threat to their continued prosperity was the part of the FTC regulation requiring a health warning in all cigarette advertising. A warning repeated out loud countless times a day on television and radio and plastered on every pretty print ad like a figurative Jolly Roger might well have a chastening effect on would-be smokers. In an effort to head off the imposition of such a galling regimen, the industry had with some fanfare announced the previous spring, even as the FTC regulation was being debated, the establishment of formal machinery to police its own excesses in huckstering. Called the Cigarette Advertising Code, to take effect at the beginning of 1965, the program seemed to be a serious response to the industry’s critics. All cigarette ads would now have to be approved by an all-powerful administrator, whom industry wags soon tagged “the tar czar,” with the unappealable power to impose a fine of $100,000 for every infraction.
The main purpose of the new code was to blunt the charge that the industry was massively seducing minors to take up smoking at an age when they were indifferent to the possible ultimate consequences of the step. The code prohibited advertising in publications like comic books, school newspapers, and college athletic programs and on television and radio programs “directed primarily to persons” under twenty-one. It further forbade the distribution of free cigarette samples to the underaged, the use of models in ads or commercials who were or appeared to be under twenty-five years old, and testimonials by athletes or entertainers—categories thought to hold a special appeal for youngsters. Perhaps the most telling provision in the code was the one against any representation “that smoking is essential to social prominence, distinction, success or sexual attraction,” but permitting pretty, robust models, or drawings of such people, to be used provided “there is no suggestion that their attractive appearance or good health is due to cigarette smoking.” And no health claim could be made unless it was based on “adequate, relevant and valid scientific data” as determined by the code administrator.
The loopholes in the industry code soon became apparent. Millions of younger children and teenagers watched or heard programs sponsored by cigarette companies, like “The Beverly Hillbillies” and the broadcast of baseball and football games, and read daily newspapers, fan and fashion magazines, and other publications jammed with cigarette ads—and none of these was “directed
primarily” at those under twenty-one. And what a Solomonic mind would be needed to weigh artful copy and glowing countenances implying that smoking Brand X was contributory to, or at least compatible with, success in love, business, or scuba diving. Nor was it necessary to suggest that physical attractiveness and well-being were “due to cigarette smoking”—just associating them within the confines of the same advertisement served to undercut reports of the debilitating effects of smoking. And how could even conscientious distributors of sample cigarettes be expected to interrupt their efforts on thronged sidewalks to demand proof of age from would-be recipients?
Because the efficacy of the new code would obviously depend on the zeal with which the administrator operated, the industry gained early credibility by enlisting as its advertising czar pack-a-day-smoker Robert B. Meyner, the retired, well-regarded two-term Democratic governor of New Jersey. Meanwhile, the mere announcement of the code prevented adoption of a similar measure by the National Association of Broadcasters, who, in view of the estimated $135 million in annual billings from cigarette advertising, were just as happy to let the tobacco industry try to police itself. To persuade the FTC of its good intentions before the commission decided whether to include a health warning requirement in cigarette advertising as well as on the pack in its pending regulation and to convince the Justice Department that the industry’s own voluntary ad code should not be discouraged on antitrust grounds, Abe Fortas headed a delegation of tobacco lawyers at a joint meeting with FTC and Justice officials in early June 1964. Fortas assured the government group that the code was “an honest job, there is nothing but what appears.” Washington’s most powerful private legal practitioner went on, “We can’t expect companies acting individually to regulate their own advertising—one overstates, then another. We must have pre-scrutiny with muscle. The only way is to set up this private system.” The Justice Department raised no objection to the self-policing scheme. The FTC, fed up with past industry circumvention of its guidelines, declined to set aside its requirement for warnings in cigarette ads.
VI
BEYOND
the unwelcome prospect of government-mandated warning labels was the tobacco industry’s heightened dread that the Surgeon General’s report would provide decisive authority to sway the outcome of product liability suits against the cigarette makers. Five such suits had already gone to trial and were proving difficult to defend. But they had to be defended, and fiercely, because the industry was convinced that even a single defeat would open the floodgates of litigation to every smoker who chose to blame his physical afflictions on his favorite brand of cigarette. Some of the first wave of liability
suits, involving multiple trials and appeals, consumed a dozen years before the industry at last prevailed—or exhausted the energies and wallets of plaintiffs who dropped their claims.
In a front-page article the day before the Surgeon General’s report was issued,
The Wall Street Journal
speculated on the possible legal consequences of the expected government conclusion that cigarettes were indeed a deadly product for some smokers. Despite the industry’s shunning of health warning labels, the
Journal
observed, some experts believed that such a step would notably reduce the companies’ liability exposure because no potential plaintiff could thereafter claim that he or she had not been forewarned.
Intensifying the tobacco companies’ worries over costly, endless litigation was the timing of an effort within the legal profession to rethink the fairness of product liability law and redress the balance that had long seemed to favor sellers—not infrequently big, rich, faceless, and callous corporations—over individual consumers ill equipped to combat them. The prevailing doctrine of
caveat emptor
(let the buyer beware) had been softened by the evolution of social justice in the twentieth century, but its essence was still detectable in the outcome of the liability suits that had been brought against the cigarette makers based on two kinds of claims. The first was for negligence in failing to warn buyers of the danger, known to the sellers, from the use of the product. The other was for breach of warranty, whereby the manufacturers assured buyers either explicitly or implicitly that their cigarettes were safe to smoke; a plaintiff claiming otherwise was obliged to prove that the illness suffered was caused by the product. The industry was successfully rebuffing such claims by arguing that (1) no conclusive proof existed that smoking cigarettes caused disease, but (2) even if it did, there was no way the manufacturers could have been aware of it before the plaintiffs contracted their illness or were discovered to be sick. And (3) since the use of tobacco had long been alleged to be a health hazard regardless of the industry’s expressed doubts about the charges, smokers were guilty of contributory negligence and could not shift to the cigarette makers the responsibility for their informed and freely taken lifestyle choices, any more than an alcoholic who overindulged in liquor or a motorist who drove too fast could blame the manufacturers of those products for the resulting harm.
Even in the case thus far most favorable to a plaintiff—
Pritchard
v.
Liggett & Myers
—the legal hurdles confronting the victims of smoking had proven towering. Claiming he had long smoked while relying on Liggett’s negligently made statements that its cigarettes were no danger to his health (as in the company’s 1952 ad headlined, “Play Safe / Smoke Chesterfield,” statements such as “Nose, Throat, and Accessory Organs Not Adversely Affected by Smoking Chesterfields,” and broadcasting entertainer Arthur Godfrey’s reassurances along these same lines), plaintiff Pritchard and his surviving family
endured two trials and two reversals of the verdict in their favor by a federal appellate court. In the second trial the jury had found that smoking was responsible for the claimant’s illness but that Pritchard was not shown to have relied on any express warranty by the manufacturer and, at any rate, he had voluntarily assumed the risk. In ordering still a third trial, the appeals court held that under the laws of Pennsylvania, where Pritchard lived, he did not have to show reliance on such warranties—only that they were there—but, more to the point, how could the plaintiff have been found to assume a risk that the manufacturer explicitly advertised did not exist? The Pritchards nevertheless elected, after more than a decade of litigation, not to go on.
It was precisely to avoid such endless wrangling that judges, juries, and state legislatures were at this time formulating a new legal doctrine, most commonly referred to as strict product liability. Under this theory of action, a plaintiff was not required to dwell on the defendant company’s actions or justify his or her own; what mattered was whether the product involved was “unreasonably dangerous,” regardless of the manufacturer’s awareness of that condition. The business community strongly objected to the doctrine of strict liability on the ground that it turned manufacturers into absolute guarantors of their customers’ health and safety.
Such concerns grew out of the legal profession’s ongoing effort to clarify and codify often conflicting common-law adjudications by the courts. The American Law Institute (ALI), frequently cited by courts and scholars around the nation as an arbiter in settling contentious legal questions, had examined the state of liability law governing wrongful civil acts and in 1939 issued its authoritative
Restatement of the Law of Torts
. In 1961, the ALI undertook a series of philosophical debates as part of a revision of the earlier work, and in 1964, just as the FTC and Congress were exploring the need for cigarette warning labels, produced its
Second Restatement
of American tort law, this time dealing with the emerging and highly controversial doctrine of strict liability. As reported by William Prosser, who had gained renown as a California law professor and author of the leading treatise on torts, the new
Restatement
as drafted described the special or strict liability of one “who sells any product in a defective condition unreasonably dangerous.” Did that apply to cigarettes in their normal manufactured condition? How were they “defective” unless they were somehow adulterated by additives or unintended foreign substances? And who could say whether a cigarette was “unreasonably dangerous”? In deliberations by the ALI Council in 1962, commentary refining the limits of liability exposure and adopted in the final version of the
Restatement
would be widely invoked by judges and law schools over the ensuing three decades. In “Comment i” of Section 402A, an “unreasonably dangerous” product was defined as “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics.” That seemed to say that if most people knew a product was dangerous, it could not be deemed “unreasonably so”—an impression strengthened by Comment i’s further remark: “Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.” Comment i added that a dangerous product might not be “unreasonably” so if consumers had received a proper warning of its condition. Prosser himself wrote in his 1971
Handbook on Torts
that when danger from the use of a product like whiskey was “generally known,” it could not be regarded as “unreasonably unsafe merely because it is capable of doing harm,” and he added that “it is quite possible that cigarettes are to be placed in this category, even though they may cause lung cancer.”
But such a line of thought by some of the most learned theorists in the profession was tantamount to rewarding a highly hazardous product for its notorious condition by exempting its producer from any resulting damage claims on the ground that most people were aware of its potentially lethal nature.
Caveat emptor
, indeed. Was that equitable, though? The implication seemed to be that so long as the product was legal, it did not matter how lethal it was, provided the community understood the danger. Why, however, should manufacturers of egregiously hazardous products be allowed by the judicial branch of government to evade liability claims merely because the legislative branch had declined to outlaw those products? Under the American common-law system, judges and juries are lawmakers as much as legislators are, free to remedy civil wrongs by awarding reparations to victims where the situation was not clearly covered or anticipated by statute. And what statute could determine whether a given brand of cigarettes might be dangerous to an extent beyond what “would be contemplated by the ordinary consumer who purchases it”? And if the producer warned of the danger, was the warning adequate to define the peril? And could even an adequate warning be undermined by the conduct of the producer—for example, through public statements denying or minimizing the degree of danger attributed to the product by others and through advertising that presented the product in an entirely attractive context without the least hint of the alleged danger? All of these considerations, which judges and juries might fairly take into account in adjudicating a liability claim, were left unresolved by the
Restatement
.