Authors: Richard Kluger
What tobacco industry lawyers strongly suspected by mid-1964, however, was that a federally mandated warning on a hazardous product already commonly known to be one was unlikely to hurt its sales and likely to help shield its makers from liability claims. Thus, cigarette makers were reluctantly ready to accept a soft warning label—one without the words “death” or “cancer,” as one of the FTC’s versions would have read as originally proposed—and, indeed,
wanted one, but for them to have conceded as much early in the game would have been poor tactics. Instead, industry spokesmen continued to mutter against the fairness of being asked to disparage their own product and to claim that the warning label was unnecessary, all the while using their apparent intransigence as a bargaining chip to extract other forms of legislated protection. Such a strategy was confirmed by Abe Fortas at his June 1964 meeting at the Justice Department on the Cigarette Advertising Code when he remarked, “The companies want legislation. For your own knowledge only, we hope legislation will come through this session. A requirement that packages be labeled would be helpful in civil litigation.” And so the sly tobacco lobbyist Earle Clements said to the industry’s lawyers and executives, referring to the health warning label: “Let’s us write it.”
VII
BESIDES
their own economic might, the tobacco manufacturers had one other large advantage as Congress addressed the health question in 1965—there was no coherent force ranged against them.
True, cigarette sales had slumped in 1964 following the release of the Surgeon General’s report, but only by 2 percent or so, and most of the loss was recorded during the first few months of the year, when the findings were fresh in the public mind. The authoritative medical indictment of smoking had plainly not set off a national panic among smokers. To the extent that the health risk posed by cigarettes was perceived as a serious concern, it was largely taken to be a private and personal matter, up to each smoker to decide upon; the communal conscience had not been aroused in a way demanding legislative remedies against a rascally industry. Indeed, in the months and years immediately following, the issue of tobacco and health had a relatively low standing on the national agenda as Americans underwent a social upheaval in the 1960s. If smoking was a peril during the civil rights and Vietnam ferment, it was not tobacco that raised concern but the rebellious younger generation’s widespread use of marijuana and other illicit and far more fearsome mind-altering substances, taken not so much to reduce the stresses of life, as cigarettes were believed to do by most smokers, but as a euphoric escape from them.
In this age of domestic turbulence, there was no discrete “health lobby” with its champions in Congress—only a far-flung and unorganizable assortment of individual Americans worried about the cigarette habit. And there was no leadership on the issue from Lyndon Johnson’s administration, engaged in the fight for social justice and its war on poverty. “We were in monumental battles,” recalled Joseph A. Califano, Jr., then a key (and heavy-smoking)
White House aide. “Our focus in the South was on desegregation—we were making enough enemies as it was,” and so to have pushed for regulation of the tobacco industry would likely have compounded the problems besetting the administration. The President’s 1964 Republican opponent, Barry Goldwater, was still more indifferent to the smoking issue. He said a health warning label on cigarette packs “would interfere with freedom”—whose and how, he did not explain. Nowhere in the federal government was there an official prepared to lead a fight against the tobacco industry. Secretary of Agriculture Orville Freeman opposed the health warnings, because they might have an adverse effect on tobacco crop sales. At HEW, only Surgeon General Terry was allowed to come before Congress and speak in favor of the health warnings. At the Public Health Service, no bold champion emerged to take on the cigarette peril.
The closest approximation to a national voice urging action on the issue was the Interagency Council on Smoking and Health, an ad hoc group formed in mid-1964 by public and private organizations of professional health and education workers, among them the big voluntaries like the American Cancer Society and the American Heart Association, occupational and industrial groups like the American Dental Association and the American Pharmaceutical Association, government agencies like the U.S. Children’s Bureau and the Public Health Service. This leviathan, however, was all bulk and no brain or muscle. It had neither money nor power to challenge the tobacco interests, and its chairman, former advertising executive Emerson Foote, a convert to the embryonic anticigarette cause, was more well-meaning than effectual.
Barron’s
, the pro-business financial weekly, used the first anniversary of the Surgeon General’s report as the occasion to charge that Surgeon General Terry had “made a mockery of the scientific method” and to belittle Foote as a mere ex-huckster and turncoat fanatic.
The only national organization effectively involved in combating the smoking peril, the American Cancer Society, pointedly declined to invest its high standing in the Interagency Council. Lane W. Adams, for twenty-three years the executive director of the ACS, conceded in retrospect that the cancer society was not then prepared to subordinate its leadership role. “Having pioneered in the area [of smoking and health] and having the resources to pursue the matter, we thought we’d get more done moving independently,” Adams recounted. It was “too early” to work cooperatively with so many other groups with different missions and priorities. As a result, longtime ACS public-relations director Irving Rimer noted, “Nobody wanted to cede [the Interagency Council] any power … . It didn’t do much of anything except publish a newsletter—it was window-dressing.”
The one powerful group that might have been expected to weigh in heavily to counter the tobacco industry was the American Medical Association. But
the AMA had been standing in angry vigil since the early 1940s against a proposal by New Deal congressmen to extend the Social Security program to cover government-financed medical and hospital care for the elderly under an approved fee schedule for doctors’ services. This plan, now embraced by the Johnson administration, was to be voted on shortly by Congress, much to the displeasure of the AMA, which viewed so-called Medicare as a form of socialized medicine and a menace to its livelihood. Anxious for the anti-Medicare votes of tobacco-state lawmakers, the AMA announced soon after the release of the Surgeon General’s report that, as the first undertaking of its newly established Education and Research Foundation (ERF), the medical association had accepted a $10 million, no-strings grant from the tobacco industry for a five-year study of smoking.
This grand gesture served the cigarette makers by suggesting that in the AMA’s minds the question of the relationship between cigarettes and disease had not been definitely answered by the Surgeon General’s report; indeed, three members of the advisory committee were enticed to serve on the AMA-ERF’s grant-dispensing panel, lending credence to the effort. For its investment the industry received an almost immediate dividend in the form of a letter from Dr. F. J. L. Blassingame, the AMA’s executive vice president, to the FTC’s division of trade regulation rules, stating:
[w]ith respect to cigarettes, cautionary labeling cannot be anticipated to serve the public interest with any particular degree of success. The health hazards of excessive smoking have been well-publicized for more than ten years and are common knowledge … .
Besides, Blassingame claimed, 72 million Americans smoked cigarettes in support of a major industry and contributed important tax dollars to various levels of government, so that the FTC’s proposed step ought to be dropped in favor of action, if any were in order, by Congress. A handful of congressional idealists denounced the AMA’s deal with the cigarette makers, but on Capitol Hill as elsewhere, few were aroused by the smoking issue.
Accordingly, a highly pro-industry labeling bill sailed through the House Commerce Committee, eleven of whose thirty-three members were from the South and four others from border states. The bill had an announced dual purpose of ensuring that “the public may be adequately informed” of the risks associated with tobacco use by requiring the warning label “Caution. Cigarette Smoking May Be Hazardous to Your Health” on every pack—but
not
in any advertising—and that the national economy would not be “impeded by diverse, nonuniform, and conflicting cigarette labeling and advertising regulations with respect to any relationship between smoking and health.” To lock in the latter goal, the House bill permanently denied to all federal and state agencies,
the FTC included, the power to act in this area. Thus, in mandating the softest possible language on the warning label as the only form permissible nationwide, the House bill enhanced the tobacco companies’ ability to fend off future product liability suits by strengthening their assumption-of-risk defense yet prevented the sovereign states from acting more forcefully in the face of a perceived major health peril to their citizens. In granting cigarettes this unaccountably privileged status, the House measure flew further in the face of logic by requiring the warning on the pack when the “more realistic and responsible approach,” as California Representative John Moss, the one vocal antismoking spokesman in the House, put it, would have been to warn in cigarette advertising “before the product is purchased.”
The story was different in the United States Senate, where the eighteen members of the powerful Commerce Committee were closely divided on the cigarette labeling proposal. Further complicating the picture was the recent arrival on the committee of the tobacco industry’s chief (and only) Senate tormentor, Oregon’s Maurine Neuberger. At the outset of the term she had put into the legislative hopper a labeling law that essentially confirmed the FTC’s regulatory rule. If the Senate’s bill was to prove as much of a valentine to the tobacco industry as the House version, Neuberger indicated she might oppose it as worse than no bill at all.
The fate of any Senate bill rested in the hands of the Commerce Committee’s entrenched chairman, Warren Magnuson of Washington State. In his twentieth year in the Senate by 1965, Magnuson remained little known to the public but was perhaps the best liked, if not most admired, and surely one of the most powerful figures in the upper chamber. Gruff but kindly, with dark-rimmed glasses prone to slip down his prominent ruddy nose and an unlit cigar habitually clenched in his teeth, he was everyone’s Dutch uncle and let even strangers call him “Maggie” to his face. A diffident public speaker given to gaucheries like calling France’s stuffy president “Poopidoo,” in private Magnuson was a prodigious joke-teller, Scotch drinker, cardplayer, and womanizing widower. He devotedly serviced the commercial interests of the timber, canning, and transportation industries vital to his Northwest base, and as he gained seniority in the Senate, he saw to it that his home state, with but 2 percent of the U.S. population, reaped 15 percent of the public-works funds allocated by Congress. Above all, “Maggie” was a horse-trading pragmatist and a pawn of special interests, whose name was attached to few pieces of significant legislation.
In 1962, Magnuson had narrowly held on to his Senate seat in a campaign against a political novice. A remarkable intellectual and moral metamorphosis followed, as the frightened “Maggie” transformed his Commerce Committee staff, long the darlings of lobbyists who were used to writing the regulatory laws for their own industries, into a team of crack young legal eagles bent on
reforming economic abuses and elevating Magnuson’s stature. Suddenly, there were Magnuson and his boys floor-managing the highly sensitive public-accommodations section of the 1964 Civil Rights Act, framing the fair labeling and packaging bills, and for the better part of the next decade pushing public-spirited laws through Congress. Remarked one veteran Washington public-relations man about Magnuson’s young staffers, “They turned that cigar-smoking, wenching old man into Mr. Consumer.” Some said he was too pliable to the wishes of his power-hungry young handlers, but insiders felt he knew precisely how long a leash to give his aides and could detect far better than they the feints and bluffs of other Senate heavyweights and their staffers.
Prominent among Magnuson’s new reform-minded assistants was Michael Pertschuk, a brainy and amiable lawyer who had come to America at the age of five from London, where his Russian-born father had been a successful furrier. Raised on New York’s Long Island, Pertschuk earned his college and law degrees at Yale, clerked for a civil-liberties-minded federal judge in Oregon, and, on his recommendation, joined the Washington legislative staff of that state’s liberal senator, Maurine Neuberger, providing much of the energy for her anti-smoking efforts and the prose for her lucid, muckraking book,
Smoke Screen
. When Neuberger gained a seat on the Commerce Committee, Pertschuk was made a staff lawyer and stayed thirteen years, rising to chief counsel. Blessed with acutely tuned political antennae, adroitness at exchanging confidences, and an unstudied puckishness that softened his high purposefulness, Pertschuk served Magnuson so well that he was delegated great authority in drafting legislation and thus became one of the most powerful appointees on Capitol Hill.
But as a novice, charged with riding herd on what was to become known as the Federal Cigarette Labeling and Advertising Act, Pertschuk was not entirely unwitting clay in the hands of Earle Clements. Tobacco’s chief lobbyist, with his peerless political connections, at first seemed to Magnuson’s young aide to be the embodiment of evil—until Clements turned his flattering attention to Pertschuk, took him to lunch, and charmed him with political war stories and his exploits in trying to bring civil rights to Kentucky. At one point, referring wryly to the medical evidence and the alleged mortality toll of smoking, Clements commented confidentially, “You know, Pertschuk, when you’re on the side of the angels, it’s easier to stretch the truth.”