Authors: Richard Kluger
Eager to be taken for a political realist and no posturing idealist, anxious to get Magnuson’s name affixed as sponsor of a pro-health measure even if it had more gravy than meat in it, Pertschuk gave ground to Clements and his cadre of industry lawyers. The cautionary language in the Magnuson bill was even softer than in the House version: “Warning: Habitual Cigarette Smoking May Be Hazardous to Your Health”—“habitual” was a close cousin to “excessive,” a vague term avoided in the medical lexicon since no health investigators could authoritatively define the threshold of risk from smoking. While
Pertschuk yielded on the critical congressional power to preempt any federal or state requirement for a health warning and omitted a warning requirement in cigarette advertising, Magnuson’s bill did call for the listing of tar and nicotine strengths on each package. By contrast, Maurine Neuberger’s bill had kept faith with the public-health community by requiring a warning label in ads as well as on packs that said smoking “is dangerous,” not merely “may be hazardous,” and did not bar further regulatory steps by the federal and state governments. Right after formally submitting Magnuson’s version, Pertschuk went out to a dinner party to celebrate his thirty-second birthday and confessed his uneasiness to a close friend, Stanley Cohen, the chief capital reporter for
Advertising Age
, who, upon hearing the details, called it a “shocking” bill. Pertschuk went to Magnuson’s top Commerce Committee counsel the next day and got the preemptive concession stripped from the bill as submitted.
At the Senate Commerce Committee hearings on the labeling bill, though, the public-health community was passive while the tobacco industry was permitted by Magnuson to parade as witnesses thirty-eight scientists, most paid for their services by the cigarette makers and some recipients of Tobacco Industry Research Committee grants, who did their best to cast doubt on the findings of the Surgeon General’s committee. By contrast, the antitobacco forces’ chief spokesman, Emerson Foote of the Interagency Council on Smoking and Health, expressed his doubts about the value of warning labels on cigarette packages instead of in advertising. “I don’t think any real gain will be made on the health front,” said Foote, “until you make the advertising self-defeating.” This remark was pounced on by the cigarette companies’ sole spokesman at the hearings, Reynolds’s courtly chairman, Bowman Gray, Jr., who chainsmoked his way through several hours of masterful testimony. With what seemed more like sorrow than bitterness, Gray denied the need for any regulatory legislation and assured the Senate panel that his company and its competitors were “profoundly conscious” of the health allegations against them and had committed millions to medical research in view of “the lack of definitive clinical and laboratory scientific evidence on the relationship between smoking and health.”
As the Senate version of the bill reached the markup stage, the seemingly manipulable Pertschuk, in behalf of his affable boss, accepted the House version’s wording for the warning label, which Clements said the industry would buy, provided there was no further mention of warning labels in cigarette advertising. Broadcasters and magazine publishers pushed the same point. Pressure by the industry kept rising as the vote neared. Pertschuk would later remember seeing a pink telephone-message slip on Magnuson’s desk saying, “Abe Fortas called—he wants you to vote for the House version of the cigarette labeling bill”—an unsubtle implication that the attorney was speaking for Magnuson’s erstwhile congressional colleague, President Johnson. Not surprisingly,
the inclusion of tar and nicotine content on cigarette packs was stripped from the Magnuson bill, in part because the industry’s ad code administrator, Robert Meyner, told the Commerce Committee, “No one has given me any testimony that removing tar and nicotine makes the cigarette safer.” Regarding the size and location of the warning labels, which the House bill directed to appear on one side of the pack, the Magnuson bill insisted only that the warning be in “conspicuous and legible type” somewhere on the pack.
But with regard to one vital ingredient in the House measure Magnuson drew the line—that no statement other than the warning required by the act “shall be required” on any cigarette pack nor would any other “relating to smoking and health … be required in the advertising of any cigarettes” labeled in conformity with the act. That would have meant a permanent ban on such measures by the FTC, any other federal agency, and all state and local governments. “Maggie” said that a four-year ban was as far as he would go, and meanwhile everyone could watch what effects, if any, the warning labels on the packs and the industry’s self-imposed ad code would have.
Left up in the air was the question, growing more important by the year with the proliferation of product liability suits, of precisely what Congress meant in the labeling bill when it said no other health warnings “shall be required”. Required by whom and for what? Normally the adequacy of a warning by the manufacturer and the purchaser’s subsequent assumption of risk of the disclosed health hazard would be left to a jury to determine. But the congressional preemptive language in the 1965 labeling act could be interpreted to mean that no smoker afflicted after the warning label was put on the packs could bring a liability suit for tort under the common-law provisions or statutes of his or her state. “It was not brought to my attention in that way,” Philip Morris President Joseph Cullman would later recall. The bill, Cullman said, was intended only to avoid “insurmountable logistical problems” that would have arisen if the federal warning label had not been the only one permitted. Lorillard’s chief executive at that time, Morgan Cramer III, concurred; the labeling law, he said, “was never intended to protect us from lawsuits,” though it was no secret that it might help the industry defend them, once filed.
But neither Cullman nor Cramer was a lawyer, and their hired counselors were far more attentive to the nuances of the preemption language and how far it extended the industry’s protection. Lorillard’s Washington attorney, Robert Wald, recalled that while the labeling law did not explicitly preclude state liability suits from being filed, it came close to providing the industry with an ironclad defense: “It got us assumption of risk—the warning label would do that. This was the [industry’s] major motivation in accepting the legislation,” and even as the tobacco spokesmen kept saying for the record that they opposed the warning label, “privately we desperately needed it.” And privately some in the tobacco legal corps foresaw the day when judges would grant motions
to throw out liability suits against the industry under state tort common law because all plaintiffs had been adequately forewarned under the preemptive federal labeling statute. “You bet,” remarked Philip Morris attorney Alexander Holtzman; who was on the scene when the 1965 law was crafted, “but we didn’t do much crowing about it.” If recovery under common-law actions had been allowable, other industry lawyers added, Congress would have said so.
Precisely the opposite reading, however, was also possible: if Congress had intended to remove the right of smokers to claim that they had been damaged by an unreasonably dangerous product, warning or no warning, the lawmakers would have said so. “It would be like pickling fuzz from the universe to find in the labeling act an intention in Congress to preempt the states from enforcing product liability common law,” said Pertschuk. “There was no such intention expressed in any of the debates at that time. The preemption was designed very simply to prevent the states from requiring more than Congress did in the interest of [labeling] uniformity.” Even if Congress had not so intended, though, its language was sufficiently ambiguous so that twenty-six years would pass before the U.S. Supreme Court settled the question, more or less.
The 1965 labeling law was widely seen at the time of its passage as “an unabashed act to protect private industry from government regulation,” as Elizabeth Drew wrote in her probing analysis of the law’s odyssey, “The Quiet Victory of the Cigarette Lobby,” in the September 1965
Atlantic Monthly
. Over at the FTC, the agency’s most spirited commissioner, Philip Elman, thought the new law “one of the dirtiest pieces of legislation ever.” Senator Frank Moss, Democrat of Utah, remarked that in exchange for a few tepid cautionary words on the side of the pack, “Congress exempted the cigarette industry from the normal regulatory process.” Michael Pertschuk would later concede that “it was quite a cynical bill.”
Yet given the times and the realities of political power, a tougher law would not likely have been enacted. “That bill was in the interests of mankind,” remarked Edward DeHart, the Hill & Knowlton publicist perhaps closest to the lawmaking process. And arguably, the substance of the labeling law mattered less than the fact of it: for the first time, the federal government had acted against the perils of cigarette smoking. The product now would bear the stigma of being officially labeled a hazard, and the lethal risk smokers ran had passed from the realm of folklore into state notification of their folly.
All but lost sight of in the bickering over the fine print in the labeling law was a provision, thought to be harmless by the industry lawyers, that the FTC and the HEW Department, through the Surgeon General’s office, would report annually to Congress on cigarette advertising and the relationship of smoking to health. That sop to the two agencies would in time help turn smoking into a pressing public issue.
VIII
EVEN
as medical and political forces were conspiring to narrow the appeal of smoking, one cigarette manufacturer was making a major marketing decision that would dramatically alter the future course and control of the industry.
Philip Morris, under the steadying hand of Parker McComas and the whip hand of Joe Cullman, had earned good grades for enlightened corporate leadership. The first cigarette maker to diversify seriously, PM in the early 1960s was working to expand the appeal of its non-tobacco consumer products by, for example, putting its ASR shaving products line early into the stainless steel razor blade market and adding flavors to its Clark chewing gum business. As the first American tobacco company to go hard after foreign sales, it had gotten a toehold in Europe in 1963 by buying up a strong Swiss manufacturer that would shortly become its base for a worldwide drive. And in defending tobacco against the growing threat of federal regulation, PM was the clear industry leader.
But Philip Morris was still the smallest of the six major cigarette companies in sales. Its leading brand, Marlboro, after a strong send-off, was in a rut. Winston’s volume was nearly triple the Marlboro figure. To stir a little life into sales, singer Julie London in her smoky, come-hither voice began crooning, “Where there’s a man, there’s a Marlboro,” as if summoning every red-blooded fellow within hearing range to share one with her. But neither she nor comedian Jackie Gleason—in his prime and exclaiming after a deep drag on a Marlboro, “Ah, how sweet it is!”—could get the brand moving. The rest of the Philip Morris stable was doing no better.
The Marlboro slump had been aggravated at the outset of the ’Sixties by a smear campaign that its field force traced to slanders spread by rival salesmen. The brand was said to be so deadly that the government had banned it from military bases and VA hospitals, and some states were reportedly quarantining Marlboro on health grounds. Rumormongers said that two little red coding dots on the Marlboro tax stamp signified that the brand had been banned in certain regions. The crude calumny hurt sales. Heavy sampling and promotional contests were launched to combat the slippage, followed by an ad campaign in 1961 to blunt the charges of any kind of regional taboo. “Wherever you travel this summer,” ran the copy, “from the Klondike to Key West … in any state … in every state you’re in Marlboro Country.”
That phrase, “Marlboro Country,” lodged in the collective consciousness of the Leo Burnett ad agency team as it struggled over the next several years to break Marlboro out of its lethargic numbers. The Burnett people would fly into
New York from Chicago almost every Tuesday night for two brainstorming days and fun-filled nights with Philip Morris marketers, most notably Jack Landry, the irreverent, hard-drinking Marlboro brand manager, who recalled that many blue-sky ad schemes got scribbled down on cocktail napkins, only to be discarded as hopeless by dawn’s sobering light. But the Burnett-PM ad team could not ignore results from the advertising industry’s regular monitoring of the effectiveness of individual ads and larger campaigns: Of all the two-fisted incarnations they had given the Marlboro Man since the brand’s launch, one stood out by far. “Every time we ran a cowboy,” recounted Burnett account executive John Benson, “there’d be a blip in the research, saying, ‘Hey, people like seeing cowboys.’” Landry especially, having grown up in Saratoga Springs, with horses on the brain, noted that none of the vocations and avocations depicted scored better than ranching: “We had pretty well determined that, if we could make it work, what we wanted to go with was a campaign that focused strictly on the cowboys.”
Since Marlboro sold best in big cities, the cowboy campaign began as a city-Western hybrid. Cowpokes were incongruously posed against famous city backdrops—Wall Street and Yankee Stadium in New York, Philadelphia’s Liberty Bell, or the Hollywood Bowl—and the image bore in large, stenciled lettering the words “Marlboro Country.” The voice-over on the television version intoned: “From the canyons of New York to the canyons of Colorado … a man’s world of flavor in this cigarette.” When sales failed to respond, the Marlboro ad team devoted months trying to figure out how to take the final step, putting the cowboy in his natural environment without making him seem irrelevant to city smokers. Production crews shot fresh TV footage of galloping cowboys against a rugged Western landscape and gave an off-camera narrator such full-throated lines as, “This is my country—big, open—makes a man feel ten feet tall” and “This kind of place takes a special breed of man,” and his choice of cigarette was “like this country—it has spirit!” Even so, as Landry remembered, “it still didn’t come off—there was an ingredient missing.”