Authors: Richard Kluger
Yet in many cases Meyner’s reading of health claims into ads was almost laughably broad. Scenes that showed a cigarette turning a smoker’s foul mood into contented bliss or a smoker dragging too deeply in a quest for euphoria were stricken. And linkages of smoking and sex made the censors nervous; thus, “Camel time is pleasure time” had to be changed to “Camel time is flavor time,” and “Happiness is the taste of Kent” was censured for equating happiness with good health, whereas no objection was raised to “I changed to Winston, and I changed for good,” with health among the possible readings of that “good”. Winston, though, was not allowed to refer to its filter as “modern,” “pure,” or “white” on the ground that they all connoted a therapeutic quality. More puzzling still, Tareyton’s “charcoal filter” had to become “filter of charcoal,” and despite the mandated taboo against linking smoking with social success, no objection was raised when Parliament was said to suit “the right time … the right place … the right people.” For such inconsistencies, Meyner was soon said by the tobacco lawyers to have “a whim of iron.”
There was nothing whimsical, though, about the code administrator’s directives to Philip Morris’s resident ad genius, Jack Landry, zealous guardian of the authenticity of “Marlboro Country”. “Meyner would tell you to slow the horses down, there was too much action,” Landry recounted of the ad czar’s sweeping interpretation of athleticism. More to the point, Meyner was convinced that the Marlboro cowboys were highly attractive to youngsters and enticed them to begin smoking, and when Landry protested, fearing that the whole campaign might be endangered, Meyner ordered a survey of New Jersey high school students to assess the impact of Marlboro ads. The study did show a marked and growing preference for the brand among the teens, but, as Landry recalled, “Not one kid mentioned our advertising or the cowboy. It was ‘My friends like it’ or they thought the package was attractive.” Meyner backed off, but not before disallowing the cowboy to be shown delivering the sales pitch or heard in a first-person voice-over. Nor could the cowboy be presented in too heroic a pose, as from a very low camera angle aimed upward. “We used to shoot the Marlboro Man as if he were the Jolly Green Giant, Paul Bunyan, Jack Gonads—now we had to work him down to life size,” said one member of the Leo Burnett agency production team.
The serious displeasure within the industry over Meyner’s conduct was reflected in a memorandum written late in 1965 by Lorillard’s outside counsel, Washington lawyer Robert Wald, complaining of the code office’s lack of impartiality and its permissiveness in allowing Marlboro to proceed with “a great campaign with probably the greatest appeal to kids: the gnarled, weather-beaten cowboy—the hottest virility, sexual symbol going,” and Winston “to use all the gimmicks proscribed for kids: romantic, daring, imitative figures, excessive pleasure, fun, fun, fun … .” Particularly objectionable to Wald was Salem’s springtime-in-the-woods theme implying that a nice smoke was a passport to health and romance and a mentholated one was bursting with the freshness of youth in nature’s season of renewal. The Lorillard lawyer asked of the young lovers displayed in these bosky idylls, “Where had this couple been? Where are they going? Wherever, it is plain Salem is the reward—or the essential prelude.” Yet these smoke-clad romances evaded Meyner’s ax. As one ad agency executive catering to a tobacco client told
Harper’s
in March 1966, “That’s the reason no one [on Madison Avenue] is really worried about the code. They can’t stop us from showing good-looking people doing good-looking things.” And so millions continued to be lavished on ads linking cigarettes with hillside romps, picnics at the beach, and the whole gang gathered around the family piano, laughing over a half-witted pleasantry.
If Meyner’s enforcement rulings often seemed governed by caprice, he consistently maintained that since smoking cigarettes had not been proven to cause disease, it followed that brands with lowered yields of tar and nicotine could not be said to be safer than others, even if segments of the public leaped to that supposition; brands with reduced numbers were merely catering to a marketplace demand. By the same thinking, Meyner outdid the FTC in stringency with regard to references to filters, holding it improper “to identify or describe the structure, characteristics, function, or performance of a filter, to use qualifying adjectives … or in any way to represent that a filter has a function or purpose other than to affect tobacco taste” because such assertions constituted an implied health claim.
Such a reading of the 1960 FTC ruling that effectively halted the “tar derby” was a blow to the marketing efforts of brands aimed at the health-conscious smoker, including American Tobacco’s lowered tar Carlton, Philip Morris’s Parliament, and especially Lorillard’s Kent, the industry leader, selling 3 million packs a day and inspiring the company to ready for market an even lower-yielding brand, to be called True. In a sharp letter to Meyner, Lorillard asserted that “if manufacturers can’t identify, describe, or differentiate the specific unique distinguishing characteristics … of their filters in advertising, they cannot effectively compete—either with other filter brands or with nonfilter brands.” But that was a desirable limitation for the makers of the best-selling, “full-flavor” brands like Winston and Marlboro, on which the filter
was essentially a placebo-like appendage. Meyner’s approval of ads for brands that claimed to “put taste back into filter smoking” prompted Lorillard’s counselor Wald to grumble intramurally, “If Meyner had ears to listen with, someone might tell him the only way you can do this is by piling more tar and nicotine in … .” Meyner even threatened Lorillard’s continued use of the “Micronite” name for its filter on the ground that it and others, like Marlboro’s “Selectrate” filter, were little more than science-fiction labels. With tens of millions invested in the name, Lorillard battled to keep the “Micronite” name but agreed to separate it from the word “filter” on the package.
As the leading pursuer of health-conscious smokers, Lorillard mounted a largely clandestine offensive in Washington that aroused its competitors’ darkest suspicions—namely, that Lorillard was in effect conceding the health charges against cigarettes. Lorillard’s president, Manuel Yellen, became a poker-playing crony of Warren Magnuson, while attorney Wald would meet with Magnuson’s key aide on the issue, Michael Pertschuk. Magnuson, Pertschuk, and antismoking activists like Senator Maurine Neuberger and ex-adman Emerson Foote, who had, in the end, supported the soft 1965 labeling law and then been burned by criticism that they had caved in to the tobacco industry, were highly susceptible to Lorillard’s argument that brands like theirs, with reduced tar and nicotine, were in fact a less hazardous smoke and ought to be encouraged by steps like requiring that yields be listed on the packages and in the ads of every brand, as the original Magnuson bill had proposed.
Pertschuk in particular was responsive to Lorillard’s position when it was embraced as well by two of the most authoritative investigators in the field, Daniel Horn and Ernst Wynder. Horn, the behavioral psychologist at the American Cancer Society who had parted company unhappily with Cuyler Hammond and then been let go by the cancer society for his erratic work habits, landed on his feet as the first director of the National Clearinghouse on Smoking and Health, a tiny unit added to the U.S. Public Health Service late in 1965 as an afterthought to the labeling legislation. The Clearinghouse was created to be a repository for all data and studies dealing with smoking and to assist in educating the nation to the attendant health peril. Horn cultivated Pertschuk and, like Wald, urged him to push Magnuson to get the FTC, which received its funding through Magnuson’s committee, to rescind its 1960 ruling against advertising tar and nicotine numbers as an unsubstantiated health claim. Wynder, meanwhile, was passing to Magnuson’s office test results from his laboratory at Sloan-Kettering, showing that the yields from most filter brands remained as high as those from unfiltered brands.
The upshot of this backstage campaign was that FTC chairman Rand Dixon readily accepted Magnuson’s offer of congressional funding for a small testing laboratory under the commission’s aegis to monitor the tar and nicotine yields of all widely available brands on a quarterly basis, with the results made public
so that, as Magnuson put it when the first list was issued in the latter part of 1967, smokers could thereafter “choose their poison” more intelligently and the industry would be inspired to develop less hazardous brands. With the planned laboratory available to establish an objective factual basis for claimed tar and nicotine yields, the FTC could then roll back its 1960 order against advertising the numbers. Pertschuk went to the manufacturers to advise them, not to ask their approval—“I’d grown up by then,” he said—of what was coming, and in the late spring of 1966 the FTC sent a terse letter to the industry ending the ban on the yield figures in cigarette ads, “which may be material and desired by the consuming public.”
But cigarette advertising code czar Meyner, in a holier-than-thou ruling that reflected the strong preference of industry leader R. J. Reynolds, declared that his office would continue to regard the listing of tar and nicotine yields in cigarette advertising as “inherently deceptive.” That was enough for Lorillard, which halted its voluntary compliance with the code and brought out its new True brand, lower-yielding than Kent. Company President Yellen explained, “We felt it was in the public’s interest to inform smokers about True’s filter—any manufacturer ought to be able to do this without having to consult with a code.” Thus, the industry’s united front on advertising policy was broken, amid growing rancor toward Lorillard for trying to advance at the expense of its competitors by feeding public apprehension over the safety of their common product.
II
IN
the immediate wake of the 1964 advisory report to the Surgeon General, the broadcasting industry, beneficiary of some 70 percent of the cigarette makers’ advertising budgets, registered cautious concern about its own role in transmitting messages that might mislead millions of listeners and viewers. The National Association of Broadcasters’ Code of Television Advertising adopted a resolution stating that cigarette advertising carried by its member stations “should not be presented in a manner to convey the impression that smoking promotes health or is important to the personal development of the youth of our country.” Stricter guidelines of acceptability, however, were put aside pending actions taken by the tobacco industry’s newly announced Cigarette Advertising Code. At the TV Code Authority’s New York office, where cigarette ads were screened for stations seeking the NAB’s judgment, the early impression was that cigarette code czar Meyner was no flunky of his employers and meant business.
But in the wake of Meyner’s adversarial response to the FTC’s 1966 about-face, the NAB Code’s New York office concluded that he was a captive of the
tobacco companies and, without asking the permission of its parent headquarters in Washington, compiled a report which found that smoking was still depicted as “universally acceptable, attractive and desirable” and part of “a world to which the adolescent aspires.” When the New York report was sent to NAB executives along with proposals that the broadcasters’ own code be stiffened by eliminating from cigarette ads all sports settings, springtime imagery, heroic types including cowboys, and any depiction of the act of smoking, NAB President Vincent Wasilewski ruled that such toughening measures were “premature,” and the New York office’s report was pigeonholed for biting the nicotine-stained hand that was feeding his industry. Indeed, word reached the New York office from the TV Code’s board chairman, Clair McCullough, regarding requests by NAB member stations for approval of cigarette ads: “When in doubt, okay it.” And when American Tobacco followed Lorillard in withdrawing from the cigarette industry’s code agreement because the company was already submitting its ads to the broadcasters’ code office for vetting, no NAB official disclosed that such submissions were not occurring systematically, as the industry code required.
Frustrated, Warren Braren, principal author of the New York office’s report, took to transmitting under-the-table advisories of his office’s findings on the unreformed nature of cigarette advertising to the FTC’s enforcement division, which retained its power under the 1965 labeling law to move against false or misleading ads for smoking. But Braren never drew a response from the FTC, whose oversight practices struck him as “a charade. It was like putting down atrocities on a piece of paper and filing it.”
The FTC, as it turned out, was not quite so passive. In mid-1967, the commission issued the first of its annual reports to Congress on the tobacco industry as required by the labeling law, and it proved highly critical of the cigarette makers’ efforts at self-policing. The companies’ collective advertising pitch “continues to promote the idea that cigarette smoking is both pleasurable and harmless,” the regulatory commission found, and it was no great trick for the industry to comply with both its own and the NAB ad codes “without making known the health hazards of smoking.” The eighteen-month-old health warning on cigarette packs, moreover, was proving ineffectual, the FTC noted, citing as evidence 1966 unit sales, which reached a new high, and per capita use just under the 1963 record level. The commissioners urged Congress to draw up a stronger warning label and require it, along with disclosure of tar and nicotine yields, in all advertising as well as on the product itself.
As the FTC was signaling that it had not entirely caved in to pressure from the tobacco industry and its congressional agents, its sister regulatory body, the Federal Communications Commission (FCC), issued a ruling that jarred the cigarette companies and broadcasters alike.
The FCC was a more vibrant and focused bureau than the FTC, because it
was empowered by statute to oversee a single industry deriving its very existence from access to the airwaves that the country had decided were the joint possession of all Americans. Accordingly, the FCC had a specific constituency, and its rules and regulations applied across the board to all broadcasting licensees; it did not merely respond to alleged infractions on a case-by-case basis as the FTC for the most part did. In this period the FCC was chaired by a Republican careerist, Rosel Hyde, an unscintillating figure who had been with the bureau since the early days of radio. The true locus of the seven-member commission’s administrative power was its forty-year-old general counsel, Henry Geller, regarded in Washington as one of the town’s most able public servants. A Northwestern law school graduate who had served as a trial attorney with the National Labor Relations Board and as an appellate lawyer in the Justice Department’s antitrust division before joining the FCC, Geller was convinced by the 1964 report to the Surgeon General that the broadcasting industry was “hawking a product causing an enormous health risk.” This view was thoroughly shared by Chairman Hyde, a Utah Mormon who did not require much persuasion about the perils of tobacco to body or soul, and most of the other commissioners.