Authors: Richard Kluger
Cullman soon got in worse trouble. Asked why the industry objected to including the health warning in advertising if the label on the packs had not adversely affected cigarette sales, Cullman said, “I think that is quite different. By the time that someone buys a package of cigarettes, that person had decided to smoke that pack of cigarettes”—to which his interrogator replied, “You are the best witness for why this needs changing that I have heard.” Finally, liberal Democrat Bob Eckhardt of Texas began grilling Cullman about the efficacy of filters on cigarettes, asking if their very presence did not imply a health hazard from the tar and nicotine. Cullman replied that the industry might discuss filters and tar and nicotine yields in its advertising but did not make any health claims in the process. “You feel they [filters] really don’t do any good, but they do cater to the public?” Eckhardt asked. “No, I didn’t say that,” Cullman shot back, and added, revealingly, “They do considerable good.” And he elaborated, in a way that seemed to undermine his opening statement about the alleged lack of evidence relating tar and nicotine yields to any health risk, by pointing out the sharp drop in those yields over the preceding decade. Eckhardt wondered what the significance of that product modification was, but Cullman clung to the industry line: “We don’t think it is significant. But we do know people want cigarettes of lower tar and nicotine.”
Such moments of high discomfort aside, the House hearings were a pro-industry whitewash; there was no orchestrated outcry from the public-health community, and antismoking forces on the Commerce Committee were powerless to do much more than heckle. What emerged was a bill calling for a six-year extension of the 1965 labeling act as well as for a marginally tougher message on the pack—“Warning: The Surgeon General has determined that cigarette smoking is dangerous to your health and may cause lung cancer and other diseases.” Even this the industry found oppressive; to concede that their
product “is dangerous” was going a good deal further than to admit that it “may be hazardous,” as the expiring law had worded it. And the very mention of cancer, even as possibly linked to smoking, was unacceptable to the manufacturers, ever more wary of their vulnerability to product liability suits. A ban on cigarette advertising on television was barely whispered about in the House.
Closely tracking the House proceedings was the tobacco industry’s most dangerous opponent on Capitol Hill—Senator Magnuson’s key legislative aide on consumer affairs, Michael Pertschuk. In regular contact for several years with staff members at the National Clearinghouse on Smoking and Health and its director, Daniel Horn, Pertschuk was determined that the cigarette makers would not escape serious regulation as they had four years earlier. His hand was notably strengthened by the rising recognition in Congress that legislation backing consumer interests was becoming good politics, as Magnuson’s rejuvenated career and the emergence of Ralph Nader as a serious and widely admired independent consumer advocate were demonstrating.
To slow the momentum of the pro-industry bill due from the House Committee, Pertschuk worked behind the scenes to introduce a telling piece of testimony that had fallen into his lap and argued for congressional intervention in television advertising. After several years of watching the NAB’s Advertising Code Authority permit its oversight of cigarette advertising to turn into a travesty, Warren Braren, head of the code’s New York office and chief author of the 1966 report critical of the tobacco industry’s own effort to curb its advertising, had quit in disgust. Upon hearing NAB President Vincent Wasilewski testify before the House that the broadcasters were rigorously vetting cigarette commercials, Braren decided to blow the whistle. He contacted his friend Stanley Cohen,
Advertising Age’s
top Washington correspondent, who put him in touch with his friend, the delighted Pertschuk, who prevailed upon Oregon’s Representative Brock Adams to pry open the formally adjourned House hearings on the ground that the NAB had seriously misled the lawmakers about its own and the tobacco industry’s self-regulation of cigarette advertising. Braren’s extensive testimony caused a sensation and was an embarrassment to Wasilewski, who, when recalled to justify his earlier statements in light of Braren’s revelations, tried limply to explain away the disregarded 1966 report by his New York office and denied all charges of nonfeasance by his Code Authority. The House committee gave a brief tsk-tsk, then voted 22 to 5 to extend the labeling law with the change in wording but no further restriction on the industry. (Braren, for his trouble, was effectively blacklisted by the broadcasting industry but found useful work with Consumers Union.)
A majority on Magnuson’s Senate Commerce Committee found the House committee’s measure offensive. Indiana’s Vance Hartke, who had done the tobacco industry’s dirty work when the original cigarette labeling bill was
considered, was no longer willing to, and Utah’s Moss, named to chair Commerce’s consumer affairs subcommittee and facing reelection the following year, threatened to filibuster the weak House version of the labeling law extension if a Senate majority formed behind it—a stratagem that would then allow the regulatory agencies to step in with sterner measures. And the FTC showed every sign of doing just that, convening hearings the very day after the old bill expired to consider a tough regulatory rule including a ban on broadcast advertising, already embraced by the FCC. A highlight of the FTC session, symptomatic of the unraveling fortunes of an industry that had overplayed its hand, was a gaffe by the Tobacco Institute’s usually deadly hired gun, attorney Thomas Austern. In ridiculing the need for a tougher label on the perils of smoking, Austern said that “anybody who is not deaf and blind knows it’s a hazard”—he had forgotten to insert the lawyerly disclaimer “alleged to be” before the final two words and was immediately lashed for it by Philip Elman, the commission’s most ardent antismoking member.
By then the broadcasters’ association, its credibility shaken by the Braren testimony and fearful that the Senate Commerce Committee was about to come down hard on unchastened cigarette commercials, went to Magnuson with a deal it had chosen not to tell the tobacco companies about: Tobacco ads would be phased off the air over a four-year period, so that the broadcasting industry would not be badly bruised in the process; only brands with tar and nicotine yields ranking in the lowest quarter could continue to be advertised; and antismoking commercials being carried gratis in prime time by the stations could therefore, because of the fairness doctrine, continue, albeit on a reduced basis. It was a tempting offer to Magnuson, Pertschuk, and especially Daniel Horn at the Clearinghouse on Smoking and Health, where the belief prevailed that low-yielding brands were a useful way station to quitting and the broadcast antismoking messages were having a definite dampening effect on cigarette sales. In the end, though, the offer was rejected. “It sounded too much like a deal to Magnuson,” Pertschuk recalled, and as Clearinghouse staff lawyer Edward Merlis remembered the decision, “The moral imperative dictated giving the television ban priority.” If the antismoking commercials had to be sacrificed, then so be it.
Rebuffed, the broadcasters announced during the FTC hearings that they would curtail all cigarette advertising over a three-and-a-half-year period. The news did not sit well with the tobacco companies, who had not been consulted and felt betrayed. But by then the cigarette makers were facing up to the political readout they were getting from Earle Clements, retiring Tobacco Institute president: the industry’s position in the Senate was hopeless; better to surrender on favorable terms than to be shot down in flames.
Cullman, now due to present the industry’s position before the Senate Commerce panel, was feeling intense heat even within his own company over
the prospective TV ban. As one company lawyer recalled, “He was hearing in particular from Jack Landry, who was saying, ‘Joe, you can’t let this happen—you’ve got to lie on the tracks and let them roll over you before you cave in … .’” But pride in tobacco and anguish over its stigmatized standing did not blur Cullman’s calculating mind. He saw there was a silver lining on the dark cloud directly over the industry’s head if it stood up now and voluntarily took its advertising off the air. The move would effectively end the possibility that any new competitors would ever enter the cigarette business in the future, however profitable the product, since without television advertising, the introduction of new brands would prove prohibitively expensive. If all the companies agreed to get out together, moreover, they would surely save many millions of advertising dollars, which could be used in non-tobacco diversification efforts or simply be brought down to the bottom line in the form of higher profits and dividends. And a timely retreat now would likely stave off still more mortifying measures by Congress, such as requiring the warning labels in print advertising along with the listing of tar and nicotine yields, and would mean the end of the barbed antismoking commercials.
“Joe was very patient, hearing all sides of the argument,” one company counselor recounted. “Nobody was more disappointed than he was at the prospect of giving up television—he liked the medium, it had been good for the company, and quitting it seemed to stigmatize the product” even more than accepting the warning label had done. And there was the distinct possibility that the end of TV advertising would help freeze company market shares within the industry—a prospect that probably served to bring pacesetting Reynolds into line, for it looked to have the least to lose from the prohibition.
The Senate hearing on the cigarette bill on July 22, 1969, began with a twenty-minute film spliced together for the occasion and intended to crystallize antitobacco sentiment in the upper chamber. Assembled by Pertschuk, Merlis, and Clearinghouse publicist Richard Hutchings from clips of commercials provided by the industry and shown in the auditorium of the new Senate office building to attract a wide audience, the film featured beautiful people puffing happily away in a variety of settings. “We were enthralled by the skill that went into their making,” Merlis recalled of the assemblage. “It was a very entertaining and alluring collection when viewed all together—you could see how they meant to create images of success and accomplishment that were seductive to kids.” Hoist with their own petard, as it were, the tobacco companies then accepted the inevitable. Cullman read the industry’s statement of concession: All cigarette commercials would cease as of September 30, 1970.
As part of the bargain, specific reference to cancer or other diseases was removed from the new warning label language, leaving it marginally more cautionary than the previous wording, but the FTC was empowered to consider the inclusion of warning labels in all surviving forms of advertising within six
months of the onset of the broadcast ban—a second clear victory for the anti-smoking position. All but lost sight of, though, was a change in the preemption section of the act engineered by the industry lawyers that would have an effect not fully grasped by its adversaries for the better part of twenty years. The warning in the 1965 labeling law had been termed by its own statutory language to be “adequate” for its dual purpose—namely, alerting the public to the health hazard of smoking while preventing any government measures or enactments in conflict with the congressionally mandated wording, of the sort that the FTC and several state legislatures had been considering at the time, in order not to hamper the interstate operations of the tobacco industry. The law’s reach did not on its face foreclose adjudicative proceedings carried out under state common law governing torts in general and product liability in particular. But the 1969 bill was worded a bit differently:
SECTION 5 (b). No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.
The phrase “imposed under State law” was far more sweeping in its reach than the earlier wording, as Supreme Court watchers might have detected from a decision by that body ten years earlier which held damages awarded under state common law of torts to be a form of regulation. Did this mean that a smoker sick from the habit could no longer even bring suit under state law, asking a jury to decide whether the claimant had been adequately put on notice by the warning label and thus had assumed whatever risk was entailed by use of the product? In the 1959 Supreme Court decision of
San Diego Building Trades Council
v.
Gannon
, the justices had said state regulation “can be as effectively asserted through an award of damages as through some form of preventive relief. The obligation [by a tortious defendant] to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” In other words, if product liability suits filed under state common law were a way of circumventing a congressional mandate that said no other “requirement or prohibition … shall be imposed under State law,” then damage claims by smokers falling ill after the federal warning label went into effect were arguably blocked by the wording of the new bill. But since the chronic diseases associated with smoking had long incubation periods, dating back years and probably decades before the warning label had been affixed by law, the whole issue was too new and its legal consequences too far in the future to worry public-health advocates, delighted to achieve the more urgent objective of getting cigarette ads permanently removed from television’s spellbinding eye.
In their bitterness over the tobacco industry’s sudden withdrawal from combat, the broadcasters now raised a Fifth Amendment argument they would not have dared to broach before they and the cigarette makers had parted company: If cigarettes were so dangerous that they deserved to be taken off the electronic media, why were they deemed fit for advertising in any other media? The product, if Congress were acting rationally and not prejudicially denying broadcasters equal protection of the law, ought not to be allowed to be advertised at all—and if cigarette sales did not then materially diminish, perhaps the product itself should be outlawed as a public-health measure.