In Re FORMULATION OF APPROPRIATE FURTHER REGULATORY POLICIES
CONCERNING
CIGARETTE ADVERTISING AND ANTISMOKING PRESENTATIONS
Docket No. 19050
27 F.C.C.2d 453
FCC 70-1305
Adopted December 15,
1970
Released December 16, 1970
BY THE COMMISSION: COMMISSIONER BARTLEY
CONCURRING AND ISSUING A STATEMENT; COMMISSIONER
JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT;
COMMISSIONER H. REX LEE CONCURRING IN THE RESULT.
1. On October 15, 1970, the Commission
issued a notice to interested persons that comments may be submitted on
appropriate further regulatory policies to be adopted with respect to two
issues: (1) the possible fairness doctrine obligations, if any, in the situation
where a broadcast licensee, which does not present cigarette commercials,
broadcasts announcements to the general effect that cigarette smoking is
hazardous to health and persons should therefore not commence or continue
smoking (see complaint of Michael Handley, dated August 25, 1970), and (2) the
public interest obligations of the broadcast licensee after January 1, 1971,
when all cigarette advertising on broadcast media will cease (see petition for
rule making filed October 13, 1970, by Action on Smoking and Health (ASH).
Comments were submitted by the Tobacco Institute, the Surgeon General, the
American Cancer Society, National Tuberculosis & Respiratory Disease
Assoc., Mr. Warren Braren, and several broadcasters or broadcast associations
(see Appendix A for a list of these broadcasters). We shall briefly sketch the
basic thrust of the comments, and then turn to our treatment of the issues.
2. The main thrust of the broadcasters'
comments is that, after termination of the cigarette commercials, the
Commission should not, and cannot properly, require licensees to present
anti-smoking presentations, including the prescription of amounts of time to be
devoted to such presentations. The comments rely on Commission reports such as
the Report on Editorializing by Broadcast Licensees, 13 FCC 1246 (1949), and
1960 Programming Statement, 20 Pike & Fischer, Radio Regulation, 1902,
1915, to the effect that it is up to individual licensees to make judgments as
to what issues or programming is to be presented. On the question as to
whether, if a licensee did present messages pointing up the health hazard in
smoking, it was required under the fairness doctrine to afford time for
spokesmen to urge the opposite (i.e., that smoking is not hazardous), the
licensees split on their comments. Some, pointing to prior Commission
precedents, stated their belief that fairness would require the presentation of
pro-smoking viewpoints. Several others, however, stated their judgment and
belief that in view of developments leading to Public Law 91-222, the general
issue of cigarettes being a health hazard can reasonably now be regarded as no
longer a controversial one.
3. ASH urges the adoption of a rule
providing that 'the obligation of a licensee to devote a significant amount of
time to the presentation of views and information on the health hazards of
cigarette smoking continues notwithstanding that it has discontinued the
broadcasting of cigarette commercials sponsored by tobacco companies.' It
asserts that there is support for such a rule in the legislative history of the
1969 Cigarette Labeling and Advertising Act, and cites three grounds for the
rule: (1) the strong public interest, in view of the health hazards involved;
(2) the fact that 'since the inception of commercial television, the viewing
public has been bombarded by cigarette commercials,' and the proposed rule is
thus necessary to make up for the 'decade of one-sided presentations and their
lingering remnants...' (Pet. p. 7); and (3) that broadcasts presenting smoking
in a favorable light (e.g., the hero smoking in some movie) '... will continue
even after the Congressional ban on sponsored cigarette advertisements, as will
so-called 'hidden commercials' now being promoted by the tobacco industry'
(Pet. p. 10). ASH avers that smoking is still a controversial issue of the
greatest importance.
4. The Tobacco Institute, on the other
hand, urges that the present specific obligations of broadcast licensees to
devote a significant amount of time each week to materials expressing the view
that smoking is hazardous to health will not be applicable after January 1,
1971, because cigarette advertising on broadcast media will cease as a result
of the Public Health Cigarette Smoking Act of 1969. It disputes ASH's
supporting grounds, pointing out that broadcasters for almost three years have
been informing the public concerning the health hazards involved. It further
states that there is not the slightest basis for the 'reckless' charge that the
tobacco industry 'is now taking steps to get hidden commercials on the air in
violation of the spirit of the 1969 cigarette act.' (ASH Pet. p. 10). The
Institute argues that it would be wholly improper for the Commission to
scrutinize programming content to '... search out broadcasts ostensibly
presenting smoking in a 'favorable light." (p. 20). It argues that after
January 1, 1971, the public interest obligations of licensees with respect to
the issue of cigarette smoking will be the same as with respect to all other
matters of public concern; that licensees have discretion to determine that
matters of public interest should be broadcast from among the multitude of such
matters competing for broadcast time. Finally, it states that if licensees
decide to exercise their discretion to carry antismoking materials, they will
have an obligation under the fairness doctrine to provide reasonable
opportunity for the presentation of materials expressing the view that smoking
may not be hazardous to health. It urges that this is also the case in the period
until January 2, 1971, if a licensee does not carry cigarette commercials but
does carry anti-smoking messages.
DISCUSSION
5. We shall discuss the first question
set out in paragraph 1 and then turn to the second question. However, the two
questions are closely related, and thus the discussion here is also necessarily
pertinent to our disposition of the second issue.
6. The first issue is the possible
fairness doctrine obligations, if any, in the situation where a broadcast
licensee, which does not present cigarette commercials, broadcasts
announcements to the general effect that cigarette smoking is hazardous to
health and persons should therefore not commence or continue smoking. As shown
by the complaint of Mr. Michael Handley, that issue is presented today, since
several stations have already dropped cigarette commercials but have continued
to present general anti-smoking messages. Clearly, the issue becomes even more
important after January 1, 1971, when all stations will cease carrying cigarette
commercials.
7. We believe that this issue is to be
disposed of under the accepted, long established principle in the general
fairness area -- namely, that it is up to the licensee to make a reasonable,
good faith judgment on the basis of the particular facts before him as to the
possible application of the fairness doctrine, and specifically whether he has
presented one side of a controversial issue of public importance. Thus, we
believe that little is gained here by citation of previous Commission rulings
[FN1] or by references to past testimony before the Congress. The critical
issue here is the licensee's judgment today -- directed to the circumstances
before him.
8. The Tobacco Institute argues that the
licensee's judgment is constrained -- that we should hold that if a licensee
presents messages going to the general health hazard (e.g., earlier mortality;
lung cancer; emphysema), with a call to stop smoking or not to begin, the
broadcaster must provide a reasonable opportunity for the view that smoking may
not be hazardous to health. Of course, broadcasters may, if they wish, present
such a view, in light of their wide discretion. [FN2] But as stated, a number
of broadcasters who filed comments in this proceeding have set forth their
judgment that in light of developments, the general issue of smoking being a
health hazard is no longer controversial. We decline to upset that judgment as
unreasonable.
9. For, clearly, there have been most
significant developments since the Surgeon General's 1964 Report which touched
off a substantial controversy. Continuing massive studies have been made or
completed in the ensuing years. The results of these studies were reported by
HEW to the Congress pursuant to its direction in the 1965 Federal Cigarette
Labeling and Advertising Act. Senate Report No. 91-566, 91st Cong., 1st Sess.,
p. 3, on the Public Health Cigarette Smoking Act of 1969, sets forth the
significant conclusions from the HEW reports ('The Health Consequences of
Smoking, 1967, 1968 and 1969 '). These reports constitute overwhelming evidence
on the general public health aspect of cigarette smoking. [FN3] We note
further, as did the broadcasters referred to above, that Congress has acted on
the basis of the reports. It has changed the labeling requirement from the
phrasing, 'Caution: Cigarette Smoking May Be Hazardous To Your Health' to the
much stronger one: 'Warning: the Surgeon General Has Determined That Cigarette
Smoking Is Dangerous To Your Health.' It has barred all cigarette advertising
on electronic media. And, both the cigarette industry and the broadcasting
industry (the latter with a different phase-out period) agreed to such a bar
during the legislative process leading to the 1969 Act. See Senate Report,
supra, at pp. 9, 11. It is difficult to reconcile the cigarette industry's
acquiescence in the 1969 ban, with its contention here that the broadcaster,
who presents a general announcement that smoking constitutes a health hazard
and therefore people should not begin smoking or should stop, cannot reasonably
reach the judgment that the matter is not controversial -- that he need not
present offsetting material to the effect that smoking is no health hazard and
people should commence or continue to smoke.
10. We wish to make clear that we are not
issuing any blanket ruling covering every existing or future anti-smoking
announcement, and could not properly do so, outside the context of a specific
complaint. Our holding is directed to only one general aspect, albeit a most
important one -- that cigarette smoking is a hazard to public health (i.e., the
main cause of lung cancer; the most important cause of chronic bronchitis or
pulmonary emphysema, etc.). While that facet may now be adjudged by the
broadcaster no longer to be a controversial issue, there can clearly be most
substantial controversies as to other aspects (e.g., particular studies or
statistics; what remedial actions should be taken). As to such aspects, the
fairness doctrine would be applicable, and we concur with CBS' comments in this
respect (p. 4, CBS Comments):
The Commission should leave to the judgment of
licensees whether announcements dealing with the health hazards of cigarettes,
which are broadcast after January 1, 1971, raise obligations under the fairness
doctrine such as to require presentation of opposing views. These judgments
must rest on the content and frequency of the announcements broadcast as well
as the licensee's overall programming. In any event, it should be the
licensee's initial responsibility to identify any issues raised and choose the
appropriate reply spokesman where necessary. Those opposing any such
announcements or seeking opportunities to respond would have available to them
the Commission's normal procedures by which to seek redress.
11. The Tobacco Institute argues (p. 31)
that refusal by the Commission to require licensees to afford time to spokesmen
to present the viewpoint that smoking may not be hazardous would raise grave
constitutional questions under Red Lion Broadcasting Co. v. F.C.C., 395 U.S.
367 (1969), since it would involve 'the official government view dominating
public broadcasting' and a discriminatory refusal to require the licensee to
broadcast certain views which have been denied access to the airways' (Red
Lion, at p. 396). The argument is, we believe, specious. If broadcasters
presented a Public Health Service bulletin urging that aspirin be kept out of
the reach of children and citing statistics as to deaths caused in this way,
such broadcasters would not be violating the Constitution if they rejected a
request to present the viewpoint that aspirin poses no hazard in this respect.
We realize that the example is far-fetched; our point is that the broadcaster
can make judgments in this area and that if the judgments are reasonable, they
do not constitute a violation of either the Act (Section 315(a)) or the
Constitution.
12. The Tobacco
Institute also cites (p. 34) Banzhaf v. F.C.C., 405 F. 2d 1082 (C.A.D.C. 1968),
certiorari denied, 396 U.S. 842 (1969), in support of its argument. But that
case holds squarely against the Institute's position. The Court there noted
(id. at pp. 1091-93) that the Commission's holding was based really on the
public interest standard rather than the fairness doctrine, and that that
standard clearly comprehended a public health consideration such as this. See
also Retail Store Employees Union v. F.C.C., F. 2d (C.A.D.C., 1970, S1.Op., p.
18, n. 58. In the latter respect, the Court stated (405 F. 2d at p. 1097):
... The danger cigarettes may pose to health is,
among others, a danger to life itself. As the Commission emphasized, it is a
danger inherent in the normal use of the product, not one merely associated
with its abuse or dependent on intervening fortuitous events. It threatens a
substantial body of the population, not merely a peculiarly susceptible fringe
group. Moreover, the danger, though not established beyond all doubt, is
documented by a compelling accumulation of statistical evidence. The only
member of the Commission to express doubts about the validity of its ruling had
no doubts about the validity of its premise that, in all probability,
cigarettes are dangerous to health. [Footnote omitted] [FN4]
The Court thus described the Commission's ruling as '... a public health
measure addressed to a unique danger authenticated by official and
congressional action...' (id. at p. 1099).
13. Most significantly, the Tobacco
Institute argued in that case (Br. pp. 61- 63) that the Commission had erred in
holding that a licensee who has carried the cigarette commercials has covered
one side of the issue on the behalf of the cigarette companies and is thus
under no obligation to present further pro-smoking materials. It argued that
the commercials do not discuss the health hazard and indeed could not in view
of FTC policies; that in any event they 'certainly do not contain the explicit
and detailed discussion of the issue which the FCC contemplates will be
presented on behalf of the anti-smoking point of view'; and that therefore the
FCC had no right to weight the scales in this fashion. The Court rejected this
argument on the basis of its above-described public health rationale (id. at p.
1103).
... the Commission did not abuse its
discretion in refusing to require rebuttal time for the cigarette
manufacturers. The public health rationale which supports the principal ruling
would hardly justify compelling broadcasters to inform the public that smoking
might not be dangerous....
14. We turn now to the second issue in
our inquiry -- the public interest obligations of the licensee after January 1,
1971. The initial consideration is the request of ASH that broadcasters be
required by rule to devote a significant amount of time to the presentation of
views and information on the health hazards of cigarette smoking. We find no
basis for such a rule in any of the grounds advanced by petitioner. Thus, as to
the argument that there have been decades of cigarette commercials, we note
that during the last three years antismoking material has been presented by
licensees on a virtually daily basis, including during periods of maximum
listening and in reasonable ratio to the commercials (see NBC, Inc., 16 FCC 2d
956 (1969)). There is no showing before us that this has not served to inform
the public to a substantial degree of the health hazards of smoking -- that
prior decades of cigarette advertising call for something beyond this recent,
three-years substantial effort. Similarly, there is no showing or basis before
us to act upon the ASH's bare claim that the tobacco industry is planning to
present 'hidden commercials.' [FN5] Nor do we believe that we should act to
require anti-smoking presentations because the stars on some TV shows or in
some movies carried on television smoke cigarettes. This would involve intensive
scrutiny by the Commission of entertainment programs to determine whether
smoking was presented 'in a very favorable light' (ASH Pet., p. 10); in the
case of movies particularly, it would involve a balancing of whether the hero
or 'heavy' is shown smoking, and to what extent. Were we to adopt this
approach, we would be examining a multitude of drama and other entertainment
programming with respect to a variety of every-day occurrences (e.g., a person
taking a drink; driving a high-powered automobile).
15. Finally, ASH urges that the health
hazard in smoking is so great that the public interest requires adoption of the
rule which it urges. In support, it cites the legislative history of the 1969
Act; we have examined that legislative history and find that it does not
support petitioner's position (see, e.g., testimony of Chairman Hyde, Hearings
Before the House Committee on Interstate and Foreign Commerce, on H.R. 643,
91st Cong., 1st Sess., pp. 209, 226). In any event, the law in this area is well
established. There are a number of pressing, important matters to which the
licensee as a public trustee could direct its attention -- deaths caused by
drunken driving; the health consequences of various forms of pollution; the
Indo-China War; racial strife, etc. With the cessation of the cigarette
commercials, it would be inappropriate to single out this one matter as the
basis for a rule such as proposed by ASH.
16. While no rule is thus appropriate, we
do not believe that our decision should end without further treatment of the
licensee's responsibility in this general area. Indeed, in view of the comments
filed by the broadcasters and our prior holdings (e.g., Letter to Mr. Soucie
(Friends of the Earth), 24 FCC 2d 743, 750-51 (1970)), further discussion is
warranted.
17. As we made clear in Letter to Mr.
Soucie (Friends of the Earth), 24 FCC 2d at 751, n. 9, we agree that this is an
area committed to the licensee's discretion -- that the Commission cannot
properly compile any priority list. We have not done so, and have no intention
of issuing a list of 'must' issues. At the same time, it is simply not correct
that the broadcaster has unlimited discretion to use his faculties as he
wishes. As the Red Line case stresses (supra, at p. 394), the licensee is '...
given the privilege of using scarce radio frequencies as proxies for the entire
community, obligated to give suitable time and attention to matters of great
public concern.' See In re Democratic National Committee, 25 FCC 2d 216,
221-223 (1970); Report on Editorializing, 13 FCC 1246, 1249 (1949). The
broadcaster is of course confronted with a host of issues; must make judgments
as to which to cover and in what way; and clearly has very great discretion in
making judgments in this area. But, as a matter of common sense and knowledge,
there do emerge issues of overriding public concern. Such issues should become
readily apparent to a licensee in the course of his 'diligent, positive and
continuing effort' to discover and serve the needs and interests of his
community. In short, the licensee cannot ignore such matters and claim at
renewal time that it is meeting the needs and interests of its area -- that it
is fulfilling its 'crucial' duty spelled out in Red Lion. We have held in the
Democratic National Committee ruling, supra, that it is the broadcaster as
public trustee -- not the affluent or powerful interest -- who determines the
great issues on which the public must be informed; but that means that Red
Lion, with its concept of public trustee, is controlling, and that 'matters of
great public concern' are given suitable time and attention. See par. 18,
infra.
18. A few broadcasters and the Tobacco
Institute, in effect, urge that cigarette smoking is no longer a matter 'of
great public concern.' See p. 15, Tobacco Institute comments (smoking does not
have the 'same prominence' as other national problems). We note that this
contention runs counter to the reports on which Congress has acted (see para.
9, supra) and indeed the very fact that Congress has acted in the forceful
manner of Public Law 91-222. See also the following portion of our Notice in
Docket No. 18934:
It is estimated that '... within ten years the
death toll from these two diseases [emphysema and chronic bronchitis], which
doubles every five years, could be well over 80,000.' (The Dark Side of the
Marketplace, 1968, by Senator Warren G. Magnuson and Jean Carper, p. 187). The
annual number of deaths in the
There is nothing, in our opinion, which offers a
greater or more immediate opportunity of reducing illness and premature death
in this country than a national effort to reduce cigarette smoking. Radio and
television can make an important contribution to this effort through their
acceptance of public service announcements from Government and the voluntary
agencies. If everyone were to give up cigarettes, be it remembered, early
deaths from lung cancer would virtually disappear; there would be a substantial
decrease in early deaths from chronic bronchopulmonary disease and a decrease
in early deaths of cardiovascular origin.... [FN6]
Further, the question whether the licensee who fails to treat this subject has
served the public is one which can be definitively assessed only at renewal
time when the licensee's overall public service performance effort is
evaluated. We also note our full agreement with the proposition that which
public service subjects are to be covered and how is for the licensee's
judgment, based on its evaluation in light of the competing public service
demands.
CONCLUSION
19. We have afforded general guidance to
the extent reflected above. We dismiss the ASH petition for rulemaking and deny
the relief requested by the Tobacco Institute. The proceeding is herewith
terminated with adoption of this Report. IT IS THEREFORE ORDERED, That the
petition filed by ASH IS DISMISSED, and the proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING STATEMENT OF COMMISSIONER
ROBERT T. BARTLEY
I concur to the extent that after the
effective date of the law (January 1, 1971), a licensee may well determine that
serving the public interest requires that it continue the presentation of
matter regarding the health hazards involved in cigarette smoking, and that it
is likewise within the discretion of a licensee to adjudge that controversial
issues of public importance exist on the subject, requiring the presentation of
contrasting views in whatever forms of programming he deems most appropriate.
SEPARATE
STATEMENT OF COMMISSIONER NICHOLAS JOHNSON, CONCURRING IN PART AND DISSENTING
IN PART
Cigarette commercials have been used on
radio and television for years. Many people -- including representatives of the
broadcasting and tobacco industries -- believe these commercials bear a major
share of the responsibility for the increase in cigarette consumption from 138
cigarettes per person in 1913 to over 4,000 cigarettes per person per year
during the 1960'są
Following action by the U.S. Surgeon
General [FN7]
and the Federal Trade Commission, [FN8] the Federal Communications Commission
-- in response to the insistence of a dedicated single citizen, John Banzhaf --
held that the 'Fairness Doctrine' required broadcasters to present information
about the health hazards of cigarette smoking. Cigarette Advertising, 9 F.C.C.
2d 921 (1967). This information was generally presented in the form of public
service announcements that have come to be known as 'anti-smoking commercials.'
These spot announcements -- like the cigarette commercials themselves -- have
been found to be very effective. Indeed, while they were being run tobacco
consumption actually declined -- for one of the first times in our nation's
history. [FN9]
Then, with the mounting evidence of the
epidemic proportions of cigarette-related deaths, and the intensifying
involvement of Congress, the Congress finally decreed that all cigarette
commercials be banned from television and radio after January 1, 1971. Public
Health Cigarette Smoking Act of 1969, P.L. 89-92, 15 U.S.C. §§ 1331-1339
(1969).
The band, however, still leaves the
question of the broadcasters responsibility to continue to carry the
anti-smoking spots. That is the principal question the FCC majority has
addressed in today's action.
I
The main thrust of the majority's
opinion, in which I concur, plainly establishes that the public must continue
to be adequately alerted to the proven hazards of smoking.
Senator Frank E. Moss, chairman of the
Senate Commerce Committee's consumer subcommittee, has stated that 'Our deep
concern in Congress has primarily focused upon the utilization of the airwaves
-- a public resource -- for the massive promotion of a condemned product.'
Hearings Before the Consumer Subcomm. of the Senate Commerce Comm., on H.R.
6543, 91st Cong., 1st Sess., p. 76.
I believe it is essential to study
Senator Moss' statements and the rest of the legislative history if we are to
understand the Congressional intent behind the policy this Commission is
charged with implementing. In opening hearings that eventually led to the
Public Health Cigarette Smoking Act of 1959, Senator Moss set forth (at 76) the
grim task this Commission faces now:
There can be no joy on this occasion. This is
tragedy -- tragedy, first, in the death and debilitation of millions of
Americans struck down by what they assumed was a harmless, but tenacious,
habit.
Secondly,
tragedy, in the serious health threat to millions who know they should, but
cannot quit.
And tragedy,
finally, in the misdirection given young people by the ubiquitous commercials
which drown out the urgent pleas of the public health community.
This 'tobacco issue' cannot fairly be separated, I think, from the general drug
scare now sweeping the land.
The nation is turning sharp attention to
the corporate interests that feed, and feed upon, the artificially-induced thirst
for a chemical solution to all life's problems: pep pills, tranquilizers,
alcohol, sleeping pills, headache remedies, stomach settlers, cigarettes, and
other contemporary commercial panaceas.
It is in the context of this general drug
problem that the Commission's meek action today appears somewhat curious. The
very highest echelons of government are going so far as to influence broadcast
programming, including attempts to persuade entertainment shows to support the
Administration's ideological position on marijuana. Broadcasters and record
industry executives have been called to the White House -- with the F.C.C.
Chairman in attendance -- and urged to get 'drug lyrics' off the air. The White
House Director of Communications proposed that
In light of the current concern over drug
abuse -- and the overwhelming condemnation of smoking as a cancer hazard -- I
find the Commission's action today unfortunately limp and half-hearted.
Accordingly, I
concur in part and dissent in part.
II
The majority has been much less frank
than it might have been. Its opinion comes close to smacking of what Chief Justice
Burger, then a judge of the U.S. Court of Appeals (D.C. Cir.), has condemned as
this Commission's 'curious neutrality-in-favor-of-the licensee.' United
I find the majority opinion inadequate
for two major reasons:
1. Because of the industry's usual
reluctance to air any speech other than paid speech, and because of the
Commission's lack of enforcement mechanisms beyond very occasional citizen
monitoring, today's decision probably will reduce substantially the very
effective antismoking spot advertisements now heard over our airwaves. I do not
believe Congress ever envisioned that its ban on cigarette commercials on radio
and television would have the consequence of actually increasing cigarette
consumption by removing from radio and television the most effective device yet
discovered for reducing cigarette consumption.
2. The vague duty the majority does set
forth is unfair to the industry, in that a reasonable broadcaster has little
idea of how much is expected of him lest his license renewal be in jeopardy.
The Commission would have done a more commendable job of law-making if more
precise reasonable guidelines had been developed.
The Commission probably appears to some
observers to be retreating from its earlier courageous efforts in dealing with
a deadly serious public health question. The Commission may well not intend
this impression. But the net result is that the Commission has put itself in
the sadly amusing stance of the well-meaning but clumsy tuba player who is
curiously out of step with the well- orchestrated efforts of the rest of the
Federal array in warning the American public of the smoking peril.
This Commission could, as it has in the
past, rely on the expertise of the Surgeon General's Advisory Committee, Report
of the Surgeon General's Advisory Committee, Jan. 11, 1964, whose findings have
been adopted in substance by the Department of Health, Education and Welfare,
the Federal Trade Commission, 29 Fed. Reg. 8325, 15,570 (1964), the Federal
courts, e.g., Banzhaf v. F.C.C., 405 F. 2d 1082 (D.C. Cir. 1968), cert denied,
396 U.S. 842 (1969), and the Senate Commerce Committee, Senate Report No.
91-566, 91 st Cong., 1st Sess. (1969). And of course the Congress itself has
recognized and acted on the danger in the Public Health Cigarette Smoking Act
of 1969.
III
In order for the legal argument to have
full meaning, one must bear in mind the enormity of the cigarette problem for
the national health, and television's vivid potential to create -- or cure --
this problem.
The public
health community has long been aware of the hazards smoking holds for our
health. As long ago as 1650, an English physcian, Dr. Tobias Venner of Bathe,
was summarily reciting for his patients 'the hurts that tobacco infereth':
I will summarily rehearse the hurts that tobacco
inferred.... It dried the brain, diminished the sight, vitiated the smell,
dulled and dejected both the appetite and the stomach, destroyed the decoction,
disturbed the humours and the spirits, corrupted the breath, induced a
trembling of the limbs, exsiccated the windpipe, lungs, and liver, annoyed the
milt and scorched the heart. Dr. Tobias Venner, quoted in Wegman, Cigarettes and Health: A Legal
Analysis, 51 Cornell L.Q. 678 (1966).
Today the ever accumulating evidence
amounts to an overwhelming indictment of even the normal consumption of
cigarettes. Consider some simple statistics. In 1969, some 59,000 Americans
(49,000 men and 10,000 women) died of lung cancer, and over 90 percent of these
deaths are reputedly linked to cigarette smoking. Smoking and Lung Cancer,
Public Health Service booklet (1970). This means that of the 70,000,000
Americans who consume tobacco in one form or another, approximately 53,100 --
or one out of 1,300 -- died of lung cancer in 1969. (If one accepts the higher
figure of 300,000 for all smoking related deaths per year, the ratio becomes
one out of 233). [FN10]
The enormity of this problem in part lead
the FCC several years ago to apply the Fairness Doctrine to cigarette
commercials. Cigarette Advertising, 9 F.C.C. 2d 921 (1967).
We cannot fairly ignore the incredible
impact of advertising, especially broadcast advertising, over the past decades.
Tobacco did not become a mass product in
About the same time, the American tobacco
industry began perhaps the most concentrated and effective advertising campaign
of all time. Annals of Advertising, The New Yorker, Dec. 19, 1970, at 42. This
unprecedented advertising campaign eventually helped make smoking socially
acceptable for men and women alike. [FN11] A second aim for many years, of
course, was to reassure smokers that there were no health hazards in the normal
use of tobacco products. The most blatant claims appeared in the 1930's. A 1932
Lucky Strike ad asked: 'What's there to be afraid of?' Old Gold developed a familiar
slogan: 'Not a Cough Smoke Camels.' Wegman, supra at 678-688.
The campaign achieved striking success.
Annual cigarette consumption per person (for those over 18 years old) rose from
138 cigarettes in 1910 to more than 1,800 in 1940, peaking at more than 4,200
in 1963. Newsweek, Jan. 18, 1965, quoted in Wegman, supra, at 679.
This spiraling consumption was spurred on
by the effective use of the most devastating merchandising tool ever fashioned
by man -- the television spot advertisement.
We must recognize the unusually powerful
impact of spot advertising as compared to normal television programming.
Prepared spot announcements should be placed in a class by themselves, a
proposition acknowledged by F.C.C. Chairman Dean Burch with respect to
political advertising. Voters' Time, Twentieth Century Fund Commission on
Campaign Costs in the Electronic Era, p. 15 (
With the advent of the Surgeon General's
report in 1964 and with the coming of the so-called 'anti-commercial
commercial' to our television screens, carrying the alert that smoking may kill
you, per capita cigarette consumption actually declined for the first time
since the earliest part of the century. Per capita consumption for 1968, the
latest year for which statistics are available, dipped to 4,145. Report to
Congress, Federal Trade Commission, Pursuant to the Federal Cigarette Labeling
and Advertising Act, June 30, 1969, at 4. [FN12] Indeed, the Federal Trade
Commission said the decline during 1967 and 1968 'may be attributable to
anti-smoking messages which appeared on the broadcast media' beginning in 1967,
as well as 'to youth education and the publication in the news media of
information advising of the health consequences of smoking.'
There is little question, then, that this
public education through television had an impact on smoking. Some 40 per cent
of the nation's adult smokers, according to the Gallup Poll, say they smoke
less than they previously did. N.Y. Times, Sept. 4, 1969, at 4. The Gallup Poll
also reported that 71 per cent of adults think smoking is a cause of lung
cancer. Far fewer, 44 per cent, held this view in the last survey on the
subject in 1958.
If the effect of the health messages in
the past few years is any guide, whether anti-smoking spots continue to be
broadcast will significantly affect the sale and consumption of billions of
cigarettes and the smoking habits of millions of Americans (particularly young
people) over the next few years.
Even so, for an industry that is widely
thought to be in trouble, tobacco manufacturers today are showing remarkable
strength. [FN13] Tobacco profits have been climbing, despite the health
controversy. Total sale of cigarettes in the U.S. in 1970 have been rising
somewhat after three years of decline, and a tobacco analyst for a Wall Street
brokerage house predicts a 'new surge of growth' for the cigarette business in
the 1970's. U.S. News & World Report, Nov. 30, 1970, at 68.
Given these facts about the public health
hazard of smoking and television's role in molding public acceptance and
awareness, Congress and the courts appear to have imposed a duty on
broadcasting to treat smoking akin to a public epidemic -- comparable, perhaps,
to the plagues of ancient times. In fact, this awareness of the public epidemic
proportions of the problem spreads well beyond broadcasting. E.g., Cigarette
Ads May Soon Begin Fading Away In Papers, Magazines as Well as on TV, Wall St.
J., Sept. 5, 1970, at 4, col. 1; Nixon Backs Move to End TV, Radio Cigarette
Ads, Wash. Post, Oct. 10, 1969, at 3, col. 2; Some Eye U.S. Building Smoking
Ban, Washington Post, Jan. 19, 1971 at D-13, col. 5.
IV
The affirmative duty of the broadcaster
to continue airing health alerts on smoking well after the Jan. 2, 1971,
cut-off date for cigarette advertising rests firmly on a public interest
rationale which has been well articulated in previous commission and court
precedent and in the Congressional intent undergirding the 1969 Public Health
Cigarette Smoking Act.
My main intent here is to set out this
public interest rationale in all its detail for the record. Furthermore, I want
to develop two supporting considerations that substantially buttress this
affirmative obligation: (1) the decades of blatantly one-sided, pro-smoking
presentations, which I have already alluded to above; and (2) the danger 'hidden
commercials' on television hold for subverting the public health community's
attempt to spread the warning.
A. Public Interest Rationale. -- While
the majority goes to some length to set out the public interest rationale, I do
not believe the language of the precedents has been given the dynamic
interpretation it deserves.
We are used to discussing the cigarette
issue in the context of the Fairness Doctrine. Nevertheless, a close inspection
of the applicable precedents shows that the issue we decide today goes
substantially beyond any Fairness Doctrine questions to what is appropriate,
quite aside from the Fairness Doctrine, under the public interest scheme of our
governing statute.
The best example is the language the
Commission itself used in the Conclusion section of the 1967 opinion, 9 F.C.C.
2d at 949, affirming the station's obligation to provide time for the
anti-smoking point of view:
There is we believe, some tendency to miss the
main point at issue by concentration on labels such as the specifics of the
Fairness Doctrine or by conjuring up a parade of 'horrible' extensions of the
ruling. The ruling is really a simple and practical one, required by the public
interest.
In affirming this Commission action, the U.S. Court of Appeals (D.C. Cir.)
clearly noted that its decision was grounded on a public interest standard and notthe Fairness Doctrine.
Banzhaf v. F.C.C., 405 F. 2d. 1082(D.C.Cir.1968). The Court said the Commission itself 'asserted that it 'clearly had the
authority to make this public interest ruling' under the public interest
standard of the Communications Act and relied upon 'the licensee's statutory obligation to operate in the public interest.''
The Court of Appeals used unusually
strong language in articulating 'a kind of basic law' in the public interest
(at 1096-1097):
Whatever else it may mean, however, we think the
public interest indisputably includes the public health. There is perhaps a
broader public consensus on that value, and also on its core meaning, that on
any other likely component of the public interest. The power to protect the
public health lies at the heart of the states' police power. It has sustained
many of the most drastic exercises of that power, including quarantines,
condemnations, civil commitments, and compulsory vaccinations. Likewise, public
health concerns now support a sizable portion of the civilian federal
bureaucracy. The public health has in effect become a kind of basic law, both
justifying new extensions of old powers and evoking the legitimate concern of
government wherever its regulatory power otherwise extends.
Despite argument of industry alarmists to the contrary, this basic public health principle is fully consistent with the dictates of the First Amendment.
'Because of the scarcity of radio frequencies,' the U.S. Supreme Court said in Red
Lion Broadcasting Co. v. F.C.C., 395 U.S. 367
(1969), 'the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium.... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.' Red Lion, supra, at 390 (emphasis supplied).
The Supreme
Court has drawn a distinction between two types of speech: the first, political
or social speech, is entitled to the fullest constitutional protection. Indeed,
Professor Harry Kalven believes the 'central meaning of the first amendment' is
to preserve the citizen's right to criticize those who govern for him. Kalven,
The New York Times Case: A Note on 'The
The second type
of speech, 'commercial' speech, however, has not been viewed as worthy of much
deference. 'In the quarter century since Valentine v. Chrestensen [316 U.S. 52
(1942)], the notion that commercial advertising is not protected by the first
amendment has been enshrined among the commonplaces of constitutional law.'
Note, Development in the Law: Deceptive Advertising, 80 Harv. L. Rev. 1005,
1027 (1967); see, e.g., Ginzberg v.
Indeed, the
Court in Red Lion (id. at ) appeared to contemplate strong public interest
obligations inherent in the broadcasters' fiduciary trust quite aside from any
First Amendment or Fairness Doctrine considerations:
There is
nothing in the First Amendment which prevents the Government from requiring a
licensee to share his frequency with others and to conduct himself as a proxy
or fiduciary with obligations to present those views and voices which are
representative of his community and which would otherwise, by necessity, be
barred from the airwaves.
Although this language is most relevant to the newly evolving concept of 'access,' it is supportive of the broadcasters' obligation to present public health information as well.
B. Failure in Balancing Views. -- The
majority has not adequately dealt with the residual effects of more than half a
century of cigarette advertising, much of it over television during the past 20
years. The familiar Madison Avenue pitch for cigarettes has been a permanent
fixture on the American scene. The consumer has been deluged for decades with
the enticements of glamour and excitement, the promise of sexual prowess, the
allure of social acceptability, the invocation of the ethic of masculinity, and
the reassuring appearance of well-known celebrities to intone the blandishments
prepared by public relations specialists.
This inculcation has taken its
toll.Cigarette advertising, as it has developed since 1913, has succeeded in
addicting the American public on a mass scale -- and the public simply has not
been educated in any balanced sense on the dangers inherent in the normal use
of the product.
The Commission
majority fails to recognize the residual harm of this advertising barrage. The
majority believes there is 'no showing' that 'prior decades of cigarette
advertising call for something beyond this recent, three-years substantial
effort.'
In actuality, the public health warnings
over the nation's broadcast media have come nowhere near parity with the
ubiquitous prosmoking view. First, there have been only three years of
concerted health alerts to counter nearly three decades of cigarette
broadcasting advertisements. Second, these health alerts have been aired
nowhere nearly as often as the industry sales pitches. During January 1969, for
instance, each American saw on the average 4.4 network cigarette advertisements
for each single anti-smoking message that he saw on network television.
Teenagers were exposed on the average of 4.1 network cigarette advertisements
for each network health alert to which they were exposed. Report to Congress,
Federal Trade Commission, supra, at p. 31.
What's more, once broadcast cigarette
advertisements cease, the pro-smoking view will hardly disappear from sight.
There is ample reason to believe that the advertising assault will continue
unabated in magazines, newspapers, billboards, and an infinite variety of other
commercial display techniques, including so-called 'hidden ads' on television
itself. [FN14]
Little wonder the Court of Appeals in
Banzhaf v. F.C.C., supra, at 1099, went out of its way to stress the importance
of broadcasting in effectively spreading the cigarette health warnings:
In these circumstances, the Commission could
reasonably determine that news broadcasts, private and governmental educational
programs, the information provided by other media... inadequately inform the
public of the extent to which its life and health are most probably in
jeopardy. The mere fact that information is available, or even that it is
actually heard or read, does not mean that it is effectively understood. A man
who hears a hundred 'yeses' for each 'no,' when the actual odds lies heavily
the other way, cannot be realistically deemed adequately informed. (Emphasis
supplied.)
The Court clearly contemplated a consistent, concerted, long-term effort on the
part of the trustees of our airwaves to effectively bring the public health
warnings on cigarette smoking into the consciousness of the general public.
Only radio and television can truly accomplish this public education goal, and
the Court obviously recognized these essential facts of life.
Furthermore, Congress itself recognized
these same essential facts of life. The prime purpose behind the Public Health
Cigarette Smoking Act of 1969 is 'to provide adequate warning to the public on
the hazards of cigarette smoking....' Senate Report No. 91-566, 91st Cong.,
supra, at 1.
A close study of the legislative history
of the Act as reflected in the testimony, deliberations, and report of both
houses of Congress reveals that there was no intent in Congress to terminate or
lessen the obligation of the broadcaster to provide substantial free time for
the airing of the smoking health messages.
In fact, the Federal Communications
Commission in a letter to the Senate Commerce Committee dated September 17,
1969, see F.C.C. 69-1011 and Hearings on H.R. 6543, supra, at 143, advised the
Congress of this Commission's belief that 'the public interest in view of the
HEW findings is served by a policy of proscribing commercial promotion of this
product [cigarettes] while at the same time informing the public of its hazards
through educational efforts or campaigns.' (Emphasis supplied.)
Thus, this Commission clearly represented
to the Senate committee that health warnings would continue after any general cut-off
of general cigarette promotion over the air. In addition, Senators Moss and
Cotton made frequent favorable references to the anti-smoking spot
announcements, assuming that the massive educational campaign under way over
the broadcast media would not be terminated. See, e.g., Hearings on H.R. 6543,
supra, at 132-133, 159-160, 164-165. What's more, nine Senators on the Senate
Commerce Committee (Senators Magnuson, Pastore, Hart, Cannon, Moss, Long,
Inouye, Tydings, and Goodell) clearly believed the Act did not go far enough to
effectively inform the public of the cigarette health hazard. 'The committee's
warning would thus be adequate only if the public generally understood that all
cigarette smoking is excessive,' these Senators wrote. 'But because the public
has not yet arrived at such a level of sophistication, the committee's warning
will necessarily function as a misleading half-truth.' Senate Report No.
91-566, supra, at 19-20.
Finally, Congress clearly intends to keep
itself fully informed on the broadcasters' efforts to keep on informing the
public of the smoking peril. In section 8(b) of the 1969 Act, Congress has
instructed the Trade Commission to provide continuing reports on how the
broadcasters are effectively educating the public. Specifically, the F.T.C.
report to Congress will include '(1) the effectiveness of public service
smoking education campaigns in broadcast and nonbroadcast media;'... and '(6)
an analysis of public opinion polls and other relevant information indicating
the extent to which the American public, especially young people, have been
made fully aware of the hazards of smoking....' Senate Report No. 91-566,
supra, at 11.
In short, Congress specifically
contemplates the continued broadcast of smoking alerts in sufficient volume to
keep the general public, and the generations of young coming of age every day,
fully appraised of the national smoking epidemic. And the implication seems
clear that if the broadcasting industry does not heed the Congressional intent
or ignores its Red Lion obligations, Congress may consider specific legislation
to see that the public continues to be adequately informed. Cf., id. at 11-12.
C. The Hidden Commercial. -- The majority
argues that there is no showing of the 'bare claim' that tobacco and smoking
will continue to show up in 'hidden advertising.'
Nevertheless, the simple fact remains
that despite the January 2, 1971, cut-off smoking will continue to be shown on
American television in thousands of subtle, flattering ways. The star in the white
hat will continue to draw contentedly on his cigarette, and for the millions of
American youngsters tuned in there will be no Surgeon General's warning --
'Caution: Cigarette Smoking May Be Hazardous to Your Health' -- to counter this
latent but potent power to mold tender attitudes. Ads on TV May Vanish, But Not
Cigarettes, N.Y. Times, Dec. 31, 1970, at 41, col. 4.
Chairman Magnuson of the Senate Commerce
Committee is already worrying about the television ploys the tobacco industry
may try after the cut-off. In a letter to the Federal Trade Commission, see,
Letter of Chairman Magnuson to FTC Chairman Kirkpatrick, Broadcasting magazine,
Nov. 23, 1970, at 46, the Senator noted that American Tobacco Co. is marketing
three pipe tobaccos named interestingly enough
The advertising and tobacco fraternities
are not well known for their high ethical standards. [FN15] I share Senator
Magnuson's lack of confidence that the industry will walk the final mile to
ensure the complete integrity of the public health. After all, the pressures on
tobacco men sometimes lead to something more than the simple desire to market a
completely acceptable product. Late last year, for example, the business press
reported that one tobacco company 'boosted the nicotine of most of its brands.'
The idea was to 'hook' smokers so that if advertising were to be banned
entirely, the 'need for a smoke' would keep people puffing. Business Week, Dec.
13, 1969, at 84. Cf., N.Y. Times, Dec. 14, 1969, at 43.
V
Finally, there is a pernicious argument
abroad in the debate here, one implicit in the majority's language though not
expressly dealt with, which needs to be put to rest once and for all. The
unstated premise from which the majority proceeds might be called the 'Hit
Parade' argument. It goes like this. If the Commission decrees that all
licensees must carry warnings dealing with the smoking hazard, persons holding
strong views on many other issues inevitably will seek access to the
Commission's 'Hit Parade,' and the Commission will find itself in the
unfortunate position of deciding which issues are important and which are not,
thus assuming the very role of arbiter of programming which the Commission has
always disclaimed.
This argument is raised, but not really
addressed, again in this case. 'The Commission cannot properly compile any
priority list,' the majority argues. 'We have not done so, and have no
intention of issuing a list of 'must' issues.' See Majority Opinion at para.
17, supra. This is the customary and familiar boilerplate recitation that this
Commission will defer to the licensee's judgment so long as it is 'reasonable.'
Yet obviously, at some point, this
Commission must decide that a licensee is wrong in his determination of what
the public interest requires, and I do not see how we can do this unless we
substitute our judgment for the licensee's. Whatever may be the initial
responsibility of the licensee, some agency must arbitrate competing uses of
our scarce national airwaves -- and that task has been assigned to the Federal
Communications Commission, with review by the courts.
In any case, the majority treats this
'throwaway' language precisely for what it is -- a useless appendage inserted
routinely in Commission opinions -- and proceeds to make its own, independent determination
anyway: 'We also note our full agreement with the proposition that which public
service subjects are to be covered and how is for the licensee's judgment,
based on its evaluation in light of the competing public service demands.'
Despite this Commission's denials,
nevertheless there does indeed exist a Hit Parade list -- and cigarette smoking
is firmly entrenched at the very top.
Who has created the list -- and put
cigarettes at the top? It is important to recognize that what issues gain access
to this list and why is basically beyond the licensee's and this Commission's
powers in some cases. This is uniquely so in regards to smoking.
The President, the Congress, and numerous
public studies and bodies have defined cigarette consumption as an addictive
menace to the national health -- a menace of epidemic proportions. The majority
itself cites much of this evidence.
It is curious, to say the least, that
this Commission on occasion sometimes embraces and at other times denies the
'unique' problem cigarettes present. The majority today appears to deny the
unique demands the smoking epidemic makes on a broadcaster. On other occasions,
e.g., Friends of the Earth, 24 F.C.C. 2d 743, 746 (1970), the majority has
relied heavily on cigarettes 'uniqueness' to escape what it considers
bothersome public interest requirements regarding other commercial products. In
addition, the Commission's denial today that the unique problem cigarettes
presents requires unique treatment by the broadcasters cuts squarely against
contrary language in Banzhaf v. F.C.C., supra, at 1099.
Unlike the majority, I do not fear that a
firm Commission precedent on the cigarette problem will stampede the industry
or the Commission onto a slippery slide leading to the application of the
anti-commercial commercial concept across the board to the whole range of mass
merchandised products. Right now the overwhelming scientific indictment of the
cigarette has no parallels save for a handful of possible exceptions. E.g.,
Friends of the Earth, supra at 752.
As the broadcasting industry itself has
acknowledged, Broadcast Cigarette Advertising Report, unpublished report of The
Code Authority, National Association of Broadcasters, September 1966, and
Statement of Warren Braren, Draft Report of Proceedings, Hearings of the Comm.
on Interstate and Foreign Commerce, House of Representatives, Cigarette
Labeling and Advertising, June 10, 1969, at 11:
Cigarettes, and
the advertising thereof, present a unique situation....
The argument that automobiles or other
products likewise are capable of causing serious injury appears to be an
invalid comparison. In the case of automobiles, there exist recognized
standards of safety for driving which minimize the risk of accidental injury.
As for smoking, no such clear-cut standards exist, and potential harm to health
is not accidental.
VI
For the reasons outlined above, I believe
the basic principles are deeply engrained in the public health-public interest
standard, which has been recognized by the Congress and affirmed by the Federal
courts. They require the fiduciaries of our public airwaves to exercise their
public trust in an affirmative way that ensures the American listener and
viewer timely reminders and continuing education on the perils of the smoking epidemic.
APPENDIX A
BROADCASTERS OF
BROADCAST ASSOCIATIONS SUBMITTING COMMENTS IN DOCKET NO.
19050
American Broadcasting Companies, Inc.
Columbia Broadcasting System, Inc.
Corinthian Broadcasting Corp.
Gill Industries
Idaho Broadcasting Company
Joint comments:
Leake TV Inc.
Hubbard
Broadcasting, Inc.
Rust Craft
Broadcasting of New York, Inc.
WMFS, Inc.
Johnny
Appleseed Broadcasting Co.
Independent
Music Broadcasters
WJAG, Inc.
Capitol
Broadcasting Co.
National Association of Broadcasters
National Association of Educational Broadcasters
Metromedia, Inc.
Orion Broadcasting Company, Inc.
Joint comments:
Newhouse
Broadcasting Corporation
Columbus
Broadcasting Co., Inc.
Palmer
Broadcasting Co.
WOC
Broadcasting Co.
North Carolina Association of Broadcasters
Joint comments:
Reams
Broadcasting Corporation
Reams
Communications Corporation
Time-Life
Broadcast, Inc.
WKY-TV Systems,
Inc.
Sandia Broadcasting Corp.
Sonderling Broadcasting Corp.
Storer Broadcasting Company
Tobacco Institute, Inc.
Van Curler Broadcasting Corporation & WLKY-TV
WGAL, Tv, Inc.
WJAC, Inc.
Westinghouse Broadcasting Co.
FN1 E.g.,
Cigarette Advertising, 9 FCC 2d 921 (1967); Metromedia, Inc., 10 FCC 2d 16
(1967); Letter to Mr. Larry Jones, November 2, 1967, 8330-S; C9-1304; Letter to
the Tobacco Institute, Inc., December 21, 1967, Ref. 3300.
FN2 Further, as
we stated in our Notice of Proposed Rule Making in Docket No. 18434, 34 F.R.
1959, 1962, n. 30, the existence of governmental reports does not bar dissent
thereto or the presentation of contrary views.
FN3 Thus, in
his comment in this proceeding, the Surgeon General stated it '... is the view
of the Public Health Service that cigarette smoking, beyond controversy, is indeed
hazardous to health.'
FN4 The Court
then quoted the following statement of this member (id. at p. 1098): Cigarette
smoking is a substantial hazard to the health of those who smoke which
increases both with the number of cigarettes smoked and with the youthfulness
when smoking is started. Cigarette smoking increases both the likelihood of the
occurrence and the seriousness of the consequences of various types of cancer,
of cardiovascular failures and of numerous other pathologies of smokers. These conclusions
are established by overwhelming scientific evidence, by the findings of
Government agencies, and by Congressional reports and statute.... The evidence
on this subject is not conclusive, but scientific evidence is never conclusive.
All scientific conclusions are probabilistic.... Furthermore, law does not and
cannot demand conclusive proof. Even in a capital case, the law requires only
proof beyond a reasonable doubt.... The evidence as to the dangers of cigarette
smoking to the smoker is clearly beyond a mere preponderance and approaches
proof beyond a reasonable doubt.
FN5 If such
abuses do occur, there will be a clear need for immediate and prompt remedial
action. See Letter of Chairman Magnuson to FTC Chairman Kirkpatrick,
Broadcasting Magazine, November 23, 1970, p. 46. However, the appropriate
action in such an eventuality would be to secure full and effective compliance
with the 1969 law, and not to deal with it by offsetting anti-smoking messages.
FN6 The
American Cancer Society comment noted that the Clearinghouse on Smoking and
Health estimates 'that 1,200,000 youngsters will become cigarette smokers in
1970.' The comments of the National Tuberculosis and Respiratory Disease
Association notes that '. #. a recent study by the PHS indicates that there has
been a recent rise in the number of teenagers who smoke.'
FN7 Report of
the Surgeon General's Advisory Committee, Jan. 11, 1964.
The most recent
Surgeon General studies in animals and humans show that the nicotine in
cigarettes increases the work of the heart and that smoking thus increases the
risk of fatal heart attacks. The Surgeon General's Report on The Health
Consequences of Smoking (1971); see, Cigarettes Linked to Heart Ills,
Washington Post, Jan. 26, 1971, at A-3, col. 5. The report said that while
other factors (including diet, obesity and high levels of blood fats) are
closely linked to heart attacks, the Surgeon General concluded that cigarette
smoking is an independent cause that can accelerate other risks. The Report
also concludes that pregnant women who smoke have more unsuccessful pregnancies
than women who do not smoke.
FN8 29 Fed.
Reg. 8325, 15, 570 (1964).
FN9 See Note 6,
infra.
FN10 Senator
Moss has summed up the scientific indictment:
Let us look
once more at the enormity of the indictment lodged against the cigarette. The
Public Health Service reports concerning the effects of smoking on human life
and health have been increasingly ominous. Who, among us, is not familiar with
the first of these reports, the Surgeon General's Report on Smoking and Health
which came out in 1964. This was the first time the Federal Government had come
out vigorously against a national habit -- one that had become deeply ingrained
in the fabric of our lives by practice and by the sheer force of advertising.
The evidence is
damning: All cigarette smokers have a 70-percent higher death rate than
nonsmokers; they have a 70-percent higher death rate from coronary heart
disease; a 500-percent higher death rate from bronchitis and emphysema; and a
1,000-percent higher death rate from lung cancer.
We know today
that one-third of all deaths among men in the age group 35 to 59 -- in the very
prime of life -- are excess deaths which would not have occurred if it were not
for cigarette smoking.
Senate Report
No. 91-566, Public Health Cigarette Smoking Act of 1969, 91st Cong., 1st Sess.,
at 21-22.
FN11 'The
emphasis on controlling the content of cigarette advertising rather than the
sale of cigarettes themselves is an indication of the power that advertising
has attained in American society, particularly advertising for products that,
like cigarettes, have no useful external function but that come under the
merchandisers' category of 'pleasure products,' the need for which is
essentially subjective. Such subjective needs are capable of being aroused and
maintained on a socially acceptable scale with the help of advertising. Fifty
years ago in this country advertising was a mere adjunct to the selling of
consumer goods; nowadays it lies at the core of the whole merchandising and
consuming process.' Annals of Advertising, The New Yorker, Dec. 19, 1970, at
42.
FN12 Per capita
consumption of cigarettes, Report to Congress, Federal Trade Commission,
Pursuant to the Federal Cigarette Labeling and Advertising Act, June 30, 1969:
Year: 1963, 4,286; 1964, 4,196; 1965, 4,196; 1966, 4,197, 1967, 4,175; 1968,
4,145.
FN13 In late
1970, the first time since 1967, when the FCC first required the presentation
of American Cancer Society spots under the Fairness Doctrine, cigarette sales
increased over the previous year. An unprecedented advertising push on the eve
of the Congressionally ordered television ban on cigarette advertising helped
end a two-year sales slump for the tobacco manufacturers. A Bright Spark for
Cigarette Makers, Business Week, Dec. 26, 1970, at 64.
FN14 One
tobacco company executive believes good marketing programs, coupled with less
anti-smoking announcements, will help the cigarette industry offset the ban on
cigarette advertising on radio and television. Milton E. Harrington, president
of Liggett and Myers, Inc., told securities analysts: 'The ban on broadcast
advertising is not likely to have a major impact on cigarette sales, with the
probability of many less anti-smoking messages on radio and TV, good marketing
programs should enable the industry to overcome this setback. A case in point
is the alcoholic beverage industry, which has never advertised on television
but nevertheless continues to grow substantially while introducing new brands
and opening new markets.' United Press International Report No. 164,
Much of the
$225 million the cigarette industry spent annually on broadcast advertising is
expected to go into wider newspaper, magazine, billboard, and sports
advertising. 116 Cong. Rec. S21606-S21607 (Daily Ed. Dec. 31, 1970).
FN15 Chairman
Dean Burch had to summon the tobacco manufacturers as well as the broadcasters
to his office to get assurances that the industries would comply with the
spirit as well as the letter of the Congressional ban. Cig-Makers Tell FCC They
Won't Use Smokescreen To Get Around Ban, Variety, Jan. 13, 1971, at 40.