History of Tobacco Regulation - The Ban on Advertising

Both the U.S. Public Health Service and Federal Trade Commission have annually reported findings to Congress since passage of the cigarette labeling law. The FTC recommended that the Act should be amended to: "Warning: Cigarette Smoking Is Dangerous to Health and May Cause Death From Cancer and Other Diseases."

Additionally, the FTC recommended legislation to require the same warning to appear in all cigarette advertisements and to require statements of tar and nicotine content on all cigarette packages and in all advertising.

Legislation to accomplish these objectives as well as the following were recommended by the FTC:

Cigarette advertising on television and radio should be barred entirely. Alternately, cigarette advertising on television and radio should be limited as to hours in which it may appear; the extent to which it may appear; and the types of programs on which it may appear;

Increased appropriations, should be made to the Department of Health, Education, and Welfare for education of the public (especially young people) as to the health hazards of smoking;

Appropriations should be made for research under the direction of the National Institutes of Health on the development of less hazardous cigarettes.

"By 1969, the stage had been set for a showdown over cigarette advertising and promotion" (Wagner, 1971: 190). The U.S. Government was increasing its efforts to discourage the sale of cigarettes. Post office trucks carried posters: "100,000 Doctors Have Quit Smoking."

The Surgeon General continued to release reports about the adverse health effects of smoking.

Dr. Daniel Horn, director of the National Clearinghouse for Smoking and Health, was urging doctors to deliver antismoking appeals to patients in their offices.

Movie personalities had become involved in the American Cancer Society's campaign called I.Q. (for "I Quit") that passed out lapel buttons and dispatched public speakers around the country to discourage the habit. Doris Day, Debbie Reynolds and Lawrence Welk refused to allow tobacco companies to sponsor their TV shows.

Two ad agencies--Ogilivy and Mather and Doyle Dane Bernbach-and a few radio and television stations would not accept cigarette business. Several magazines did not accept cigarette advertising as a matter of principle: Reader's Digest, the New Yorker, and the Saturday Review. The Christian Science Monitor had never carried cigarette ads; the Boston Globe announced in May, 1969 that it would no longer accept such advertising "because accumulated medical evidence has indicated that cigarette smoking is hazardous to health" (Wagner, 1971: 220).

In April 1969, a few weeks before the House Interstate and Foreign Commerce Committee was scheduled to open hearings on the FTC proposals, a series of bills were introduced in the House by representatives of tobacco producing states. One such bill, H.R. 7177, co-sponsored by all eleven of North Carolina's House Delegation, proposed "to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health."

Identical measures were introduced under the sponsorship of congressmen from Virginia, Maryland, Kentucky, and Florida. Some accounts of the activity on Capitol Hill during this period attribute these bills to the tobacco interests' intention "to prevent strengthening of the warning label and make permanent the ban on state and Federal regulation of cigarette advertising, which was due to expire on June 30. Passage of this legislation was the best tobacco interests could have hoped for under the circumstances" (Wagner, 1971: 205).

After testimony from both sides, the House Committee approved a stiffer health warning but prohibited regulatory action on cigarette advertising for six years and in other ways generally upheld the status quo.

The Senate, Commerce Committee, on December 5, 1970, voted out a bill banning cigarette commercials from the air as of January 1, 1971. The FTC was prohibited from acting on cigarette ads in newspapers and magazines until the middle of 1972. The labeling provision in the Senate bill was weaker than that established in the House-voted measure, and the bill also precluded cigarette regulatory action by the fifty states and local governments.

In a session on December 12, a floor amendment was introduced which loosened the Committee's proposed restriction on the FTC by allowing the agency to require health warnings in advertising as of July 1, 1971. The bill also authorized the FTC to move sooner if it found that tobacco companies were switching from broadcast to print advertising so massively that it could be considered a " gross abuse." This bill also approved a new required health warning for cigarette packages"Warning: Cigarette Smoking Is Dangerous to Your Health."

After Senate passage, the measure still had to -pass a joint Senate-House Conference Committee where important differences between the two bills had to be reconciled.

The bill that emerged from conference differed only slightly from the Senate measure. The cautionary label to which the conferees agreed provides: "Warning: The Surgeon General Has Determined That Cigarette Smoking is Dangerous to Your Health." "In a final concession to the broadcasters, the conferees agreed to delay for one day the blackout of cigarette commercials from December 31, 1970, to midnight January 1, 1971. That would give them a last shower of cash from the New Year's Day football bowl games" (Wagner, 1971: 216). It was estimated that the loss to television and radio stations would amount to about $220 million a year, or about 7.5% of their total advertising revenues.

President Nixon signed the Act on April 1, 1970.

Some observers marvel that the bill was passed "in spite of massive pressure that had been brought to bear against it and against the regulation of cigarette advertising generally, by the tobacco industry, the broadcasting industry, and the lobbyists and their political allies. This was a combination that for years had proved invincible against a counterforce of scientists and public health and public interest advocates who, armed with formidable statistics on the damage to health and life caused by cigarette smoking, had sought to protect consumers by requiring all cigarette advertising to provide adequate warnings of these dangers" (Whiteside, 1970: 58).

There are those observers , on the other hand, who do not view the ban of cigarette advertising on television and radio as such a success for the consumer. Rather, they cite the statistics on consumption in other countries to point up the fact that bans on advertising do not reduce sales.

In Czechoslovakia, for example, no direct advertising of tobacco is permitted; yet consumption increased 14% between 1953 and 1958. Advertising of foreign cigarettes was banned in 1962 in Italy; the following year sales increased 39.4% and in 1964, 11.7 %. Sales increased in England after television cigarette advertisements were banned in 1965. Consumption figures for the following three years in Britain reveal increases: 112 billion cigarettes in 1965, 118 billion in 1966; and 119.1 billion in 1967 (Cigarette Advertising, 1970: 113-114).

Robert Miller, an agricultural economist in the Department of Agriculture's Economic Research Service, reports that cigarette consumption is up in every part of the world although advertising was banned in several European countries some years ago. He predicts an eventual decrease in sales during the next five years and perhaps a 12-13% decrease in tobacco consumption (Tobacco Advertising Could End, 1970: 7).

Other observers can see a gradual reduction in cigarette consumption as a result of a prohibition on advertising; some feel a ban on advertising merely makes it difficult to launch a new brand. Others predict that the ban will eliminate the social acceptability of the habit although consumption will not go down.

The "live dangerously novelty" has also been identified as a possible cause for gains in consumption; "such a philosophy might well be prevalent among the young, the very ones that antismoking advocates are most anxious to protect" (Cigarette Advertising, 1970: 112-113).

Another consequence of the ban on cigarette commercials was the FCC ruling that the broadcasters' obligation to air antismoking messages had ended. The stations continue to run them as public service spots; however, the volume was decreased considerably from the former 1 to 3 ratio established by the FCC. The antismoking forces are fearful that a decrease in these spots is harmful to their cause and may retard their efforts to reduce cigarette consumption.

On October 20,1971, a U.S. District Court ruled that the Congressional ban on cigarette advertising is constitutional. The ruling stated that such advertising does not qualify under the First Amendment's guarantee of freedom of speech; a sharp distinction was drawn between guarantees of freedom. of speech for individuals and the "limited extent" to which broadcast advertising qualifies for such protection.

The court also ruled that Congress had more than one "rational basis" for excluding cigarette ads from television and not the printed media one being that broadcasts are the "most persuasive" types of advertising (Cigarette Ad Ban, 1971). Ultimately, the constitutional question will have to be decided by the United States Supreme Court.