National Commission on Marihuana and Drug Abuse

History of Tobacco Regulation*

*This section is based in part on a paper prepared for the Commission by Jane Lang McGrew, an attorney from Washington, D.C.

Since 1613, when John Rolfe introduced a successful experiment in tobacco cultivation in Virginia (Morison, 1965 : 52) the leaf has assumed major social, industrial, economic and medical implications. Consequently, persons concerned with tobacco on a commercial or personal basis have been subject to a variety of different regulations over the past 360 years.

Tobacco has been attacked by social observers and medical authorities for the damage it has allegedly done, to the social and physical condition of man. Yet it has also provided a substantial source of revenue to the state and Federal governments of the United States.

As is now the case with alcohol, tobacco has long been subject to regulatory controls over the quantity and quality of production. On the other hand, sumptuary laws affecting tobacco have been far fewer-and weaker-than those aimed at alcohol. In fact, there has never been a time when tobacco was prohibited throughout the United States although consumption under certain circumstances has been forbidden at various times in different jurisdictions.

Tobacco-associated today with smoking of cigarettes, and to a lesser extent, of pipes and cigars-has been popular at times for both snuffing and chewing. Indeed, until about 1870 cigarettes were relatively rare in the United States, and almost all tobacco consumed domestically was chewed during the mid-19th century (Gottsegen, 1940: 9-10).

What ever the preferred mode of consumption, however, the, commodity has always been the subject of debate respecting the appropriate governmental attitude. On the one hand, proponents of the leaf stress its social benefits and its economic and industrial significance. Some enthusiasts even endorse its alleged medical and psychological benefits. Opposed are those who cite the health hazards of smoking and others who are convinced of its immorality.

The motivation for regulation has come from both sides of the controversy. Most sumptuary restrictions were fostered by the latter group in an effort to suppress the habit. Those who seek to institutionalize and foster use of the drug focus on the regulation of the quantity and quality of production.

This section does not attempt to weigh the merits of the various regulatory schemes. Rather, it will trace from John Rolfe's day the three threads of regulation which have circumscribed both the producer and consumer of tobacco in the United States.

REGULATION OF PRODUCTION

In the opinion of King James I of England, tobacco was "loathsome to the eye, hateful to the nose, harmful to the brain" and "dangerous to the lungs" (Middleton, 1953: 93). Whether the King was prescient, or simply sensitive, was irrelevant in the 17th and 18th centuries, however, for tobacco rapidly became the mainstay of the Maryland and Virginia economics. Within seven years of John Rolfe's first imaginative experiment,, Virginia exported nothing but tobacco and a little sassafrass to England (Middleton, 1953: 93-94). Almost as quickly, the leaf became the staple of the colony of Maryland and competition developed in Carolina as well.

In Massachusetts Bay, the product fared less well. The first general letter (April 17,1629) from an official of the New England Company to the Massachusetts Bay settlers prohibited the planting of tobacco except in small quantities for medicinal purposes (Werner, 1922: 100). Next door in Connecticut, however, the colonists attempted to rival the southern planters with a local leaf. Indeed, the infant industry was coddled by the protectionist General Court at New Haven, which promulgated a rule in 1641 that:

No persons within this jurisdiction shall [smoke] any other Tobacco but such as is or shall be planted within these [districts], except they have license from the Courte (Tobacco Institute, Connecticut, undated: 20).

Notwithstanding the royal attitude and the fear of certain patent holders of the London Company that Virginia had become a "colony founded on smoke" (Tobacco Institute,, Virginia, 1971 : 19; Middleton, 1953: 94), England encouraged the growth of the tobacco industry. Monopolies to import tobacco from the colonies were granted by the Crown to court favorites who soon prospered as a result of this trade.

In 1621, a bill was introduced which, according to one contemporary commentator, was "extremely remarkable": No tobacco was to be imported after the 1st of October, 1621, except from Virginia and Bermuda; and, after that day, none was to be planted in England. Although the act was initially defeated by the House of Lords, James I in 1922 himself granted the import monopoly to the Virginia and Bermuda, companies and prohibited the domestic cultivation of tobacco (Brooks, 1952: 88).

The system worked well for the British importers, but the methods of financing they employed became onerous to the colonial planters. The tobacco was marketed by consignment to an English merchant who deposited the proceeds of the sale to the planters' accounts. Often, however, the high commissions charged and the cost, of goods ordered by the Virginians in payment for their crop contributed to the growth of colonial indebtedness. The extension of credit to cover the deficiencies caused the debts to grow constantly, but the only alternative to the consignment system was to sell the product in the colony at a lower price (Middleton, 1953: 104-107).

Industrial competition in this market provided the impulse for certain regulatory relief. Importation of the Carolinian product into Virginia was forbidden by an act of 1679, amended in 1726 to prohibit importation by land as well as by sea. Nor was North Carolina permitted to export its tobacco from Virginia ports. In Great Britain, the Privy Council looked with disfavor upon such colonial legislation which threatened the financial well-being of the merchants and so disallowed the Virginia Act in 1731 (Middleton, 1953: 114-115).

Competition similarly induced both Virginia and Maryland to enact laws prescribing the dimensions of the hogshead in which tobacco was packaged in 1658. Vying for purchasers, the two colonies gradually enlarged the statutory size of the hogshead until, under edict from the Privy Council in Britain, Maryland was ordered to pass a gauge act establishing the size of the hogshead in the same dimensions as those fixed in Virginia.

Notwithstanding such legislation, however, the manufacture of hogsheads was still characterized by carelessness and irregularity until the warehouse inspection system went into effect in the 18th century (Middleton, 1953: 116-117).

It was not long before the colonial planters were faced with a more serious problem-overproduction-which was causing a decline in prices as well as quality of the leaf. In 1619, the first tobacco inspection law was passed by the Virginia House of Burgesses, ordering the lowest grade of tobacco to be destroyed and prohibiting "second growth" tobacco and the marketing of trash leaves.

This act was followed in 1621 by a more direct attempt to restrict production. Each cultivator was required to limit his growth to 1000 plants of nine leaves each. Although this order was soon rescinded as a patent failure, an act of 1629 permitted each planter to tend only 3000 plants with an additional allowance of 1000 for non-laboring 'women and each child (Brooks, 1952: 96).

Notwithstanding the statutory effort, the problem intensified. Virginia attempted to encourage the other tobacco colonies to reach agreements restricting plantings, but in Maryland, Lord Baltimore resisted. If planters were poor, he asserted:

It is not from the low price of Tobacco, but from their owne sloth, ill husbandry and profusely spending their croppe in Brandewine, and other liquors (Robert, 1949: 11).

Carolina, Maryland and Virginia actually reached a decision to prohibit the planting of the staple from. February 1667 to February 1668. This "stint" proved a less effective means of control than the winds of 1667, which almost destroyed the, crop ready for harvest that year (Tobacco Institute, Virginia, 1971: 19).

Acts of God failed to provide an ultimate solution, however, and severe economic dislocation in Maryland and Virginia intensified. By 1681, the Virginia governor, Lord Culpeper, complained:

... [T]hat which is more to us than all other things put together, and will be the speedy and certain ruin of the colony, is the low price of tobacco. The thing is so fatal and desperate that there is no remedy; the market is overstocked and every crop overstocks it more. It is commonly said that there is tobacco enough now in London to last all England for five years.... Our thriving is our undoing, and our purchase of negroes, by increasing the supply of tobacco, has greatly contributed thereto (Brooks, 1952: 112-113).

The failure of the Virginia Assembly to pass another act requiring a "stint"' led the so-called "cutters and pluckers" to take the matter into their own hands in 1682 by burning both their own crops and the plants of their neighbors (Roberts, 1949: 11). The riot stimulated legislative action in 1684 of a less helpful sort: the destruction of tobacco was made a criminal offense,, subject to the death penalty (Brooks, 1952: 12).

Seventeenth century quality control laws proved no more successful in the effort to relieve the depression of the industry. Renewed efforts were made in early years of the next century, however.

In 1713, the Virginia House of Burgesses established a warehouse system to enforce tobacco inspection. Forty public warehouses were created. Strong opposition to the system led the Privy Council to disallow the act In 1717, but the ensuing depression of the 1720's was convincing evidence of the need for relief. Accordingly, the system was reinstated with British approval in 1730, cornplete with public warehouses and official inspectors (Middleton, 1953: 120-121).

The apparent success of the system appealed to Maryland, suffering also from a surfeit of tobacco. "Tobacco, our money, is worth nothing wrote one Marylander in 1724, "'and [there is] not a Shirt to be had for Tobacco this year in all our country" (Tobacco Institute, Maryland, 1971: 21).

Tobacco riots ensued when the Mary] and Assembly initially refused to follow Virginia's example. One individual was moved to inform Lord Baltimore that no improvement in the economic state of the colony was possible until inspection laws were passed that "will prevent the sending to Market Such trash as is unfit for any other use but Manure" (Tobacco Institute,,, Maryland, 1971: 23). Accordingly, Maryland followed Virginia in the creation of an inspection system in 1747,and Carolina did likewise in 1754 (Brooks, 1952: 165).

Tobacco entirely dominated the economic and social structure of Virginia and Maryland. "Tobacco requires us to abhor communities or townships," wrote a 17th century governor of Maryland, "since a planter cannot carry on his affairs without considerable elbow room within his plantation" (Brooks, 1952: 98).

In Virginia, tobacco had gained such ascendancy that it was used as money. For example, when, in 1621, a cargo of twelve young women made its way to the colony, each one was valued at 120 pounds of the best leaf (Brooks, 1952: 93). By law, Virginia's ministers were paid in tobacco at 16,000 pounds annually in 1696. The law provided that:

A competent and sufficient provision for the clergy will be the only means to supply this dominion with able and faithful Ministers whereby the glory of God may be advanced,the church propagated, and the people edified (Werner, 1922: 102).

Not until the Option Act was passed by the Virginia Assembly in 1755 could the clergy's fees be paid in either money or tobacco (Brooks, 1952: 167).

The regulation of tobacco in the colonies was devised in response to the industry with the intent to further the prosperity of the planters who dominated the economy. This theme continued to pervade all related regulatory efforts in the tobacco-producing states thereafter, as new practices developed in the marketing of the leaf.

The initial hogshead inspection system gradually gave way to the sale of loose-leaf tobacco by auction. In 1849 the Virginia Code recognized these methods in lieu of the sale of hogsheads of the leaf as provided in the 1730 Act. By 1865, the tobacco auction had completely replaced the earlier marketing techniques in Virginia (Tobacco Institute, Virginia, 1971: 28-29).

More than a half century later Maryland followed suit. In 1939, the loose-leaf auction warehouse system was introduced to replace the hogshead system, and the conversion occurred almost overnight. The practices engaged in are regulated by the Maryland State Tobacco Authority, established in 1947 by law. The Authority itself is supervised by eight representatives selected by the Governor from the producing counties, the University of Maryland, the buyers and the sellers (Tobacco Institute, Maryland, 1971: 9-10).

The Federal Government came to recognize the significance of the tobacco industry in response to state pressures. Accordingly, since 1930, several bills have been enacted to aid the growers.

Enacted in 1935, the Tobacco Inspection Act directs the Secretary of Agriculture to establish quality standards and to designate auction markets (7 U.S.C. 511 (b) and (d)). The following year, the Tobacco Control Act was passed, bestowing Congressional approval upon state compacts which regulate the production of tobacco, and subsidizing the expenses of the state commissions involved (7 U.S.C. 515). Thus, the two elements of initial colonial regulation were preserved: the encouragement of quality and the discouragement of quantity.

The latter objective was further implemented by the Agricultural Adjustment Act of 1938. Since that time, parity payments have been made to tobacco producers:

In amounts which, together with the proceeds thereof, will provide a return to such producers which is as nearly equal to parity price as the funds so made available will permit (7 U.S.C. 1303).

In addition, the Secretary of Agriculture is authorized to set national marketing quotas respecting each kind of tobacco (7 U.S.C. 1312), to apportion the quotas among the states, and to allot the portions among the farms (7 U.S.C. 1314). Penalties are imposed for overproduction (7 U.S.C. 1314).

There is nothing subtle about these measures, of course. Their intent is obvious: to assure the economic stability of an industry which, as of 1960, provided the United States population with more than 150,000,000 pounds of manufactured tobacco for consumption annually (Heimann, 1960: 93), and which provided more than $4.8 billion in taxes in 1971 (USDA, Tobacco Situation, 1971b: 44).

During the same year, growers' gross receipts reached about $900 million (Tobacco Tax Council, 1970: 2), while cigarette sales alone grossed for the manufacturer and seller approximately $5 billion (Tobacco Tax Council, 1970: 53). The commercial motivation is sound enough if considered abstractly. When combined with the revenue incentive, however, it has largely obscured sumptuary controls.

REGULATION FOR REVENUE

Alexander Hamilton's tax package of 1794 proposed the first federal excise taxes upon tobacco products. To the distress of Philadelphia snuff manufacturers (Brooks, 1952: 146), however, the tax was restricted after serious Congressional debate to their product only.

James Madison led the opposition to a general tobacco tax; his views were summarized in the Annals of Congress on May 2, 1794:

As to the subject before the House, it was proper to choose taxes the least unequal. Tobacco excise was a burden the most unequal. It fell upon the poor, upon the sailors, day-laborers, and other people of these classes, while the rich will often escape it (Robert, 1949: 100).

The legislative decision was probably tempered as well by considerations of the enforceability of the measure: snuff had to be manufactured, while quid and pipe tobacco were often homegrown leaf at the time (Heimann, 1960: 155). In any case, the snuff bill was ultimately enacted, modified, suspended and repealed, with small, if any, effect upon federal revenues.

The opportunity to distill tax money from tobacco was seized upon more vigorously at the time of the Civil War. On July 1, 1862, an ad valorem tax was imposed upon cigars for the first time. This tax was raised two years later when a separate tax upon cigarettes was also imposed (Werner, 1922: 358). (Even the Confederacy sought to levy a tax-in-kind upon tobacco crops, but was precluded from doing so by the inspection system which required the inspector to deliver the full amount of tobacco specified in the warehouse receipt (Robert, 1949: 117).)

Thereafter, the taxes were raised in 1865, 1866 and 1875. A temporary reduction followed, until the Spanish-American War necessitated further increases. Concurrently, taxes were levied upon smoking and manufactured tobacco and snuff, lest the burden fall unequally upon smokers (Werner, 1922: 559).

By 1880, the tobacco taxes bad largely stabilized. At that time, they accounted for 31% of total federal tax receipts, or $38.9 million. Of this, 50% of the collections was derived from smoking and chewing tobacco, 40% from cigars and cheroots, and less than 2% from cigarettes (Heimann, 1960: 156).

Since that time, federal tax collections on tobacco products have risen almost annually. Between 1910 and 1920, they increased more than 500%, the greatest increase in any single decade. By 1970, they accounted for almost $2.1 billion, down slightly from the two preceding years (Tobacco Tax Council, 1970: 5).

Indicative of changing patterns of consumption, the taxes on cigarettes, as a percentage of the total federal tobacco revenue jumped from 13.6% in 1910 to 51.1% in 1920. By 1970, the percentage at 97.2% far outdistanced those revenues derived from other forms of the product (Tobacco Tax Council, 1970: 5).

Excise taxes have proved profitable and easy to collect. The revenue schemes are simple on both the federal (26 U.S.C. 5701 et seq.) and state levels. In the past, no justification for them has been deemed necessary since Madison's protest. No elaborate licensing or state monopoly system, such as those designed to control commerce in alcohol, has ever been imposed.

In 1921, Iowa became the first state to cash in on the crop directly by taxing cigarettes. By 1930, 11 other states had adopted the revenue measure (Robert, 1949: 256).

In 1950, 40 states and the District of Columbia taxed cigarettes. The rates ranged from one cent to five cents for a pack of 20 except in Louisiana which levied an eight cent tax on cigarettes. In 1958, Montana imposed an equivalent rate.

Between 1950 and 1962, 43 of the 47 taxing states raised their rates at least once. The frequent increase in cigarette taxes narrowed the gap between the rates in low tax states and higher tax states. In the 12-year period, the median tax rate rose from three cents to six cents per pack (Federal Trade Commission, 1970: 3) ; the maximum rate remained at eight cents in Texas, Louisiana, Montana and New Mexico, in contrast to the two cent rate in the District of Columbia and Kentucky.

The four leading states in terms of both production and relative dependence on the crop have been North Carolina, South Carolina, Kentucky and Virginia, the latter two being the only states in the history of cigarette taxation to decrease their taxes; the reduction was only .5 cent (from three cents to two and a half cents) in 1960 and 1961, respectively.

By 1966, Oregon became the 49th state to impose a tax on cigarettes; the rate was four cents per pack. Finally, in 1969 North Carolina imposed a cigarette tax-two cents.

The cigarette excise taxes continued to increase during the sixties. By 1970, the taxes ranged from North Carolina's two cents to Pennsylvania's 18 cents for a weighted average of 10.7 cents. Twenty nine states levied taxes of 10 cents or more per pack (USDA, Tobacco Situation, 1971b: 40). Local governments superimposed further excise taxes on the state taxes, ranging from one cent to 10 cents per package (Tobacco Tax Council, 1970: iv).

By mid-1971, the range had widened further Connecticut at 21 cents and North Carolina at two cents, the weighted average state tax being 11.1 cents (USDA, Tobacco Situation , 1971a: 7).

TOBACCO REVENUES

A peculiar relationship exists between production and revenue. In 1970, cash receipts from tobacco brought in $11 million for Pennsylvania; tobacco farmers and cigarette taxes amassed $194.6 million for the state. By comparison growers in North Carolina collected $576 million while the state collected only $13.4 million in cigarette revenues (USDA, Tobacco Situation, 1971b: 43).

The federal excise tax on a package of cigarettes is currently eight cents and has remained so since 1951. The combined state and federal tax was highest in Pennsylvania; 26 cents for 20 cigarettes, which was 58.2% of the retail price. Connecticut's 24 cents and Texas's 23.5 cents were close behind; the average for the United States was 46.8%.

To the Federal and state governments today, tobacco is a financial asset. The total federal and state revenue collected f rom all tobacco products in 1971 amounted to over $4.7 billion. Local governments excised the product further bringing the sum total to $4.8 million (USDA, Tobacco Situation, 1971b: 44).

From the years 1890 to 1930 cigarette tax collections from tobacco soared from approximately $1 million to over $339 million. By 1950, they exceeded $1.2 billion.

Totals for the years 1890 to 1970 are recorded in the following chart (Tobacco Tax Council, 1970: 5)

Cigarette tax

REGULATION OF CONSUMPTION

Even as far back as the 16th century, smoking was considered to have medicinal value. Juan de Cardenas, a Spanish physician who lived in Mexico in the late 1500's, wrote that "Soldiers subject to privations, kept off cold, hunger, thirst by smoking and all the inhabitants of the hot countries of the Indies alleviate their discomforts by the smoke of this blessed and medicinal weed" (Wagner, 1971: 63-64).

During, the recurrent epidemics of plague in the 17th century, it was widely believed that smokers were spared; it has been reported that men who attended the sick and accompanied the dead kept their pipes lit (Wagner, 1971: 63-64).

In 1614, one Scottish doctor praised the tobacco plant which:

Prepareth the stomach for meat; it maketh a clear voice: it maketh a sweet breath . . . in a few words it is the princess of physical plants (Gottsegen, 1940: 87).

King James disagreed strenuously, and in 1604 ordered a substantial increase in the import duty on the leaf. Smoking, he wrote in "A Counterblaste to Tobacco", is:

A custom loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs, and in the black stinking fume thereof, nearest resembling the horrible Stygian smoke of the pit that is bottomless (Brooks, 1952:56, 71).

Another more passionate moralist wrote:

. . . imagine thou beheldest here a firme-sucker's wife most fearfully fuming forth very fountains of blood, howling for anguish of heart, weeping, wailing, and wringing her hands together . . . while she _pitifully pleads with her husband thus: Oh husband, my husband . . . ! Why dost thou so vainly prefer a vanishing filthy fume before my permanent virtues? (Brooks, 1952: 72).

Notwithstanding such alliterative literature, the habit of smoking increased in popularity, particularly in the colonies. A French visitor observed in 1686 that:

Large quantities of it [tobacco] are used in this country, besides what they sell. Everyone smokes while working and idling. I sometimes went to hear the sermon; their churches are in the woods, and when everyone has arrived the minister and all the others smoke before going in. The preaching over, they do the same thing before parting. They have seats for that purpose. It was here I saw that everybody smokes, men, women, girls and boys from the age of seven years (Robert, 1949: 99).

It was said that even in New England, women of the colony "smoke in bed, smoke as they knead their bread, smoke whilst they're cooking" (Gottsegen, 1940: 147).

In the tobacco colonies, of course, there was no attempt to restrict Consumption of tobacco. It was, after all, their economic mainstay.

Officials in the northern colonies were less enthusiastic about the habit, however. In 1632, the General Court of Massachusetts Bay took the initiative and forbade smoking in public tinder penalty of a fine (Tobacco Institute, Massachusetts, 1971 : 17). In 1638, the proscription was expanded to prohibit anyone from smoking in any inn or public house except in his own room "so as neither the master of the house nor any of the guests there shall take offense thereat which if they do, then such person is forthwith to forebear upon paying of two shillings sixpence fine for every offense" (Werner, 1922: 100).

This law was followed by another in 1646 which prohibited smoking except on a journey of five miles or more from any town. Nor could a citizen of the colony bring a pipe or tobacco into the precincts of the court (Werner, 1922: 100), although he might smoke at "the ordinary tyme of repast comonly called dynner" (Heimann, 1960: 83).

Plymouth colony was similarly strict. In 1638, a law was passed forbidding anyone from smoking on the streets. The following year, it was decreed that jurymen might not smoke, on pain of a five shilling penalty.

In 1641, even the importation of tobacco was forbidden, although the law was repealed a year later. A law passed in 1646 prohibited all from smoking, but exempted "soldiers in time of their training." And, finally, in 1669, it was ordered that anyone found smoking on the Sabbath within two miles of a meeting house, would be fined 12 pence (Werner, 1922: 101).

The colony at New Haven, Connecticut, essayed a like series of statutes to regulate tobacco consumption. In 1646, the General Court decreed that:

No person under the age of twenty years nor any other that hath not already accustomed himself to the use thereof, shall take any tobacko, until he hath brough a certificate under the hands of [a physician] that it is usefull for him, and also, that he hath received a license from the court for the same.... None shall take any tobacko, publickly in the street or any open places unless on a journey of at least ten miles. (Tobacco Institute, Connecticut: 20-21).

Within three years those laws were repealed (Werner, 1922: 102). However, it was further ordered in 1655 that:

No tobacco shall be taken in the streets, yards or aboute the howses in any plantation or farme in this jurisdiction without dores, neere or aboute the towne, or in the meeting howse, or body of the trayne Souldiors, or any other place where they may doe mischief thereby, under the penalty of 84 pence a pipe for a time, wch is to goe to him that informs and prosecuts (Heimann, 1960: 83).

As a result of the regulation, snooping became a profitable undertaking. In the end, however, the laws were of no avail in suppressing tobacco.

By 1680, the governor of Connecticut recognized the significance of the leaf and reported that, "We have no need of Virginia's trade, most people planting so much Tobacco as they spend," (Heimann, 1960: 84). Indeed, by the early 18th century, New England-grown tobacco was being produced in great enough quantity for both domestic consumption and export (Tobacco Institute, Connecticut: 22-23).

Tobacco was not one of the major concerns of the 18th century either before or after the Revolution. Social reform was generally secondary to political issues. By the end of the century, however, Dr. Benjamin Rush had published his "Observations upon the influence of the Habitual use of Tobacco upon Health, Morals, and Property" in his collection of Essays, Literary, Moral and Philosophical. It appeared in 1798, and stressed the Doctor's thesis that smoking and chewing provoked drunkenness:

One of the usual effects of smoking and chewing is thirst. This thirst cannot be allayed by water, for no sedative or even insipid liquor will be relished after the mouth and throat have been exposed to the stimulus of the smoke, or juice of Tobacco. A desire of course is excited for strong drinks, and these when taken between meals soon lead to intemperance and drunkenness. One of the greatest sots I ever knew, acquired a love for ardent spirits by swallowing ends of Tobacco, which he, (lid, to escape detection in the use of it. . . (Robert, 1949: 106).

There was little immediate response to Rush's dire warnings, although in the year his tract was published, Boston enacted a statute to prohibit the carrying of a lighted pipe or cigar in public streets-apparently with the intent to reduce the hazard of fire (Brooks, 1952: 245).

An anti-tobacco crusade was launched in the 19th century, although with considerably less fervor that its sister movement against alcohol. Among the leaders were Rev. George Trask who said tobacco and alcohol were Satan's twins; and the Rev. Orin Fowler, who declared in 1833: "Rum-drinking will not cease,, till tobacco-chewing and tobacco smoking and snuff -taking shall cease" (Robert, 1949: 107). Another, Dr. Joel Shew, attributed delirium tremens, perverted sexuality, impotency, insanity and cancer to the effects of smoking and chewing (Brooks, 1952: 219).

The crusade warned as the pipe continued to attract adherents. From the 18th century on, the cigar too began to grow in favor, particularly after 1840. It is estimated that by 1850, the average number of cigars smoked was approximately 19 per capita. Within 10 years, the number had increased to about 26 (Gottsegen, 1940: 8-10).

Women smoked and chewed as well as the men. Indeed, Mrs. Andrew Jackson and Mrs. Zachary Taylor both smoked their pipes in the White House (Heimann, 1960: 90). And, of course, the other residents of the Capital engaged heavily in the practices of both chewing and spitting, to the extent that Charles Dickens, during his tour of the States, felt called upon to report that:

Washington may be called the headquarters of tobaccotinctured saliva.... In all the public places of America, this filthy custom is recognized. In the courts of law, the judge has his spittoon, the crier his, the witness his, and the prisoner his; while the jurymen and spectators are provided for. . . . The stranger will find [the custom] in its full bloom of glory, luxuriant in all its alarming recklessness, at Washington (Brooks, 1952: 215-216).

Chewing and snuffing remained popular until the time of the Civil War. Thereafter, cigarette smoking was gradually adopted in North America, a habit indirectly acquired through the British from their Turkish and French allies during the Crimean War (Werner, 1922: 105).

By 1870, approximately 13.9 million cigarettes were smoked annually in the United States, or .36 per capita. Over the next 60 years, the number was to reach 976.91 per capita (Gottsegen, 1940: 28).

As more persons took to cigarettes, the zeal of reformers, which had ebbed during the Civil War, was renewed. Pamphlets, like those of the Temperance Movement, were published, urging abstinence from smoking:

"I'll never use tobacco, no;

It is a filthy weed;

I'll never put it in my mouth."

Said Little Robert Reed.

"It hurts the health ; it makes bad breath;

'Til very bad indeed.

I'll never, never use it, no!"

Said Little Robert Reed (Brooks, 1952: 242-243).

During the period following the Civil War and prior to the formation of the American Tobacco Company in 1890, the anti-liquor forces continued to snipe at tobacco in all forms. A reformed drinker and temperance lecturer, John B. Gough, would pull from his pocket a square of tobacco, smell it as if it were a rose, cry out "Ali you black devil, I love-you" and throw it away.

The anti-tobacconists were led by Lucy Gaston, the greatest, warrior in the anti -cigarette campaign who was trained in the office of the Women's Christian Temperance Union and then moved over into the anti-tobacco Movement in the 1890's. Miss Gaston encouraged children to wear anti-tobacco pins or buttons and organized armies of children to sing and preach to and against their smoking elders (Wagner, 1971: 40).

"All hostility to tobacco seems nowadays to be concentrated on cigarettes," noted Harper's Weekly, observing the scene in 1905 (Robert, 1949: 169). It was scarcely a startling revelation. Twenty years earlier, the New York Times editorialized that:

A grown man has no possible excuse for thus imitating the small boy.... The decadence of Spain began when the Spaniards adopted cigarettes and if this pernicious habit obtains among adult Americans the ruin of the Republic is close at hand . . . (Brooks, 1952: 253).

Miss Gaston witnessed some legislation victories. Between 1895 and 1921, 14 states banned the sale of cigarettes (Neuberger, 1963: 52). Even in the city of New York it was declared unlawful for women to smoke in public (Brooks, 1952: 271). Curiously, However, the city of Boston repealed its law which prohibited smoking in public in 1880 (Gottsegen, 1940: 153).

The apparent success of the prohibitionists revived the anti-tobacconists' enthusiasm. "Prohibition is won; now for tobacco!" pledged Billy Sunday. Miss Gaston also renewed her dedication and actually announced her candidacy for the presidency of the United States in 1920 on an antitobacco platform.

For many anti-tobacconists, when it became apparent that the elder generation may be lost, the war against tobacco was focused on the youth of the country. The National Education Association pledged its membership to cooperate in efforts made in the city, state and nation to safeguard the health and morals of youth from cigarette smoking to the end that high ideals for American manhood may be, preserved for the coming generation (Hamilton, 1927: 168).

The National Congress of PTA, in Atlanta, Georgia, in 1926 resolved "to lend its force to the cause of eliminating throughout the United State-, the use of cigarettes by minors and make this a special work for the ensuing year for the good of our youth" (Hamilton, 1927: 168).

It is for these reasons that the WCTU declared an educational war against tobacco, but declined to seek prohibitory legislation (Robert, 1949: 247).

The disenchanting experience of Prohibition, the omnipresence of the tobacco industry, the need for new sources of state revenues and the prevalence and popularity of cigarette smoking combined to frustrate the anti-tobacco campaign. Cigarettes did provide a new source of revenue. Federal income from tobacco taxes soared to new heights because of increased cigarette consumption and advanced rates.

In any event, by 1927, each of the 14 states which had enacted prohibitory laws against cigarettes had repeated them (Neuberger, 1963: 52). Immediately thereafter these, states imposed taxes upon the once forbidden product (Robert, 1949: 256; Federal Trade Commission, 1970: 3).

STATE REGULATION

Only those laws which forbade the sale of tobacco products to minors remain on the books, a trend set by New Jersey and Washington in 1883 (Gottsegen, 1940: 155).

All but a few statutes restricting tobacco products to minors were enacted between 1916-1920, simultaneous to the development and popularity of the domestic-blend cigarette.

All 50 states bad laws banning sales to minors by 1950. Since then, Georgia,. Louisiana, and Wisconsin have repealed theirs le o 47 states plus the District of Columbia, WIL Vs prohibiting sales to minors.

The most common age of restriction for cigarettes and tobacco products today applies to persons under the age of 18. In an effort to ensure stricter enforcement 11 states have lowered the age of restriction from 21 to 15 (Tobacco Merchants Association, 1971: 1-2). In contrast to this trend, however, the, California Legislature, 1971 defeated a bill to allow school smoking areas and lowering the sale to minor restrictions to 15 years old (NIC Smoking and Health, 1971: 1).

According to a Special Report released by the Tobacco Merchants Association of the United States, the liability for infractions in all states is on the vendor and donor of cigarettes. In a few states, manufacturer and persons advising or compelling the minors to smoke, or owning the premise where such behavior occurs are also liable. However, in some states the infraction does not extend to the parent or guardian. Some states penalize the minor himself and others require that he divulge his source.

Most of the statutes that prohibit the furnishing of cigarettes to minors extend the ban also to one or more other tobacco products. Only I 1 states restrict the sale "only" to cigarettes. The efficacy of such statutes, in the day of the cigarette machine, is subject to substantial skepticism.

A complete listing of existing state statutes concerning possession by and sales to minors follows (Tobacco Merchants Association, 1971: 3-4) :

State

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

District of Columbia

Florida

Georgia

,see footnotes at end of table.

Sale to minors

Prohi I bited Age

Yes Minor

Yes Under 18

Yes Minor

YeS Under 18

Yes Under 18

Yes Under 16

Yes Under 16

Yes Under 17

.. Yes Under 16

Yes Minor

No provision

Use or possession

Prohibited Age

No provision

No provision

Yes I Minor.

No provision

Yes (4).

No provision

No provision

No provision

No provision

No provision

No provision

Sale to minors Use or possession

State

Prohibited Age Prohibited Age

Hawaii Yes Under 15 No provision

Idaho Yes Under 18 Yes Under 18.

Illinois Yes 5 Under 18 Yes Under 18.

Indiana Yes Under 16 Yes Under 21.

Iowa Yes Under 18 (57) Under 18.

Kansas Yes Under 18 Yes Under 18.

Kentucky Yes Under 18 Yes Under 18.

Louisiana No provision No provision

Maine Yes Under 16 No provision

Maryland Yes Under 15 No provision

Massachusetts Yes' Under 18 No provision

Michigan Yes Under 21 Yes Under 21.

Minnesota Yes Under 18 Yes Under 18.

Mississippi Yes5 Under 18 No provision

Missouri Yes Under 18 Yes Under 18.

Montana Yes Under 18 No provision

Nebraska Yes Under 18 Yes Under 18.

Nevada Yes 5 Under 18 No provision

New Hampshire Yes Minor No provision

New Jersey Yes Under 16 No provision

New Mexico Yes5 Under 18 8 No provision

New York Yes Under 18 No provision

North Carolina Yes Under 17 No provision

North Dakota Yes Under 21 Yes Under 18.9

Ohio Yes Under 18 No provision

Oklahoma Yes Minor (6) Minor.

Oregon Yes Under 18 Yes Under 18.

Pennsylvania Yes Minor (6) Minor.

Rhode Island Yes Under 16 Yes Under 16.

South Carolina Yes Under 18 (6) Under 18.

South Dakota Yes Under 18 Yes Under 18.

Tennessee Yes Under 18 No provision

Texas Yes,' Under 16 No provision

Utah Yes Under 19 Yes' Under 19.

Vermont Yes5 Under 17 No provision

Virginia Yes Under 18 No provision

Washington Yes Under 21 Yes Between 18 and 21.1

West Virginia Yes Under2l Yes Under 21.

'Wisconsin No provision No provision

Wyoming Yes Under 18 No provision

1 Includes a prohibition against the purchase of cigarettes by minors (in Illinois without written order of parent or guardian), as well as use or possession by

2 if other than parent or guardian.

3 However, inmates in State correction institutions 16 or over, with consent of parent or guardian, may be furnished tobacco and tobacco products.

Eighteen and over. in junior college if not permitted by governing board.

Without consent of parent or guardian.

Minors smoking or in possession of cigarettes are required to give source of cigarettes; use or possession not otherwise regulated.

in addition, high school students may not smoke.

And any pupil of any school in State.

Or a minor pupil in any school.

Purchase or possession by misrepresentation of age a misdemeanor.

THE IMPETUS FOR FEDERAL SUMPTUARY REGULATION

The effect of smoking on health has been the subject of discussion for hundreds of years. Early participants in the tobacco controversy, beginning in the late 16th century, did not associate the use of tobacco with the production of cancers although they credited it with causing or curing nearly every other known disease.

Dr. John Hill, of London, a physician, botanist and prolific writer, first suggested the relation in 1761. In Cautions Against the Immoderate Use ol Snuff, he reported six cases of "polypusses" related to excessive indulgence in tobacco in the form of snuff. One such "polypus" was described as a swelling in one nostril that was hard, black and adherent on a broad base. Painless at first, it later developed "all the frightful symptoms of an open cancer." Dr. Hill believed that this lesion could be fatal and placed the blame for its origin on tobacco. Dr. Hill has been noted as the first to report an association of tobacco with cancer (Redmond, 1970: 21).

In 1939, the first scientific study linking lung cancer with smoking was published. Between 1950 and 1954, 14 studies associating cigarettes and serious diseases were completed (Fritschler, 1969: 145).

At the present time, there is no government agency with clear jurisdiction over the health aspects of cigarettes. The Federal Trade Commission can act on matters of advertising and package information. The Food and Drug Administration concerns itself only with foods, drugs, solids, or liquids that are eaten or drunk. Tobacco is neither a food nor a drug under current legal definitions. Nor are cigarettes eaten or drunk; they are inhaled.

The 1890 edition of the U.S. Pharmacopoeia, an official listing of drugs published by the government, included tobacco. In later editions, tobacco was dropped. Former Senator Maurine Neuberger has claimed that the removal of tobacco from the Pharmacopoeia was the price paid to get support of tobacco-state legislators for the Food and Drug Act of 1906. The leaf was thereby removed from the jurisdiction of the FDA (Wagner, 1971: 74).

The first statement from the Public Health Service on the subject was made by its Surgeon General, Leroy F. Burney, M.D., in the Journal of the American Medical Association in November, 1959. The heart of this statement was that "the weight of evidence at present implicates smoking as the principal etiological factor in the increased incidence of lung cancer" (Diehl, 1969: 154).

In June, 1961 the American Cancer Society, the American Heart Association and the National Tuberculosis and Respiratory Disease Association jointly requested that a commission be appointed "to consider the responsibilities of government, of business and of voluntary agencies relative to the health hazards of cigarette smoking and to recommend a solution of this health problem that would protect the public and would interfere least with the freedom of industry and the happiness of individuals" (Diehl, 1969: 155).

On June 7, 1962, the then Surgeon General, Dr. Luther Terry, announced, with the approval of the President, that he was establishing an "expert committee to undertake a comprehensive review of all data on smoking and health."

The members of this committee were respected scientists who had previously expressed no opinion about the relationship of tobacco to health. All members were approved for appointment by the tobacco industry as well as by the American Medical Association and several national health agencies. Half of the committee members were cigarette smokers.

On January 11, 1964, after some 15 months of intensive study, this Advisory Committee- to the Surgeon General issued its monumental unanimous report stating that "cigarette smoking is a health hazard of sufficient importance in the United States to warrant, appropriate remedial action."

The committee stated unequivocally that "cigarette smoking is causally related to lung cancer in men; the magnitude of the effect of cigarette smoking far outweighs other factors. The data for women, though less extensive, point in the same direction." Air pollution was found to be a very minor factor in the cause of the disease, far outweighed by cigarette smoking.

The death rate from heart disease, the report noted, was 70 percent higher in cigarette smokers than in nonsmokers, and although there was not enough evidence to say positively that smoking causes heart disease, there was enough to assume that it is a cause and to take action against it.

Another conclusion of great importance was that "cigarette smoking is the most important of the causes of chronic bronchitis in the United States and increases the risk of dying from chronic bronchitis and emphysema."

The report analyzed the statistical, pathological, clinical, and experimental evidence in relation to smoking and other diseases. A total of more than 4,000 published reports were studied and more than 150 investigators were personally interviewed. "The result was the most comprehensive and authoritative report on this subject ever made" (Diehl, 1969: 156).

THE HEALTH WARNING REQUIREMENT

At the time the Surgeon General's Report was published, no statute, administrative ruling or court decision required that cigarette packaging or advertising contain any statement about the dangers to health attributable to cigarette smoking.

After Trade Regulation Rule Proceedings in March and June 1964, the Federal Trade Commission concluded that cigarette advertising was deceptive (misleading) and that advertisers had a responsibility to warn the public of the health hazards of cigarette smoking.

To accomplish this, the Commission proposed that cigarette packages state the amount of tar and nicotine in the smoke of the cigarette which the package contains and that cigarette packages and cigarette advertising carry a statement such as: "Caution: Cigarette 'Smoking is Dangerous to Health. It May Cause Death from Cancer and Other Diseases."

This warning was to be required on cigarette packages beginning January 1, 1965, and in cigarette advertising beginning July 1, 1965. The tobacco industry first obtained a postponement of the effective dates of this ruling and then prevailed upon Congress to vitiate the ruling by passing the Cigarette Labeling and Advertising Act, requiring all packages of cigarettes sold in this country to carry the label "Cigarette Smoking May be Hazardous to Your Health," but prohibiting the Federal Trade Commission and state and local governments from requiring any other label on cigarette packages and any warnings in cigarette advertising at least until 1969.

A New York Times editorial called the Cigarette Labeling and Advertising Act of 1965 "a shocking piece of special-interest legislation-a bill to protect the economic health of the tobacco industry by freeing it of proper regulation" (Cigarette Labeling and Advertising, 1965). An article in the Atlantic Monthly described the political maneuvering behind this legislation under the title "The Quiet Victory of the Cigarette Lobby: How It Found the Best Filter Yet-Congress" (Diehl, 1969:162).

Public concern attending publication of the Surgeon General's report, Smoking and Health, and the pending FTC regulations for warnings on cigarette packages and in cigarette advertising apparently convinced the tobacco industry that some action by Congress was inevitable.

Reportedly the industry decided to accept a weak label on cigarette packages provided that the legislation would prevent any regulation of cigarette advertising. This was accomplished by inserting into the proposed law the provision precluding the FTC and all state or local governments from requiring any warning on cigarette packages other than the one approved by Congress and also preventing any warnings in cigarette advertising.

At House and Senate committee hearings, committee members friendly to the industry attempted to discredit both the Surgeon General's Report and the testimony given by the Surgeon General, the Chairman of the Federal Trade Commission, and the representatives of various medical and health organizations. The tobacco industry then presented a number of physicians who testified that they disagreed with the conclusions of the Surgeon General's Advisory Committee and that in their opinion there was no real evidence that cigarette smoking is harmful (Diehl, 1969: 162).

Although this act temporarily prevented any requirement that tar and nicotine content be indicated on cigarette packages, the Federal Trade Commission did establish a laboratory to determine the, tar and nicotine content of the smoke of cigarettes on the American market, making the results of these tests available periodically to the public.

The Cigarette Labeling and Advertising Act also required that about July 1, 1967, and annually thereafter the Federal Trade Commission report to Congress concerning the effectiveness of the warning label, and upon current practices of cigarette advertising and promotion, with "recommendations for legislation that are deemed appropriate."

After an intensive study the Federal Trade Commission made a detailed report to Congress with the following summary and recommendations: "There is virtually no evidence that the warning statement on cigarette packages has had any significant effect."

Sales remained constant and the industry continued to invest hundreds of millions of dollars in advertising; $200 million a year was being spent on radio and television alone in 1967; cigarette advertisers had become the single largest product advertisers on television accounting for about eight per cent of television advertising time (Wagner, 1971: 166).

THE FAIRNESS DOCTRINE

Another government agency had become concerned with cigarette advertising. The Federal Communications Commission is mandated to assure that the airways, which belong to the public, are used in the public interest.

John P. Banzhaf, III, who has been called the "Ralph Nader of the tobacco industry" was responsible for the FCC's involvement in the cigarette advertising controversy. After viewing several cigarette commercials on television, Banzhaf concluded that "what he was seeing might be considered legally 'controversial"' (Wagner, 1971: 168). He then wrote to WCBS-TV in New York on December 1, 1966, requesting that he or some other responsible spokesman be given an opportunity to present contrasting views on the issue of the benefits and advisability of smoking.

Banzhaf's letter cited three commercials that presented the view that smoking is "socially acceptable and desirable, manly, and a necessary part of a rich full life. "He asked-free time roughly approximate to that spent on the promotion of the "virtues and values of smoking." CBS routinely turned down the request. He sent a second letter to CBS and submitted a formal complaint against WCBS-TV to the FCC in Washington.

The FCC, in a letter to the television station dated June 2, 1967, said programs it had broadcast dealing with the effect of smoking on health were insufficient to offset the effects of paid advertisements broadcast for a total of five to 10 minutes each broadcast day. "We hold that the fairness doctrine is applicable to such advertisements" the Commission said. They rejected Banzhaf's claim for equal time, however.

The FCC called on the station to provide free each week "a significant amount of time for the other viewpoint," thereby implementing the smoking education campaigns launched by the government under the cigarette labeling law. "This requirement will not preclude or curtail presentation by stations of cigarette advertising which they choose to carry." The FCC basically decided that it was not in the public interest for the airways to be used by radio and television to advertise cigarettes without some warning of the health hazards involved with smoking (Wagner, 1971: 169).

The FCC was deluged with requests to reconsider its action. The agency stood firm in its unanimous decision. As a result of the ruling many of the voluntary health agencies and the Public Health Service made available to the television and radio industries spot announcements and other program materials on the serious consequences to health caused by cigarette smoking.

The FCCs decision was upheld by the U.S. Court of Appeals on November 21, 1968; the court said the agency could indeed use its fairness doctrine to require free time for anti-smoking commercials. "The danger cigarettes may pose to health is, among others, a danger to life itself," the Court said.

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 cumulation of statistical evidence (Wagner, 1971: l66-173).

(The cigarette manufacturers then asked the Supreme Court to review their case, but the high court turned down the request, leaving the appeals court decision standing.)

"Most observers agree that the dramatic entrance of the FCC into the smoking controversy was probably the most important single event during the three-year moratorium on requiring health warnings in cigarette advertisements imposed by Congress on the FTC" (Wagner, 1971 : 175).

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.

CONSUMPTION TRENDS

Cigarette smoking is widespread in America today; 45.9% of the male population 17 years of age and over and 30.5% of females 17 and over are smokers. In 1970, about $10.6 billion of individuals' expenditures was for cigarettes.

Data on cigarette sales and advertising has been obtained by the FTC from domestic cigarette manufacturers; the table below provides cigarette sales for the years 1963 to the present (Federal Trade Commission, 1970: 3) :

TOTAL CIGARETTES SOLD

Year Billions

1963 516.5

1964 505.0

1965 521.1

1966 529.9

1967 535.8

1968 540.3

1969 527.9

1970 534.2

The reduction in sales in 1964 coincides with the public attention given the Report of the Surgeon General issued on January 11, 1964. Public awareness of the dangers cited in the Report was high. It was soon forgotten, for in 1965 the total number of cigarettes sold was almost 5 billion higher than the year prior to the Surgeon General's Report.

In 1969 there was another significant decline; it has been suggested that this decline is attributable to several high-visibility events and also by sales tax increases. For example, the FCC ruling was upheld in November 1968 giving impetus to the antismoking TV campaign; the federal government's anti-smoking campaign was in full swing during 1968-69; the public outcry was being felt by economic interests-magazines, newspapers, personalities and advertising agencies which refused sponsorship for business from tobacco companies.

There were significant state tax increases immediately prior to 1969 which probably contributed to the reduction in sales during that year. During fiscal year 1967, 15 states increased their cigarette tax rates; the average increase was 3.5 cents. The rate increase ranged from New York's, Ohio's, and Illinois' two cents to California's and Florida's seven cents. The next year, seven more states increased their cigarette taxes. The rates ranged from Massachusetts' and Vermont's two cents to Minnesota's, Rhode Island's, and Tennessee's five cents the average increase approximately four cents (Council of State Governments, 1968: 196-197).

The ban on cigarette advertising on television and radio began on January 2, 1971, yet several calculations reflect a rise in cigarette sales during the past year. Business Week projections of industry sales and brand rankings show that a record 529 billion cigarettes were consumed in 1971, 1.5% more than 1970's sales (Where Cigarette Makers Spend, 1971: 56). Tobacco industry sources estimate that consumption has risen in 1971 by 1.5% to 535 billion cigarettes (Cigarette Sales Up, 1972: 3).

John C. Maxwell, tobacco analyst for Oppenheimer & Company, a brokerage firm, also reported a rise-2.3% in domestic unit sales in 1971. He relates part of the growth in cigarette consumption to the population mix the increase hit the 20-40 year age group, where smoking is heaviest. The Maxwell report suggests that the rest of this growth must be related to "government overkill, wherein many voices in Washington suggest that everything we eat or drink is harmful" (Maxwell, 1971: 1).

An industry specialist with Manufacturers Hlanover Trust Company, on the other hand, attributes both the lag in sales in 1969 and the new increase to the "very effective antismoking ads on television. Since the ban, these commercials rarely appear" (Cigarette Sales Up, 1972: 3).

Another industry executive notes, "For years we have believed that the role of cigarette advertising is to attract smokers from competitive brands rather than induce nonsmokers to start smoking. We failed to convince the Federal Communications Commission of this, but it is borne out by our industry's experience since the TV ban. Within a relatively stable market, some companies have continued to gain while others lost. Some brands have increased their share of market while others have declined" (Where Cigarette Makers Spend, 1971: 56). Skeptics continue to argue that tobacco companies have also been trying to recruit new young smokers.

TOBACCO: ECONOMICS AND POLITICS

It is generally accepted that tobacco has been an extremely powerful force in American politics. Approximately 50 million smokers smoked 535 billion cigarettes in the past year. More than 100,000 employees receive $500 million in wages annually from tobacco manufacturing companies; over 4,500 wholesalers handle the distribution of tobacco products and hundreds of thousands of merchants depend on tire sale of cigarettes as a source of their income.

Cigarette companies had been spending over $200 million per year on radio and television advertising, and since the ban, almost all of this money has been diverted to other media advertising providing many thousands of jobs in ad agencies and in the various media. Three million people from about 750,000 families receive $1.4 billion annually for the cultivation of tobacco used in cigarettes.

Peripherally affected are those involved in producing the 40 million pounds of moisture-proof cellophane, the 70 million pounds of aluminum foil, the 27 billion printed packs, and the 2.7 billion cartons (Cigarette Advertising, 1970: 110-111; Wagner, 1971: 120; USDA, Tobacco Situation, 1971a: 29-31).

One writer, reporting on the present public policy trend, notes that "attempts to discourage smoking would affect the lives of millions of people and would have profound economic and political consequences" (Wagner, 1971: 121).

Advocates of cigarette smoking today are organized into extremely powerful groups, each having its own specific function and plentiful resources.

The Tobacco Tax Council, established in 1949, compiles data on the taxation of tobacco products by the Federal, state and local governments. The Council's annual booklet, "Cigaret Taxes in the United States" has been superseded by " The Tax Burden on Tobacco" since 1966. This pamphlet "undertakes to trace the history of tobacco taxes from the years of the Civil War down through [the present year]" (Tobacco Tax Council, 1970: iii).

The trade association promoting the welfare of the tobacco industry is the Tobacco Merchants Association of the U.S. It is composed of manufacturers, wholesalers, retailers, importers, exporters, leaf dealers, suppliers, and firms interested in the industry. Its Bulletins cover legislation, trends, special reports; its numerous other publications and activities seek to improve industry operations and expand outlets (e.g., international) f or potential sales (Tobacco Merchants Association, 1971: 1-4).

The tobacco industry's point of view is nurtured and protected by the Tobacco Institute, a nonprofit corporation founded in 1958. Its membership includes major U.S. manufacturers of cigarettes, smoking and chewing tobacco, and snuff: The Bloch Brothers Tobacco Company, Brown & Williamson Tobacco Corporation, Conwood Corporation, G. A. Georgopulo & Company, Helme Products, Larus & Brother Company, Liggett & Myers, Lorillard, Philip Morris Incorporated, R. J. Reynolds Industries, Scotten-Dillion Company, and United States Tobacco Company.

The Institute is financed by contributions from the large corporations according to their share of the market. The institute reports on the pro-tobacco side of the medical story, attempting to discredit antismoking publicity, and publishes information on the historical role of tobacco, its place in the national economy, the industry itself, and the public's use of tobacco products.

The Council for Tobacco Research, created in 1953 in response to medical bulletins reporting on the hazards of smoking, processes and administers millions of research grants. "Although research money was to be awarded with no strings attached [The Council] nicely serve[s] the purpose of identifying the industry with the welfare of humanity and spreading good will through the scientific community" (Wagner, 1971: 80).

The scientific data continue to be attacked from both sides. Since 1954 a great quantity of research has been published and, in turn, disputed. For example, "the press played up the Hammond and Auerbach study and the claim that twelve beagles had developed lung cancer" from cigarettes. "The findings have subsequently been downgraded by ' v the author to two microscopic tumors with the further revelation that two dogs in the control group also developed tumors" (Maxwell, 1971: 1).

Another area of contention has developed around the relationship between cigarette smoke itself and lung cancer. A recent paper by Dr. Geoffrey Myddelton given at the Second World Conference on Smoking and Health in London, September 20-24, 1971, compares the incidence of smoking and lung cancer in various countries. He indicates, "Japan smokes 86% as much as Britain but has only 27% of its lung cancer. Canada smokes twice as many cigarettes as the Netherlands but has only 69% as much lung cancer." He goes on to correlate the use of diesel file] in England to lung cancer (Maxwell, 1971: 2).

From the other side, the United States Public Health Service 1972 report The Health Consequences of Smoking maintains that "nonsmokers as well as smokers may be harmed by cigarettes, . . . tobacco smoke in closed cars and poorly ventilated rooms can contaminate the atmosphere for everyone. . . . The chief danger is exposure to low levels of the deadly gas, carbon monoxide. Experiments, with animals have shown that various concentrations of the colorless, odorless, and tasteless gas 'adversely affect' the structure and function of the heart and lungs. The implication is that this may also be true in man" (Study Says Cigarette Smoke Also May Harm Nonusers, 1972: 1).

It is estimated that at the present time one and a half to two million adults give up smoking every year. Sensing the hazards of the future, some cigarette, companies sought fiscal security in diversification and substitution; tobacco manufacturers are now marketing, for example, safety razors, fertilizers, dog food, ballpoint pens, peanut butter and other non-nicotine products. By 1967, sales on non-tobacco products accounted for approximately one-third of the, total sales of cigarette manufacturers.

It remains to be seen whether tobacco power will be whittled away any further in the next few years. Some feel that "the tobacco subsystem has succeeded in keeping the health question a low priority item on the government's agenda by playing one government agency off against another.... This subsystem cuts across institutional lines and includes the paid representatives of tobacco growers, marketing organizations and manufacturers.,. Congressmen representing tobacco growing states [are] leading members of four subcommittees, including two ,appropriations subcommittees and two committees in each house of Congress handling tobacco legislation. . . . Tobacco power [is] thus firmly entrenched and well supported" (Wagner, 1971: 121).

On the other hand, a strongly worded commentary by an industry spokesman cites Justice John Marshall's statement to illustrate industry's precarious position: "The power to tax involves the power to destroy." He continues with a description of the tobacco industry's present situation:

The onslaught of state and local taxes on tobacco products ... represents a most serious threat to all segments of our industry.... We are now facing a calculated attempt to destroy, or at least drastically curtail, the sale of smoking products. The political and economic climate is most favorable for this attack. Smoking and health is a prime political issue in the same context as air pollution, crime in the streets, and consumerism. At the same time, local governments are verging on bankruptcy. Revenue of any sort is therefore a must. It is a tough battle, and cigarette industry is currently bearing the largest part of the attack (Regensburg, 1971: 146).

The revenues gained from tobacco tax collections are significant. Over $2.1 billion in Federal taxes and over $2.5 billion in state cigarette taxes were collected in Fiscal Year 1971 (Tobacco Tax Council, 1970: 4-6, 8; USDA, Tobacco Situation, 1971b: 44). Total tobacco taxes were $4.8 billion in 1971 compared with $1.7 billion in 1950.

In 1970 tobacco taxes accounted for 1.1% of total federal tax receipts and represented 13.8 percent of all excise taxes (USDA, Tobacco Situation, 1971b: 40). This places the tobacco tax as the seventh largest source of collection by the Federal government behind the major giants, e.g., income and profit taxes (both corporate and individual), employment taxes, manufacturers excise taxes, alcohol taxes, and estate and gift taxes. In terms of individual commodities it ranks behind only alcohol. Thus, federal revenue would be importantly affected if tobacco consumption were to decline.

CONCLUSION

The big question is how the Federal government plans to proceed. Six tobacco bills are now pending in Congress. One of these bills would give the Federal Trade Commission authority to set maximum permissible limits on tar and nicotine. Another would establish a graduated cigarette tax based on tar content.

The FTC is presently carrying on negotiations with the industry to come up with a "clear and conspicuous" health warning for its print advertising. It is expected that the industry, " which has been working closely with the FTC 'will' take some 'voluntary' labeling action" (Where Cigarette Makers Spend, 1971: 57).

The industry feels the pressure; one member explains: "We are resigned to it. Over-all.... the industry mood is much more relaxed-now that we have this first big year behind us" (Where Cigarette Makers Spend, 1971: 57).

The public is clamoring for government action; a 1970 College Poll'. surveying-youths 18 and older on more than 100 campuses reveals that 96% believe that smoking is dangerous to one's health (College Poll, 1971).

Further, a 1969 study on teenage (13- to 18-yearolds) smoking attitudes, motivation and habits indicates "deep teenage dissatisfaction with cigarette smoking, considerable knowledge of its ill effects, but a very exaggerated estimate of the acceptance of smoking by the adult world" (Lieberman Research, 1969: 1-20). And, a 1970 nationwide survey of teenagers revealed: "72% of non-smokers identified physicians as the one group that could persuade them not to start smoking and 42% of those who smoked said their physician's advice would influence them to stop" (Doctors, 1970: 24).

Critics of the industry claim: "The controversy about smoking and health continues largely because of the energy, time and money spent by the tobacco industry in keeping this controversy alive" (College Poll, 1971).

In September, 1935, Fortune Magazine published a discussion of the medical implications of smoking. It concluded that:

This much can be said: That the possible benefit to be derived from tobacco is always less than the possible harm (Robert, 1949: 256).

Official policy has never accepted this judgment. In recent years, steps have been taken to discourage smoking, although there is little conclusive evidence that consumption patterns are changing. It can be expected that official policy and alterations in individual behavior will both evolve slowly during the coming years. The socioeconomic impact of a sudden change in official policy would be great, a circumstance reflecting the momentum of several centuries of intense commercial activity.

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7 USC � 511 (b) (d), 1935.

7 USC � 515, 1936.

7 USC � 1303,1938.

7 USC � 1312, 1938.

7 USC � 1314, 1938.

26-USC �-5701, et seq.