History of Tobacco Regulation - 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).