History of Tobacco Regulation - 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).