Tobacco Documents Online

im~llcatlons in terms of health hazard, is ~e £act that cigarette smo~<ing is strongly h~bit-fo-~ming. (p.23) "Although minor changes have been made in some ~dvertise.~,ents since pro~ulgatlen of ~he cigarette Codep ~hei~ tlne.~,es a.~d basic i~!Jact r~ain unchanged. Cignrctte advcrtisii~ff continues ~o ~romote the idca that cigarette szToking is both ple~sur~le ~nd harmless. " (p.2G) Yro~ the 196~q ETC Report "Tinis rajahs the.t, on the average, each U. $. irhmC~itant viewed 66°75 te!e'~ised cigarette com~nercia!s in o.ne month. During Janua~- 19~8...exposure r~tes o~ 50.8~ ~er teenager ~d 44~5 pe~ clni!d, as o~posed to 66.75 per inhabitant. It "~onld seem that the teanage rake is not ~pprecia~ly lower th~n the inhabitant r~te and that the rate nm0ng clnildren i~ low only ~nen co~- pared to n vexy high adult rate. Certainly the exposure n~t~- ~onc childr~-n is not !0w in any absolute sense. "~eported!y, there have been attempts Dy ~e~rs of ~%e cigarette !~it~skry to discourage the dlspl~}" of Co-~'~issicn t~~. ~nd nicotine yield Cata in

food and drug chains and ~o hal.t a ~ublic Health Service c~mpai~ to publ±cize the fact that imrge nulabers of doctors h~ve given up cignrettes." (p. 24) =_J~ the 1969 FTC ~ep ~ ~'~ile any tre~d to~,ard fe~,er exposures to %~ievised cicarette co.mmerciais is ~pplauded, exposure rates continue to be elt~emeiy high. (po 12) "~ ~ene]za!, c~re~t cigarette advertising la~ves the impression that cigarette smoking is healthy ~ctivity and one whose risk, to the extent ~hat it exists~ can be red~ced through the presence of ~ filter. " (p. 26~) FTC Recommendations ~ursuant to Section 5(D)2 of the Federal Cigarette Labeling amd Advertising Act, the Eedera! m ; ;.OimO~ll~g reoor~--nend~tlons xr~e co.~r~issio~ m~de the ~ "" " to the Congress in its 1969 reporu. ~e Advertisinc on Radio Actions On June 2, !967~ the and Television -- FCC Federal Co~aunications Co~r~ission sustained a listener's complaint that the fainness doctrin~ is appiicable to cig~rette advertising, stating;

-k3- ~'* * * ~%at ou~ h©iding is limited to this private reports (eo~°, ~ne 1964 Report of ~qe S~eo~ General's Co~ittee) ~n~ Con- gressional action (e.g., the Federal Cigarette L~elin~ and Advertising ACn cf 1965) assert that normal use of +dzis product can be a hazard to the health of _~l~ion~ of persons. The advertisements in question ciear!y p~o~ote ~e use of particular cig~ente as attractive a~d enjoy~le, indeed, nb_ey understandably have no other purpose. ~e believe that ~t~tion which prosents s~ch ~dve~tJ~e- ~ents h~s the ~tv of inform!n~ its audience of the onher side of ~his con- troversial issue of public i~port~nce -- chat however ~njoyable, such s~o~ing may ~e ~ h~rd to ~e s~oker's he~!th." in its September 13, 1967, Memormndum Opinion and Order ~ this rulingj the Co~mlssion stressed that, the specifics of the fairness doctrine aside~ the p~0biic interest st&nd~rd o~ the Co~u~ic~tions Act ~:means nothing if it does not include [the] responsi- bility" on the part of those who broadcast cigarette commercials to advise their audie~ces'~nat smoking can he harmful to health. ~he Co~ission's position wss s~stai~ed by the Cou~t Of Appeals f0~ tha District of Colur~ia Circuit (~anzhaf v. Federal Cor~munications Co~mission, ~05 F. 2d 1082, 1968)~ The Ceu~t held that the Cigarette Labeling Act did not preclude the Connnisslon~s

-LL- ~uii~g; that, '*as a p'~blie ' e " ~" n a&~n m~asure addressed to ~Dl%ique danger ~uthentieazed h~ official and con- ~essaonal actlon~" the ruling was a proper implementa- tio~ of ti~e public • ~ ~ ~ lnue~s~ staAda~d of the Communica- tions Act; ~nd that the ruling cad not o~fend the First ~Le~dment. The Supreze Court denied ~qe petitions for eertioazi on 0etober ~3, 1969. AS a result of this ruling~ broadcast stations ~vhieh carry cigarette co~Lmercials are also presenting, to a significant degree On a virtually drily basis (in~ludlng the hours of ~ximum listening), anti-- cigamette messages prepared by the v~rious {-nterestcd health organizations. See, e.g., kTZC--TV ruling, 16 FCC 2d. 956 (1969). Snbsequent to its application of the fairness doctrino to cigarette advertising, the FCC, on February. 6, 1969, issued a no~iee of proposed rzlem&king (FCC Docket No. 18434; 34 F.R. 1959, Febru~r~ ll~ 1969] te b~ cigarette advertising from radio and television, % ~is was done in light of the fort/%coming expiration of the Cigarette Labeling and Advertisil~g Act and for ~he announced purpome of apprising the Congress ~ith

~k respect to the a~tdon the ~CC proposed to take "assuming the absence Of n contrary conqressional direction." ~he Commission, citing the 1967 and 1968 ~W reports and the Banzhaf ~eeision~ stated that it would . . ° appear ~holly at o~<s wi~ llqe public interest for ~ro~dCastirs to presentadvertising promoting the cons~ption of the product posin~ ~his unique danqer -- a dem.ger measured in terms of ~n epZdemic of deaths and disabilities." ~ne Com~ission further asserted that in its view the First ~2aendment does not protect ". . . the advertising of a produc! as to ~ai~n there is a most S~bstmntiml showing that it is the m~in csuse of lung ~n~er, the most important cK,ase of emphysem~ a~d chronic bronchitis, and so on." Einally. it observed that-~hile, in iiqht of the n~tlonalexperlenee wi~% liquor, the prohibition of a pmrticular product such ~s cigarettes ~ay be impracticable, it does not foli~" that the promotion of the product should be permltted~ since remedial actions in h~ne promotion area m~y weli he feasible and serve tree 2"2$oiic interest.

Advertisinc Section i0 of the Federal Cigarette Lcfoeling and Advertising Act specified that the provisions of that statute "~nieh ~ffect the regular-lon Of ~dvertising should terminate on July i, 1969. The key question presented fox congressional consideraflon~ upon the expiration of the advertising provisions of the 1965 Act, was whether public awareness of the hazards of smoking might he retarded or eroded by massive cigarette advertising, pzrticu!arly on television and radio. ~Tnil~ it is true that cigarette advertising made no direct health claims, it ~as the view Gf the committeo that the constant and highly repetitivo dis- play of smoking as pleasurable might in large measure offset pmblic awareness of the h~zard. According to Reports of the Federal Trade Co1~mission, in excess of $225 million was spent by the ci~arett~ industry in 1967 in television advertising, and the anticipKted expenditures for !969 ~ould prob~ly exceed that ~n0unt. In 1968, over $21 million was spen[ for radio advertising, and a~ain the 1969 expenditures are ~ntieipated to b~ as large if not larger. Overall,

-17-¸ some $250 million in broadcast advertising ms ~nnually expended by cigarette manufacturers. The Federal Trade Commission further reported that over 25 percent of ~ne television exposures on net~ work programs re~ch young people ~nd that radio was a media particularly ~opu!ar with youth. During the pendency before Congress of Z.R. 6543, both the Federal Communications Commission and the Federal Trade Co~ssion announced proposals for regula- tory actions of their ~ in the event that the adver- tising provisions of the 1965 Act were not extended. The Federal Co~Lu~ications Commission on February 6, 1969, proposed an administrative ban on all cigarette advertisin9 on television and radio in the event that industry self-regulation of cigarette advertising would not be forthcoming, or as a~ alternative, that adver- tising of certain categories of cigarettes would be banned. ~%e Federal Comraunications Commission invited industry eo~/aents. On May 20, 1969, the Federal Trade Con~-Lission issued a Notice for the reinstitution of its !964 pro- eeedinqs for the promulgation of a Trade Regulation Rule to require thnt, after a specified date~ all

~ba~~a advewtlsements con~aaa a prescribed wakening ~O~Ice ~.~=~= Congress should extend the provisions oz the 1965 Act so as ~o ~- such action~ On ~ly i7~ i$6~. the N~tion~l Association of 2~o~dcasters ar~ounced ~ gener~i plan pursuant to which its me~bers would reduce the level Gf cigarette adver- tising on teievision and radio in prog~esslve step~ ~o ~.~, effective September i, 1~73, all cigarette advertising would cesse. Pursuant to that pian, beginning January 1. I~70~ ~ere would be a progressive ?ercentage reduction of the total n~ur~ber of ~inutes available for sale to cigarette ~dvertisers measured against the base year July I, i968, to July i, i969. Fox ~ne first nine months of 1970~ there would he 10~ reduction, ~nd ~nereafter 25% reductions successively r~mning through to September i, 1973. ~{earinc~ss ~n the ligh~ of these developments ~nd ~the~s of which the co--tree %~as made aware, the Consumer Sub~ co~ittee of the conur~ittee held hearings on July 22, I~69, for the considers%ion of cigarette advertising and particularly the possibilities of self-regulation of

s~c~ cigam-ette advertising. All me~ers of ~%e full • co;~ittee were invited to ~n~-~^ ~ and the chairman of the --~dli committee and others were in attendance. Zn addition, at ~ne committee's invitation, all five n~embers of the Federal Trade Commission were invited zo ~nd did attend, as did the Chairman of the Pederal Co~%tnications Cor~issiono Although technically ~nese hearings ~vere devoted %o consideration of H.R. 6543, they were devoted 2rincipa!ly to the subject of advertising. Developments a% the hearings were both dramatic ~nd profoundly significant, and in the comm~ittee's view went a long way toward resolving these difficult ques- tions of wide national concern. Appearing On behalf of the nine domestic cigarette manufacturing companies, Hr. Joseph F. Cul~ma~n, ill, ~hairman of the ~xecutive Committee of q'he Tobacco Institute, announced "in consideration of all of t~qe factors c~rent!y prevailing," that each company was prepared to agree to discontinue all advertising of~ cigarettes on television and radio in Septen~er, 1970, when the major contractual arrangements will expire,

-20- ~rovided ~hat the ne~ legJs!auion would include a pro-- vision that an agreer~nt to this effect should not be ieez¢~ed illegal under the ~%titr~st l~ws. 5"he eon~ttee ~qas further advised that if ~ne broadcast industr3, wou~!d si~ult~neously terminate all contractual arr~ngem, ents for ~he broadcast of cigarette advertising, ~%6 tobacco companies ~ve~pme- ~ared to ~gree to discontinue ~ll suet advertising at a~zy time after Dece~er 31, 1969, ~h~t such term.inatio: of contract obligations becaaae effective. It was the view of ~ne cigarette m~fact~rexs that the plan suggested by the ~ation~l Association of Broadcasters presented such co~plex problems on the ~opiication of any percentage reduction to indivldu~i companies, allocations of time periodss and the like, as to make it ~praeticahle. 3it was also noted that brosdcast stations ~nich were not s~bscribers to ~ne Television and Radio Codes of <qe NAB would not be bound, and that this w~uid presenz further cc~plex!tie~. The cigKrette manufacturers further s~at~d to the CO~uittee that with respect to all other advertising, they v~o~ld avoid advertising directed to y0un~ persons,