Bliley TI
Statement of Charles O. Whitley on behalf of the Tobacco Institute before the Subcommittee on Health and the Environment - Committee on Energy and Commerce - U.S. House of Representatives
Abstract
Presents draft testimony opposing H.R. 5041, "Tobacco Control and Health Protection Act" which would repeal existing legislation and: (1) restrict advertising and ban promotional activities; (2) require warnings in packaging and advertising; (3) allow state and local governments to attempt to restrict advertising; (4) impose state-based tort liability regarding additional warnings and advertising restrictions; (5) "withhold federal funds from states that do not implement the model sales-to-minors bill recently proposed"; and (6) regulate ingredients and establish a new federal agency to conduct counteradvertising (see Bates 25797).
Fields
- Company
- Tobacco Institute
- Named Organization
- American Association of Advertising Agencies
- American Civil Liberties Union
- American Health Foundation (Health Research)
Plaintiff- Association of National Advertisers
- Attorney General
- Bureau of Consumer Protection
- California Department of Health Services
- Center on Tobacco and Health
- Committee on Energy and Commerce
- Congress
- Connecticut Food Association
- Council of Economic Advisors
- Covington & Burling (Tobacco Industry law firm)
Tobacco industry law firm. Was involved in organizing the Whitecoat Project.- Federal Communications Commission (U.S. government agency regulating TV, radio)
Enforced the Fairness Doctrine against the tobacco companies; required time be provided on TV, radio for anti-smoking commercials.- Federal Communications Commission
- Federal Trade Commission
- Freedom to Advertise Coalition
- Federal Trade Commission (Enforcement agency for laws against deceptive advertising)
Enforces laws against false and deceptive advertising, including ads for tobacco products. Ensures proper display of health warnings in ads and on tobacco products;collects and reports to Congress information concerning cigarette and smokeless tobacco advertising, sales expenditures, and the tar, nicotine, and carbon monoxide content of cigarettes.- Hanyang University Institute of Environmental and Industrial Medicine (Korea)
- Health and Human Services
- Healthy Buildings International
- HHS
- House of Representatives
- Inspector General
- Institut Fresenius, NeuhoE, F.R.G.
- Institute for International Health and Development (Switzerland)
- Interagency Committee on Smoking and Health
- Maine Grocers Association
- McGill University Department of Pharmacology and Therapeutics
- National Energy Management Institute (Virginia)
- National Federation of Independent Business (Washington, D.C.)
- National Federation of Independent Business Foundation (Washington, D.C.)
- National Institute of Education
- New Hampshire Retail Grocers Association
- New York Medical College Department of Biochemistry and Molecular Biology
- New York Times
- Ninth Circuit
- Oak Ridge National Laboratory
- Office on Smoking and Health
- ORNL
- Perception Research Services, Inc.
- RCC Research and Consulting Company AG (Switzerland)
- Subcommittee on Health and the Environment
- Subcommittee on Transportation and Hazardous Materials
- Sunderland Polytechnic School of Pharmacology (United Kingdom)
- Supreme Court
- Surgeon General
- TI
- TITL
- Tobacco Institute
- Tobacco Institute Testing Laboratory
- United States Information Agency
- United States Trademark Association
- United States Treasury
- University of Burgogne Institut Universitaire de Technologie (France)
- Vermont Grocers Association
- Voice of America
- Washington Legal Foundation
- World Health Organization (Concerned with global public health)
International organization concered with public health worldwide- World Health Organization
- American Civil Liberties Union
- Named Person
- Abrams, F.
- Bell, G. Esq.
- Blau, T.H. Dr.
- Goldhaber, G. Dr.
- Kennedy, A.M. Hon.
- Kennedy, Sen.
- Koop, E. MD
- Luken, Rep.
- Mizierski, R. Dr.
- Moschis, G.P.
- Ottinger, Rep.
- Packwood, Sen.
- Partoyan, G.A.
- Pertschuk, M.
- Raffle, S.M. Dr.
- Satterfield, D.
- Sullivan, L.W. MD
- Synar, Rep.
- Van Alstyne, W. Prof.
- Van Deerlin, Rep.
- Waxman, H.A. Hon.
- Wu, J.M. Dr.
- Bell, G. Esq.
- Keyword
- 129 Cong. Rec. S2682 (daily ed. March 11, 1983)
- 15 U.S.C. 1333
- 15 U.S.C. 1335a(b)(1)(B)
- Carbon monoxide
- Center on Tobacco and Health
- Cigarettes -- Advertising, Testing, and Liability: Hearings on H.R. 4543 before the Subcomm. on Transportation, Touzism, and Haz
- Cipollone v. Liggett Group, Inc., 789 F. 2d 181 (3d Cir. 1986), cert. denied, 479 U.S. 1043 (1987)
- Code of Sampling Practices
- Comprehensive Smokeless Tobacco Health Educaton Act of 1986
- Comprehensive Smoking Education Act
- Constitutional issues
- Cosmetics
- Cross-national Survey
- Drugs
- Emphysema
- Environmental tobacco smoke
- ETS
- Fair Packaging and Labeling Act
- FD&C
- Federal Cigarette Labeling and Advertising Act, Sec. 2(l), 15 U.S.C. S 1331(l)
- Federal Cigarette Labeling and Advertising Act, Section 3
- Federal Food, Drug and Cosmetic Act
- Fetal injury
- Filters
- First Amendment
- Flavorings
- FP&L
- Fragrances
- H.R. 1250/1493
- H.R. 1824 Smoking Prevention Act
- H.R. 5041 Tobacco Control and Health Protection Act
- H.R. Rep. No. 289, 91st Cong., lst Sess. 19 (1969) (additional views of Reps. Ottinger and Van Deerlin)
- H.R. Rep. No. 805, 98th Cong., 2d Sess. 12 (1984)
- Heart disease
- Low birth weight
- Lung cancer
- Market share
- Miscarriage
- Model Sales of Tobacco Products to Minors Control Act
- Non-smokers
- Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987)
- Pennington v. Vistron, 876 F.2d 414 (5th Cir. 1989)
- Pregnancy
- Premature birth
- Public Health Service Act
- Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988)
- S. 1883/2795
- S. Rep. No. 195, 89th Cong., 1st Sess. 4 (1965)
- Smoking Prevention Act
- Stephen v. American Brands, Inc., 825 F.2d 312 (11th Cir. 1987)
- Stroke
- Tobacco Issues (Part 1): Hearing on H.R. 1250 before the Subcomm. on Transportation and Hazardous Materials Committee
- Trade secrets
- 15 U.S.C. 1333
- Region
- Korea, Democratic People's Republic of
- Korea, Republic of
- Norway
- Sweden
- United States
- Switzerland
- Canada
- Finland
- France
- Korea, Republic of
- Type
- Draft material
- Presentation materials
- Transcript
- Presentation materials
- Subject
- Additives
- Advertising regulations
- Cigarettes
- counter advertising
- Diseases
- Economic benefits
- Economic costs
- epidemiology
- #18526 (event sponsorship)
- Federal level
- Government agencies
- Health effects
- Industry front groups
- industry sponsored research
- International level
- legislation
- Legislatures
- Liability
- Local level
- marketing
- mass media
- Minimum age
- nicotine
- Regulations
- Research studies
- sales
- Sampling
- secondhand smoke
- Smoke
- smokeless tobacco
- State level
- Surveys
- tar
- testimony
- Vending machines
- Warning labels
- Young adults
- youth access
- addiction
- Advertising regulations
Document Images
71919o
The Tobacco Institute
Subco~ittee on Health and the Enviro~ent
Co~ittee on Energy and Co~erce
House of Representatives
July 12, 1990
Mr. Chairman, distinguished members of the Subcom-
mittee and former colleagues, I appreciate this opportunity
to testify on H.R. 5041, the "Tobacco Control and Health
Protection Act."
H.R. 5041 would repeal the Federal Cigarette
Labeling and Advertising Act, Sec. 3 of the Comprehensive
Smoking Education Act and the Comprehensive Smokeless
Tobacco Health Education Act of 1986. In place of that
statutory framework, H.R. 5041 would --
severely restrict the content of
cigarette advertisements and bah'promo-
tional activities, making brand advertising
effectively impossible;
- require cigarette packages and adver-
tisements to carry a series of "scare"
warnings and otherwise serve as vehicles
for government antismoking messages;
- invite state and local governments to
attempt to ban or restrict such cigarette
advertising as would continue to be per-
mitted under the bill;
TIMN 0032095
~, ~ .:/ permit individual judges and juries in
~ .~ $~~ each state to require additional warnings
~ ,~.~ ~ on packages and in advertising through the
,~, .~ imposition of tort liability;
,~'~~ - withhold federal funds from states that
~ do not implement the model sales-to-minors
bill recently proposed by the Secretary of
~~'-~ Health and Human Services; and
~ ~ ingredients and the establishment of a
Center on Tobacco and Health with power to
conduct "counteradvertising" campaigns.
Mr. Chairman, H.R. 5041 is one of the most extreme
antitobacco bills in memory. It would curtail cigarette
advertising and promotion more drastically than the legis-
lation introduced in this Congress by Raps. Luken and Synar
(H.R. 1250/1493). It would establish the most extreme
system of cigarette health warnings in the world. And, like
legislation introduced by Sen. Kennedy (S.1883/2795), it
would create a costly new federal antismoking bureaucracy to
engage in regulation and spending without any legitimate
rationale.
We strongly oppose H.R. 5041. Like the Luken and
Synar bills, which we have addressed in previous testimony,
~.R. 5041 would do nothing to reduce smoking among youth or
adults. It would, however, effectively ban protected
commercial speech in violation of the First A~endment. The
shock warnings contemplated by H.R. 5041 also would violate
the First Amendment, far exceeding the government's power to
ensure that advertising not be misleading or deceptive. The
proposed repeal of federal preemption, as we testified two
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years ago before .Rap. Luken's subcommittee, would invite
censorship in violation of the First Amendment and abandon
Congress's consistent 25-year policy of nationally uniform
regulation of cigarette advertising and labeling.
In addition, H.R. 5041 would improperly use the
power of the federal purse to conscript the states in a
national antitobacco crusade, mandating regulatory measures
that are unwarranted and that would not significantly reduce
youth access to tobacco products. Like the Kennedy bill,
H.R. 5041 would authorize regulation of tobacco ingredients
even though there has been no suggestion of health concerns
based on the comprehensive ingredient information that
already has been supplied to the Secretary of Health and
Human Services. H.R. 5041 also would require the public
disclosure of ingredient information without regard to its
trade secret status and even though no legitimate purpose
would be served by the disclosure. Finally, like the
Kennedy bill, H.R. 5041 would authorize "counteradvertising"
campaigns that raise serious First Amendment issues.
I will discuss these points in detail.
ADVERTISING AND PROMOTION
H.R. 5041 would limit tobacco product advertising
to black text on a white background and a picture of the
package. Pictures and human or cartoon figures could not
appear on the packages themselves or elsewhere in the
TIM 0032097
advertising,l/ No tobacco product trademark logo or symbol
could appear "in or as part of" an advertisement, except in
the picture of the product package (if the space on the
package permits). Sac. 6(a)(1), (2). The bill could be
construed to prohibit manufacturers from including "tar" and
nicotine information or even from mentioning that the
cigarette has a filter. See. 7(a)(1).~/
The bill also would restrict the content of
cigarette advertisements by requiring that 20 percent of
every advertisement be dedicated to one of the statutory
l/ Sac. 6(c) would grandfather pictures and human or
~artoon figures that had appeared on a package for a period
of five consecutive years before January i, 1989. However,
Sac. 8 would authorize the Secretary of Health and Human
Services to require packages to carry additional warnings
and other information that may leave little or no room for
such grandfathered pictures or human or cartoon figures.
Sac. 7(a)(1) would prohibit --
"any representation with respect to health
or safety, including representations con-
cerning the level of or removal, reduction,
or addition of ingredients, tar, nicotine,
carbon monoxide, filters, or any other
mechanism or device."
Such a "representation" could not be included in
an advertisement unless the Secretary of Health and Human
Services determined that the representation is "significant
in terms of affecting health and safety and is based upon
significant scientific agreement." Sac. 7(a)(2). The term
"representation" is defined in Sac. 15(7) to mean "any
statement, reference, or claim which is (A) expressed or
implied, (B) direct or indirect, or (C) oral, written, or
printed in graphic form or in any combination of such
forms."
TININ 0032098
warnings prescribed in Sac. 4. In addition, the bill would
authorize the Secretary of Health and Human Services to
require additional warnings or other information to be
presented. Sac. 8. Thus, while the bill purports to allow
the manufacturer to present text of its own choosing and a
picture of the product package, the text the manufacturer
would be required to provide under the bill may well leave
room for nothing else -- except for the name of the adver-
tised brand itself.~/
Beyond these restrictions on advertising content,
H.R. 5041 would ban all tobacco product advertising in or on
sports facilities, on sporting equipment, on toys and within
1000 feet of any school regularly attended by students under
the age of 21. Sac. 6(a)(3). It also would ban tobacco
product sampling (including redemption of coupons for
samples), the sale of cigarettes by retailers at discounted
prices, brand-name event sponsorship, use of tobacco product
trademarks on nontobacco articles and paid product or
product-related placements in movies, music videos, tele-
vision shows, plays, video arcade games or other forms of
entertainment. Sac. 6(b). Finally, H.R. 5041 would ban
~/ Because the bill also would require the statutory
warning to occupy 25 percent of the front and back panels of
every package of cigarettes (Sac. 3), any cigarette
advertisement that included a picture of the product package
would be required to present the statutory warning twice.
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cigarette advertising "on any audio tape, audio disc,
videotape, video arcade game, or film." Sac. 6(d).~/
I. Advertising. Mr. Chairman, H.R. 5041's
proposed restrictions on the content of cigarette adver-
tising would operate as a de facto advertising ban. Between
the material that the manufacturers would be prohibited from
including in their ads and the material that they would be
required to include, it is difficult to believe that the
sponsors of the bill expect it to operate as anything other
than a de facto advertising ban. Despite the fact that H.R.
5041 does not purport to ban all cigarette advertising and
claims to forbid only those features of cigarette advertising
that supposedly influence youth, the bill is indistinguish-
able as a practical matter from the original advertising ban
legislation introduced by Rap. Synar more than five years
a~o.~/
Our industry has addressed proposals to ban or
restrict cigarette advertising in more than a dozen hearings
since Rap. Synar introduced his ad-ban legislation in March
1986. Our position on this latest proposal is no different:
~/ The bill would reenact the ban on cigarette advertising
• n any medium of electronic communication subject to the
jurisdiction of the Federal Communications Commission. Sac.
5.
~/ See H.R. 4972, 99th Cong., 2d Sans. (1986); H.R. 1272,
100th Cong., 1st Sans. (1987); H.R. 1532, 100th Cong., ist
Sans. (1987).
TIMN 0032100
It rests on the mistaken premise that cigarette advertising
influences people to begin smoking and that banning or
severely restricting cigarette advertising would result in
reduced smoking by young people or adults. Reflecting a
basic misunderstanding of the purpose and function of
cigarette advertising and ignoring the experience of coun-
tries that have banned or severely restricted cigarette
advertising, H.R. 5041's advertising restrictions would
violate the First Amendment because they would not "directly
advance" their stated aim of reducing youth smoking
Mr Chairman our industry does not "target"
youth Our advertising is not addressed to persons to whom
cigarettes may not lawfully be sold because of their age.
Our advertising is addressed only to smokers to whom
ciga-
rettes lawfully may be sold. At the same time, smokers,
like consumers of other products, are not an undifferentiated
mass. Cigarette manufacturers, like manufacturers in other
highly competitive markets, tailor their brand messages to
particular segments of the market. Such segmentation is
critical because, among other reasons, there are more than
350 cigarette brands and brand styles on the market.~/
As numerous experts have explained in testimony
before this Subcommittee and the Subcommittee on
6/ N.Y. Times, Jan. 12, 1989, at DS.
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Transportation and Hazardous Materials -- and as Dr. Richard
Mizerski will discuss today -- the purpose and function of
advertising for any "mature" product like cigarettes is not
to stimulate overall demand for the product category but to
increase the market share of a particular brand at the
expense of competing brands and to retain brand loyalty
against other brands As the Council of Economic Advisors
has stated, tobacco product
advertising
"mainly
shifts
-
consumers among brands.''7/
Prohibiting the use of trademark logos and symbols,
pictures and colors in cigarette advertising would make
brand differentiation effectively impossible. Indeed, these
prohibitions would disable cigarette manufacturers from
designing advertisements with any reasonable prospect of
attracting attention.~/ Cigarette advertisements, reduced
to the level required by ~.R. 5041, would seldom be noticed
by the smokers who constitute their intended audience. The
only feature of a cigarette advertisement that could be
~/ Economic Report of the President 186 (1987).
~/ The United States Trademark Association has condemned
the provisions of H.R. 5041 that would prohibit the use and
display of human or carton figures or trademark logos or
symbols in advertising, and the use of pictures or human or
cartoon figures on cigarette packages. Letter from Garo A.
Partoyan, President, United States Trademark Association, to
Hon. Henry A. Waxman, July 3, 1990, p. 2.
TIMN 0032102
-9-
expected to attract attention would be a statutory warning
that says in effect, "~N'T B~ THIS PRODUCT."
The advertising provisions of H.R. 5041 would do
~ ~ nothing to reduce smoking among youth. As Michael Pertschuk,
the former Chairman of the Federal Trade Co~ission, has
stated: one really pretends that advertising is a major
determinant of smoking in this country or any other."9/ As
Dr Mizerski will explain in greater detail the only
• '
demonstrated influences on smoking by young people are the
influences of family and peers, and these influences --
unlike the asserted influence of cigarette advertising --
are both powerful and direct.
The expe~ience of countries that have banned o~
restricted cigarette advertising is instructive. In a major
cross-national study, researchers for the World Health
Organization found "no systematic differences" between the
incidence of smoking among young people in countries where
tobacco advertising is completely banned and in countries
where it is permitted.~/ In Finland, where tobacco adver-
tising has been banned completely since 1978, smoking among
juveniles, which had been declining sharply before the ban
9/ Tobacco Issues, Institute of Politics, Harvard
~niversity, April 27, 1983, Tr. 8-9.
10/ Aaro, et at., "Health Behaviour in Schoolchildren:
A
WH---O Croas-National Survey" (May 1986), I(1) Health
Promotion, p. 32.
TIMN 0032103
was imposed, increased after imposition of the ban --
ii/ In Sweden, where tobacco
especially among teenage girls.--
advertising has been severely restricted since 1979, smoking
is on the rise among teenagers and their use of smokeless
tobacco has nearly quadrupled since 1976 12/
.-
in short, cannot that banning
it
be
maintained
tobacco product advertising would "directly advance" the
goal of reducing smoking among youth--a crucial part of
the test that restrictions on commercial speech must meet in
order to satisfy the First Amendment. I respectfully refer
you to the testimony presented for The Tobacco Institute
today by Floyd Abrams on these constitutional issues. I
ii/ Rimpela, Rimpela, Hara-Etelaharju, Pylari, Siivola &
Karvonen, Young People and Smoking 1973-1989, p. 6 (1989)
(University of Helsinki, Department of Public Health
Science); Rimpela, Rimpela, Karvonen, Rahkonen, Siivola &
Kontula, "Changes in Adolescents' Health Habits 1977-1987:
Preliminary Report to the National Board of Health" (May
1987).
i~2/ National Board of Health and Welfare, Tobacco Control
xn Sweden, pp. 6-7 (1987); National Smoking and Health Asso-
ciation, Smoking Control in Sweden, pp. 6-7 (1983). In
Norway, where tobacco advertising was banned completely in
1975, adult consumption had begun to decline before the ban
was imposed and continued to decline thereafter -- though
not as quickly as before the ban. Tobacco Advertising Bans
and Consumption in 16 Countries (J. Boddewyn ed. 1986).
This moderate decline in smoking among adults in Norway
since 1975 is inconsistent with claims that smoking among
Norwegian youth has declined sharply in the past 15 years.
Claims that smoking among Norwegian youth was increasing
before cigarette advertising was banned in that country also
have been questioned. See Aaro, Haukes & Berglund, "Smoking
Among Norwegian School Children 1975-1980," Scandinavian J.
of PsgchologN (1981) 22:(3), p.165.
TIM 00 2104
