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
TIMN 0032096
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.
TIMN 0032099
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.
TIMN 0032101
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
- Ii -
submit for the record a memorandum by Covington & Burling
analyzing those issues.13/
2. Promotion. Mr. Chairman, the proposed ban on
so-called "promotion" (Sac. 6(b)) also is unjustified. In
recent years, consumer product manufacturers have relied
increasingly on promotional activities such as event
~ ~ sponsorship and sampling. Cutting across industry boun-
daries, sales promotion has been growing 2~ times faster
than general advertising.14/ The cigarette industry's ratio
of promotion to advertising is in line with the ratio for
1_~3/ It has been suggested that the imposition of a
c~garette advertising ban in Canada has accelerated the
decline in smoking by Canadians. See Lipman, "Decline of
Tobacco Sales in Canada Fuels Ad Debate," Wall St. J., June
12, 1990, at BI. If the decline in smoking by Canadians has
accelerated, this cannot plausibly be attributed to the
advertising ban. Implementation of the ban is only in its
initial phase. Billboard and point-of-sale ads, as well as
event sponsorship, continue to be permitted. The ban has
been implemented only in the print media (newspapers and
magazines) and the practical significance of this limited
ban is highly questionable. Prior to the imposition of the
print-media ban, Canada's four leading newspapers had
refused cigarette advertising. The print-media ban does not
apply to U.S. magazines, which account for two out of three
cigarette ads in magazines sold in Canada. The same article
notes that the excise tax on cigarettes has increased by
$1.00 a pack since the print-media ban took effect in
January 1989 and that smoking is as prevalent currently
among 15-19 year-olds as it has been at any time since the
mid-1980s.
14/ Advertising Age, p. S-1 (May i, 1989).
TIMN 0032105
- 12 -
other industries.15/ As with advertising, promotional
activities do not turn nonsmokers into smokers.
Sampling and premiums are time-honored methods of
introducing consumers to new brands of a product or reintro-
ducing them to old ones. Cigarette sampling is directed
toward adults who are already smokers -- not to nonsmokers
or children. Virtually all states by law prohibit the sale
or gift of cigarettes to minors, and the cigarette manufac-
turers themselves subscribe to a code of sampling practices
that strictly prohibits the distribution o~ cigarette
samples to persons under 21 There is no evidence that
sampling or the use of premiums, much less cents-off and
other discount offers, is a cause of smoking by young people
or anyone else.
Banning brand sponsorship of cultural and athletic
events likewise would be unjustified. Sponsorship makes
possible events as diverse as art exhibitions in major
museums, symphony hall concerts, folk festivals, tennis
tours and racing competitions. The support that cigarette
manufacturers contribute to such events is substantial• Its
loss would have severe financial and other consequences for
those who depend on it. There is no basis for the
supposition that seeing a cigarette brand name on a racing
1--5/ CITE TO COME.
TIMN 0032106
- 13 -
car, or associating a brand name with a jazz festival or a
tennis tournament, will make anyone start smoking or dissuade
anyone from stopping. Moreover, the cigarette manufacturers
do not sponsor sports or cultural events held primarily for
children.
The use of tobacco product trademarks in connec-
tion with nontobacco products is not a promotional technique
at all. Such trademark "transference" is a means of exploiting
a trademark that has become known and therefore has value
and to denote common origin. No one would suggest that an
advertisement for cologne under the "Polo" trademark is an
indirect advertisement for "Polo" shirts or jeans. It is,
instead, a standard attempt to seii a new brand in one
product category by taking advantage of a trademark made
popular in another. The same is true of marketing a non-
tobacco product under the trademark of a tobacco product.
The United States Trademark Association has condemned the
provision of H.R. 5041 that would ban such marketing as an
unreasonable interference with the legitimate rights of
trademark owners and a dangerous precedent.16/
16/ Letter from Garo A. Partoyan, President, United States
Trademark Association, to Hon. Henry A. Waxman, July 3,
1990, p. 2. Consistent with their view that smoking is an
adult activity, the cigarette manufacturers do not coun-
tenance association of their products with nontobacco
products that are used primarily by youth. No cigarette
manufacturer has ever authorized any manufacturer of youth-
(footnote toni'd)
TIMN 0032107
Finally, we oppose the proposal to prohibit
payments to have the brand name of a tobacco product appear
in a movie or play. Arrangements of this type involve a
wide variety of products, including soft drinks, automobiles
and computers. Although cigarette manufacturers rarely make
such payments, prohibiting them from doing so would serve no
legitimate purpose. Just as it defies common sense to
• believe that anyone would be prompted to begin smoking or be
discouraged from stopping by attending a sporting or
cultural event sponsored in the name of a cigarette brand,
it would be difficult to imagine anyone beginning or
continuing to smoke because a particular cigarette brand was
visible in a film. No cigarette company solicits filmmakers
to use or display tobacco products. Consequently, the
effect of the current proposal would be limited to
prohibiting arrangements to ensure the appearance (however
fleeting) of one brand rather than another -- hardly a
matter justifying the attention or intervention of the
federal government.
(footnote cont'd)
oriented items (including video games) to incorporate into
their products any tobacco product logo, trade name or
trademark. The cigarette manufacturers regard any such use
a violation of their trademark rights and, as with any
trademark infringement, take legal action to protect those
rights.
TEVIN 0032108
- 15 -
WARNINGS
Secs. 3(a) and 4(a) would replace the four
~xisting warnings on cigarette packages and in cigarette
~ a nzn s "sli htl modified for
~J~.~advertising with nine new w r " g ( g y
billboard advertising).17/ The new warnlngs, whzch would not
>be attributed to the Surgeon General or identified in any
other way as government warnings, would be as follows:
WARNING: Cigarettes Cause Lung Cancer
WARNING: Cigarettes Cause Emphysema
WARNING: Cigarettes Cause Heart Disease
WARNING- Tobacco Is an Addicting Drug
WARNING: Quitting Cigarettes Will Improve Health
WARNING: Cigarettes May Cause Fetal Injury or
Miscarriage
WARNING: Cigarette Smoke is Harmful to Nonsmokers
17/ The four warnings currently required under the Federal
Cigarette Labeling and Advertising Act (15 U.S.C. ~ 1333)
are as follows:
"SURGEON GENERAL'S WARNING: Smoking Causes
Lung Cancer, Heart Disease, Emphysema, And
May Complicate Pregnancy."
"SURGEON GENERAL'S WARNING: Quitting
Smoking Now Greatly Reduces Serious Risks
to Your Health."
"SURGEON GENERAL'S WARNING: Smoking By
Pregnant Women May Result in Fetal Injury,
Premature Birth, And Low Birth Weight."
"SURGEON GENERAL'S WARNING: Cigarette Smoke
Contains Carbon Monoxide."
T1MN 0032109
- 16 -
WARNING: Cigarettes Cause Stroke"
The bill would require the word "WARNING" to be
in "
printed red letters.
packages, warnings would have to appear at
On
the
the top of the front and back panels of the pack, account
for at least 25 percent of the panel an4 appear in white-
on-black or black-on-white within a contrasting border.
Sac. 3(b).I~/ In advertising, the warnings would have to
appear at the top of the advertisement, account for at least
20 percent of the advertising area and appear in white-
on-black or black-on-white within a contrasting border.
Sac. 41b).
Under H.R. 5041, the nine warnings would rotate on
packages so as to ensure "even distribution of the labels
among all brands of the cigarettes * * * of each manufacturer
each year." Sac. 3(c). The warnings would rotate quarterly
in advertisements other than billboard advertisements.
Warnings in billboard advertisements would be rotated
"annually or whenever the advertisement is changed, which-
ever occurs first." Sac. 4(c). Rotation would be pursuant
to plans submitted by the manufacturers and approved by the
18/ The Canadian Government also requires warnings the
front and back panels of cigarette packages. It does so,
however, not for the sake of repetition but rather ensure
that the warnings appear in the two national languages,
French and English.
TIMN 0032110
Secretary of Health and Human Services, not the Federal
Trade Commission. The definition of "advertisement" under
the bill is so broad 6hat, literally read, a manufacturer
could not utter the name of one of its products in any con-
text whatsoever -- even in testimony to Congress -- without
having to provide one of the required warnings. See Sec.
15(1)(D),(E).1--9/
Mr. Chairman, these proposed new warnings are
unjustified and far exceed the government's power to dictate
the content of advertising and labeling. They clearly are
not intended to serve the traditional function of health
warnings in cigarette advertising and labeling -- to ensure
that a person's decision "to smoke or not to smoke" is an
19/ Sec. 15(I) defines "advertisement" to mean --
(A) all newspaper and magazine
advertisements and advertising inserts,
billboards, posters, signs, decals,
banners, matchbook advertising, point-
of-purchase display material and all other
material used for promoting the sale or
consumption of tobacco products to
consumers,
(B) advertising promotion allowances,
(C) utilitarian items,
(D) any reference to the brand name of
a tobacco product, and
(E) any other means used to promote
the identification or purchase of tobacco
products."
TIMN 0032111
informed one.20/ The warnings are intended to scare people
away from smoking -- to intimidate rather than inform. By
prescribing warnings that appeal to fear, H.R. 5041 seeks
not to enable people to make an "informed" choice but to
induce people to make the choice that the bill's sponsors
deem to be "correct."
It is too late in the day to suggest that the new
warnings are necessary because Americans are unaware of the
claimed risks of smoking. As Dr. Gerald M. Goldhaber has
testified before and will explain again in his testimony
today on behalf of The Tobacco Institute, "the level of
public awareness on smoking and health issues is virtually
unprecedented in our national experience." More Americans
are aware of the allegations with respect to smoking and
health than can identify George Washington or know when our
Nation declared its Independence. Nearly every American
over the age of five believes smoking is harmful but only 1
of 3 Americans knows who delivered the Sermon on the Mount.
20/ See Federal Cigarette Labeling and Advertising Act,
Sec. 2(I), 15 U.S.C. ~ 1331(1); S. Rep. No. 195, 89th Cong.,
1st Sess. 4 (1965); H.R. Rep. No. 289, 91st Cong., ist Sess.
19 (1969) (additional views of Reps. Ottinger and Van
Deerlin); ~.R. Rep. No. 805, 98th Cong., 2d Sess. 12 (1984).
When Congress most recently revised the health warnings in
1984, Sen. Packwood stated that the purpose of the
legislation was to "provide the American public with more
information about the health hazards of cigarette smoking,
so that they may make an informed choice as to whether or
not to smoke." 129 Cong. Rec. S2682 (daily ed. March ii,
1983).
TIMN 0032112
Young people, especially, are aware of the risks
attributed to smoking. As the Surgeon General has
stated,
"[b]y the time they reach seventh grade, the vast majority
,,21/
of children believe smoking is dangerous to one's health u
According to a 1979 survey of 2,639 boys and girls aged
12-18 conducted by the National Institute of Education, over
96 percent of those questioned said they believed that "smoking
is harmful to health.''2-2/ Of 895 children and adolescents
questioned in a recent survey, over 98 percent said they
believed smoking is harmful and "accurately named one or
more body parts that are adversely affected by smoking.''2-~3/
Young people start to smoke not because they are unaware of
the claimed health risks of smoking or because of cigarette
advertising. As Dr. Goldhaber notes in his statement,
however, the scare warnings proposed by H.R. 5041 actually
• ay glamorize smoking for some youth -- the "boomerang"
effect.
Two recent studies have suggested that people do
not necessarily read, word for word, the health warnings in
21/ Smoking and Health: A Report of the Surgeon General,
p. 17-10 (1979).
22/ Chilton Research Services, Teenage Smoking: Immediate
and Long Term Patterns, pp. 18-19 (National Institute of
Education, Dep't of Health and Human Servuces, 1979).
23/ Leventhal, et el., "Is the Smoking Decision an
'Informed Choice'?", JAMA, vol. 257, pp. 3373-76 (1987).
TIMN 0032113
every cigarette advertisement they see.-- But these studies
do not purport to show that viewers are unaware that the
advertisements carry the Surgeon General's health warnings
or fail to notice the telltale box containing the warning.
As two experts, reviewing one of the studies, have
commented:
"Noticing the warning box peripherally
would have served to remind a subject that
the warning was there• We do not see much
practical difference between knowing that
one of the Surgeon General's warnings is in
an advertisement and knowing which one it
is. One could analogize the warning box to
an oversized 'union bug' that instantly
marks the work as a product of union labor
but requires closer scrutiny to identify
the union local that did the job. Another
analogy, though perhaps ironic, might be to
the Good Housekeeping Seal of Approval.
You know it the moment see it, and you
you
know what it signifies -- without necessarily
knowing what it actually says."25/
In short, to be "effective," the health warnings need not be
read anew, as though for the first time, each time a ciga-
rette advertisement is viewed.
24/ Fisher, et el., "Recall and Eye Tracking Study of
Adolescents Viewing Tobacco Advertisements," JAMA, vol. 261,
p. 84 (1989); Davis, et el., "The Surgeon General's Warnings
in Outdoor Cigarette Advertising -- Are They Readable,"
JAMA, vol. 261, p. 90 (1989).
25/ Young & Moschis, "Review of Eye Tracking and Recall of
A--~olescents Viewing Tobacco Advertisements," pp. 9-10 (Jan.
1989) (unpublished manuscript). Dr. George P. Moschis, a
professor of marketing at Georgia State University, was one
of the reviewers to whom JAMA submitted the Fisher study for
peer review. Elliott C. Young is President of Perception
Research Services, Inc., a major market research firm.
TIMN 0032114
- 21 -
Mr. Chairman, the proposed warnings not only are
unnecessary -- they would violate the First Amendment. As
Floyd Abrams discusses in his statement, the Supreme Court
has stated that "unduly burdensome disclosure requirements
might offend the First Amendment by chilling protected expres-
sion."26/ There can be little doubt that the warning and
information requirements of H.R. 5041 are intended to
achieve just such a chilling effect -- especially when
combined with the restrictions that the bill would impose on
the content of cigarette advertisements.
The Supreme Court also has made clear that the
government may dictate the content of labeling and
advertising only as necessary to prevent their being
deceptive.27/ Further refinements in cigarette health
warnings are unnecessary to serve that purpose, given the
26/ Zauderer v. Office of Disciplinary Counsel, 471 U.S.
626, 652 (1985). See also Peel v. Attorney Registration and
Disciplinary Comm'n, 58 U.S.L.W. 4684, 4692 n.2 (U.S. May
~, 1990) (Marshall, J., joined by Brennan, J., concurring
~n the judgment).
2_!7/ See, e.g., Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 771 n.24
(1976); In re R.M.J., 455 U.S. 191, 202-03 (1982); Bates v.
State Bar, 433 U.S. 350, 385 (1977). "A remedy for decep-
tive advertising which is broader than is necessary to
prevent future deception or correct past deception is
impermissible under the First Amendment." Encyclopedia
Britannica, Inc. v. FTC, 605 F.2d 964, 972 (7th Cir. 1979),
cert. denied, 445 U.S. 934 (1980). See also Beneficial
Corp. v. FTC, 542 F.2d 611, 618-20 (3d Cir. 1976), cert.
denied, 430 U.S. 983 (1977).
TEVIN 0032115
nearly universal belief among the public that smoking is
harmful. AS the Ninth Circuit stated in an opinion by then
Judge Anthony M. Kennedy, "there is no deception * * *
the public holds a belief contrary to material facts
unless
not disclosed.''28/ In fact, the particular requirements
proposed by H R. 5041 are not intended to prevent deception
at all but to scare people away from smoking.
While the government may act to prevent deception,
it may not (consistent with the First Amendment) require
cigarette advertisements to serve as vehicles for anti-
smoking messages. A speaker -- even a corporate speaker --
cannot be forced "to associate with speech with which [the
speaker] disagrees.''29/ "For corporations, as for indivi-
duals, the choice to speak includes the choice of what not
to say."30/ The warnings prescribed by H.R. 5041 would be
particularly objectionable in this regard because, unlike
the existing health warnings, they would not be attributed
to the Surgeon General or otherwise identified as government
warnings.
28/ FTC v. Simeon Management Corp., 532 F.2d 708, 716 (9th
Cir. 1976).
29/ Pacific Gas & Electric Co. v. PUC, 475 U.S. i, 15
(1986).
30/ Id. at 16. See also West Virginia Board of Education
v. Barnette, 319 U.S. 624 (1943); Wooley v. Maynard, 430
U.S. 705 (1977); Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974).
TIMN 0032116
The cigarette manufacturers vigorously dispute the
warnlng statements proposed by H.R. 5041 and should not be
~ required to present messages with which they disagree as
~.~
9hough such messages were their own. We have presented our
~'~'~substantive objections to the existing health warnings in
[]testimony before this Subcommittee on the legislation enacted
~as the Comprehensive Smoking Education Act 31/ We likewise
~object to the two health warnings proposed in H.R. 5041 that
~ are substantively new and qualitatively different from the
~ existin~ warnings -- the warning concerning the asserted
~ health risks to nonsmokers of exposure to environmental
~ tobacco smoke (ETS) and the warning that "Tobacco Is an
Addicting Drug."
(a) ETS. Mr. Chairman, as we have testified in
other hearings and as Dr. W. Gary Flamm discusses in his
written statement on behalf of The Tobacco Institute today
(which we respectfully request be included in the record of
this hearing), it has not been demonstrated that exposure to
ETS presents a health risk for nonsmokers. The most recently
published critical analysis of the scientific literature,
for example, concludes that verifying "the possible
31~ Although no "stroke" warning was proposed, The Tobacco
~nstitute also stated its position with respect to
cerebrovascular disease. Smoking Prevention Act: Hearings
on H.R. 1824 before the Subcomm. on Health and the
Environment of the House Energg and Commerce Comm., 98th
Cong., ist Sess. 670-72 (1983).
TIMN 0032117
association" between ETS and lung cancer remains "an impor-
tant challenge.''32/ In the expert judgment of many respected
scientists here and abroad, the epidemiological studies fall
far short of demonstrating that ETS causes disease in or
adversely affects the health of nonsmokers.
That, indeed, was the "consensus view" of more
than 80 scientists from around the world who participated
last November in an international symposium on ETS at McSill
University in Montreal Canada 33/ One speaker after another
at this symposium took issue with the claim that ETS has
been shown to present a health hazard to no~smokers. Efforts
also were made to understand the contrary picture disseminated
32/ CITE TO COME. This study was performed by researchers
at the American Health Foundation and was funded by the
Department of Health and Human Services.
33/ Wu, "Summary and Concluding Remarks," Environmental
Tobacco Smoke: Proceedings of the International Symposium at
McGill University 1989, p. 275 (D. Ecobichon & J. Wu ass.
1990). The McGill symposium was made possible by a tobacco
industry grant and by grants and other support from the
Department of Pharmacology and Therapeutics, McGill Univer-
sity, Montreal, Canada; Healthy Buildings International,
Fairfax, Virginia; Institut Fresenius, Neuhof, F.R.G.;
Institut Universitaire de Technologic de Dijon, University
of Burgogne, Dijon, France; Institute of Environmental and
Industrial Medicine, Hanyang University, Seoul, Korea;
Institute for International Health and Development, Geneva,
Switzerland; National Energy Management Institute,
Alexandria, Virginia; The National Federation of Independent
Business, Washington, D.C.; The National Federation of
Independent Business Foundation, Washington, D.C.; RCC
Research and Consulting Company AG, Itingen, Switzerland;
and the School of Pharmacology, Sunderland Polytechnic, Tyne
and Wear, U.K.
TIMN 0032118
in numerous press reports -- a phenomenon attributed by many
of the participants to lack of familiarity with scientific
methods and procedures, reporting bias and political pres-
sures that have prompted individual researchers to overstate
or to avoid explaining the meaning of their results.
Summarizing the proceedings, Dr. Joseph M. Wu of
the Department of Biochemistry and Molecular Biology of New
York Medical College stated, "it appears premature to take
any sort of regulatory action with regard to ~TS at this
point. Clearly, more and better research needs to be done.''34/
For this basic reason, the ETS warning proposed by H R. 5041
is unjustified.
The proposed ETS warning also is unjustified for a
second reason. According to data reported by the Office on
Smoking and Health, 88 percent of the public (93 percent of
never smokers, 89 percent of former smokers and 79 percent
of current smokers) believe that ETa is generally harmful.35/
Corresponding to the widespread belief that ETS is harmful,
many state and local governments have restricted (or even
banned) smoking in public places and workplaces and many
private employers have restricted or banned workplace smoking
on their own initiative. In short, even though ETa exposure
34/ Ibid.
3--5/ MMWR, vol. 37, NO. 15, p. 15.
TIMN 0032119
has not been shown to be harmful, most Americans believe it
to be harmful. If the purpose of a warning is to ensure
~hat the decision "to smoke or not to smoke" will be an
~.~informed one, an ETS warning on cigarette packages and in
~cigarette advertising is clearly unnecessary.
(b) "Addiction." The "addiction" warning pre-
scribed by H.R. 5041 likewise is unjustified. Mr. Chairman,
~this issue was the subject of a hearing in 1988 before this
Subcommittee. At that hearing, we testified against an
addiction warning on the ground that calling cigarette
smoking an "addiction" trivializes, and almost mocks, the
serious narcotic and other hard drug problems faced by our
society and undermines efforts to combat drug abuse. In
addition, we noted that the "addiction" claim with respect
to smoking is without medical or scientific foundation,
notwithstanding the comments of former Surgeon General Koop.
Such a claim defies all logic when, according to
the Surgeon General, nearly half of all Americans alive who
ever smoked have quit,36/ and most of the 41 million smokers
who quit did so without formal treatment programs or smoking
cessation devices.3-7/ Ironically, the presence of an
36/ Reducing the Health Consequences of Smoking:
A Report
o-~ the Surgeon General 292 (1989).
3--7/ The Health Consequences of Smoking -- Nicotine
Addiction: A Report of the Surgeon General, p. 466 (1988).
See also id. at 577, 580-81 (trends in quitting activity).
TIMN 0032120
"addiction" warning could serve to discourage some smokers
~from quitting -- and certainly would undercut the aim of one
~f the warnings required under H.R. 5041, "Quitting Ciga-
~ ~ ~~'~'~rettes Will Improve Health."
For these reasons, and the reasons discussed by
~ ~Dr. Theodore H. Blau in his written statement on behalf of
The Tobacco institute (which I respectfully request be
included in the record of this hearing), an addiction
. .
warnzng ~s unwarranted and could be harmful. I
respectfully
request, additionally, that my testimony and the supporting
testimony of Dr. Stephen M. Raffle and Dr. Blau at the 1988
hearing before ~his Subco~ittee be included in the record
of this hearing.38/
Nearly a decade ago, Mr. Chairman, the Federal
Trade Co~ission staff reco~ended health warnings in
cigarette advertising that would be "large enough to be
noticed, but small enough to permit the advertiser to
co~unicate its desired message.''3~/ The staff's recom-
mendations assumed a warning that would "occupy only a small
percentage of the [advertising] in print media, sidewalk,
38/ Health Consequences of Smoking -- Nicotine Addiction:
Hearing before the Subcomm. on Health and the Environment of
the House Comm. on ~nerg~ and Commerce, 100th Cong., 2d
Sees. 299-39 (1988).
39/ Report on the Cigarette Advertising Investigation, p.
5-21.
TIMN 0032121
transit and point of purchase ads" and would "not occupy
~space needed to co=unicate the manufacturers' message."4--~0/
~ e sea r stressea that the warnings should not take up "an
~undue amount of space.''41/ Michael Pertschuk, the Chairman
of the FTC at the time, stated that the premise of the
warning legislation arising from the 1981 staff report "is
not that it will have a major impact on behavior" but
instead would promote informed choice.42/ It is ironic, to
say the least, that the warning format proposed by H.R. 5041
so of the
is
inconsistent
with
the
r ecom~nenda t ions
and the philosophy expressed by Chairman Pertschuk.
PREEMPTION
H.R. 5041 would repeal the provisions of the
Federal Cigarette Labeling and Advertising Act that declare
a federal policy of uniform national regulation of cigarette
labeling and advertising and preempt state and local regula-
tion of cigarette advertising and promotion. See 15 U.S.C.
~ 1331, 1334. In place of these provisions, H.R. 5041
would grant state and local governments authority to regu-
late what cigarette advertising would continue to be
40/ Id. at p. 5-21 to 5-22.
z4. at p. 5-2 .
42/ Tobacco Issues, Institute of Politics,
Harvard
University, April 17, 1983, Tr. 9.
TIMN 0032122
permitted under the bill and would empower judges and juries
in each jurisdiction to second-guess the warnings required
by Congress and impose liability on the manufacturers for
failing to provide warnings deemed, after the fact, to be
required under a state's tort law. Sec. 13. We strongly
oppose this provision o~ the bill.
Sec. 13 would Balkanize regulation of the adver-
tisin~ and labeling of a nationally marketed product -- an
outcome at odds with Pirst ~endment values. In addition,
antismoking advocates undoubtedly would attempt to exploit
the weakening of federal preemption to justify prohibitive
state and local advertising requirements, or even outright
advertising bans. For these reasons, similar legislation
has been opposed in the last two Congresses by the American
Civil Liberties Union, the Washington Legal Foundation, the
Freedom To Advertise Coalition, the Association of National
Advertisers and the American Association of Advertising
Agencies, among others.43/
In ostensible deference to federal policies
favoring national uniformity in tobacco product warning
4--3/ T~bacco Issues (Part I): Hearing on H.R. 1250 before
the Subcomm. on Transportation and Hazardous Materials of
the House Comm. on Energ~ and Commerce, 101st Cong., ist
Sess. (1989); Cigarettes -- Advertising, Testing, and
Liability: Hearings on H.R. 4543 before the Subcomm. on
Transportation, Tourism, and Hazardous Materials of the
House Comm. on Energ~ and Commerce, 100th Cong., 2d Sess.
394 (1988).
TIMN 0032123
~equirements, Sec. 13(b) would preclude state and local
~]authorities from requiring their own
wa
rn
i ngs
on
product
~packages or advertisements by "statute or regulation." But
~Sec. 13(c) specifies that the bill and the laws that the
bill would replace do not "relieve any person from liability
~ to any other person at common law or under State statutory
law." This proviso might well be construed to license the
imposition of product warning requirements by judges and
juries in product liability cases pursuant to state tort
law.
In testifying against a similar relaxation of
federal preemption two summers ago, former Attorney General
Griffin Bell stated that "[t]he jury system should not be
making the decision as to which warning is required to
protect the public health."4-4/ He stated, and we agree:
"Where an issue has been determined to be
national in scope, as with cigarette
advertising and promotion, the rule of law
should be part of a uniform national policy
instead of being decided in hundreds and
even thousands of jury rooms where each
jury is free to essentially rebalance
Congress' express findings."45/
44/ Id. at 291.
TIMN 0032124
I co,end ta your special attention, in this regard, the
eloquent testimony of our late former colleague, David
Satterfield, before Rep. Luken's subco~ittee in 1988.4~/
STATE ~CCO S~ES REGULATION
H.R. 5041 would withhold federal funds under the
Public Health Service Act from any state that does not
establish a special bureaucracy to police tobacco sales ban
tobacco
'
product sales to persons under 19, require tobacco
retailers to carry state licenses, ban cigarette vending
machines except in places open only to adults by law and
provide for civil penalties and license suspension and
revocation for tobacco sales to minors. Sec. 9. In effect,
these provisions would use the power of the purse to coerce
the states into enacting the Model Sales of Tobacco Products
to Minors Control Act proposed recently by the Secretary of
Health and H~an Services.
46/ Id. at 374. Five federal Courts of Appeals and approx-
i-~ately 30 other state and federal courts have recognized
that the Federal Cigarette Labeling and Advertising Act
prevents judges and juries, as well as state and local
legislative and regulatory bodies, from questioning the
adequaqy of the warnings drafted and ~rescribed by the
Congress. The suggestion that some have made that these
courts were misinformed or have misinterpreted Congress'
intent is, we submit, wide of the mark. See Penniagton v.
Vistron, 876 F.2d 414 (Sth Cir. 1989); Rogsdon v. R.J.
Re~nolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988); Palmer
v. Liggett Group, Inc., 825 F.2d 620 (ist Cir. 1987);
Stephen v. American Brands, Inc., 825 F.2d 312 (llth Cir.
1987); Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d
Cir. 1986), cert. denied, 479 U.S. 1043 (1987).
TIMN 0032125
Mr. Chairman, the federal government should not
~sing the power of the United States Treasury to dictate to
~he states in the way contemplated by H R 5041. States
~hould be free to address the issue of tobacco sales to
~~inors in ways they deem to be appropriate -- generally by
~enforcing state laws already on the books that prohibit such
~-)sales. When state and local authorities commit themselves
~to vigorous enforcement of such laws, the results can be
~,~dramatic indeed. The Inspector General of the Department of
~-'a~Health and Human Services recently reported that in a single
~state (Utah) authorities issued nearly 4,500 violations to
minors for purchasing and/or possessing tobacco products in
Neither should states be required t~ establish
licensing systems t~ address tobacco sales to minors. No
~ne seriously contends that licensing is the way tQ reduce
drinking among youth. There is no real basis to believe
that licensing would succeed in reducing youth smoking. The
burden ~n retailers, h~wever, could be severe. As represen-
tatives of four New England retail associations, criticizing
the Secretary's model law, recently told the Interagency
Co~it~ee on Smoking and Health:
47/ Office of the Inspector General, Youth Access to
Cigarettes, p. 3 (May 1990).
TIMN 0032126
~<~.~ "Tobacco sales can represent up to 25% of a
• ~ retailer's gross sales. The imposition of
~ ~ a licensing structure that would require
~ ~ selective siting, community approval and
~ restricted availability, as with alcohol,
.. ~-'~_~~~~' would mean some retailers would not survive.
Some states * * * restrict some alcohol
sales to state-operated stores. Other
~.~ ~ sales licenses are restricted to retailers
~ ~-~'&~:~~" ~_ ~ ~ in remote locations where state-run opera-
tions would not be profitable."48/
~<~ Confirming these fears, the Minneapolis City Council cur-
rently is considering a proposed ordinance that would
deny a local retail sales license for tobacco in
buildings owned, or in space leased, by the city.
Nor is there any good reason to force states to
ban cigarette vending machines from all places from which
minors are not barred by law. States generally do not by
law prohibit minors from visiting industrial plants and
offices. In most jurisdictions, in fact, minors are allowed
in bars and cocktail lounges -- even though minors may not
be served alcoholic beverages. Yet such locations, which
account for nearly eight out of ten cigarette vending
machines, are rarely frequented by minors. It makes no
sense to ban vending machines in such places as a means of
preventing their use by minors. In places frequented by
48/ Statement of Connecticut Food Association, Maine
Grocers Association, New Hampshire Retail Grocers
Association, Vermont Grocers Association before the
Interagency Committee on Smoking and Health, p. 3 (May 31,
1990).
TIMN 0032127
minors, unlawful sales can be prevented by requiring
supervision of cigarette vending machines.
INGREDIENTS AND CONSTITUENTS
(a) Ingredients. H.R. 5041 would require every
tobacco product to state on its package "the ingredients of
the product in descending order of prominence." See.
7(b)(1)(B).4-~/~/ The Center on Tobacco and Health established
under the bill would be directed to "educate the public
concerning the health consequences of using tobacco products,
including information on harmful constituents of, and
additives to, tobacco products." Sac. 12(b)(2)(A). The
bill further provides that the Secretary may limit or forbid
the use of any ingredient in a tobacco product (other than
tobacco) that, in his judgment, "either by itselfor in
conjunction with any other such ingredient, is unsafe or
presents increased risks to health to the consumer or
general public." Sac. 7(c).
Mr. Chairman, these provisions would either
duplicate existing law or change existing law without any
49/ Sac. 15(6) defines "ingredient" as --
"any substance the intended use of which results,
or may reasonably be expected to result, directly
or indirectly, in its becoming a component or
otherwise affecting the character of any tobacco
product."
TIMN 0032128
demonstrable justification. Such provisions also would
require public disclosure of commercially sensitive informa-
tion that currently (and quite appropriately) is protected
from public disclosure as trade secret or confidential
information. Such disclosure would produce no public
benefit.
Under the Comprehensive Smoking Education Act,
enacted in 1984, the cigarette manufacturers are required to
provide the Secretary of ~ealth and Euman Services on an
annual basis "a list of the ingredients added to tobacco in
the manufacture of cigarettes." 15 U.S.C.
list provided to the Secretary need not identify the company
1335a(a).
The
involved or the brand of cigarettes that contains the
ingredients. Ibid. Congress considered the disclosure of
cigarette ingredient information on this basis to be adequate
to "permit the federal government to initiate the toxicologic
research necessary to measure any health risk posed by the
addition of additives and other ingredients to cigarettes
during the manufacturing process." H.R. Rep. No. 805, 98th
Cong., 2d Sees. 21 (1984).
The Secretary, in turn, is directed by the Compre-
hensive Smoking Education Act to transmit to Congress
periodic reports advising Congress of any information
pertaining to such ingredients "which in the judgement of
the Secretary poses a health risk to cigarette smokers." 15
U.S.C. ~ 1335a(b)(1)(B). Each year since 1986, the six
TIMN 0032129
~ ~ major cigarette manufac£urers have jointly submitted ingredient
~ ~ lists to the Secretary as required by the 1984 legislation.
~ " recent was submitted just this past December.
The
most
list
.~ In 1988, Surgeon General Koop indicated that the Department
~ ~ of Health and Human Services was actively reviewing the
~ ingredient lists that had been submitted.
~~:~ There is no reason to believe that this existing
- ~ review mechanism is inadequate and needs to be expanded or
~.~.~ replaced. The Secretary of Health and Human Services
~ ~ / recently testified tha~ the Administration considers legis-
j~ lation authorizing the investigation or regulation of
tobacco ingredients to be "unnecessary.''50/ Indeed, the
Secretary himself suggested that tobacco ingredients are a
"peripheral" concern.51/
Neither is there any justification for requiring
public disclosure of tobacco ingredients. Because
information concerning the ingredients used to manufacture
particular cigarette brands is competitively sensitive,
Congress provided in the Comprehensive Smoking Education Act
that the ingredient information supplied to the Secretary
50/ Statement of Louis W. Sullivan, .M.D., Secretary of
Health and Human Services, before the Senate Comm. on Health
and Human Resources, Feb. 20, 1990, p. 8.
51/ Tobacco Education and Control Act: Hearings on S. 1883
before the Senate Comm. on Labor and Human Resources, 101st
Cong., 2d Seas., Tr. 58 (Feb. 20, 1990) (testimony of Dr.
Louis W. Sullivan, Secretary of Health and Human Services).
TIMN 0032130
- 37 -
"shall be treated as trade secret or confidential informa-
tion." Such information is exempt from disclosure under the
Freedom of Information Act and criminal penalties are
established for unauthorized disclosure. Id. ~ 1335a(b)(2)(A).
The Act specifically requires the Secretary to establish
"written procedures to assure the confidentiality of [such]
information." Id. ~ 1335a(b)(2)(C). He has done so. See
In 1984, Congress considered and rejected public
disclosure of ingredient information -- and for good reason.
As originally introduced in the 97th Congress, the House
version of the legislation ultimately enacted in 1984 would
have required ingredients to be listed on cigarette
packages.52/ Opposing such a requirement, The Tobacco
Institute's witness explained:
"Cigarette manufacturers use a variety of
ingredients to enhance flavor and appearance
and preserve shelf life. These ingredients
are among each manufacturer's most closely
held trade secrets. There is no justifica-
tion for denying cigarette manufacturers
the trade secret protection extended to
every other consumer product industry."53/
The Institute's witness also pointed out that requiring
package disclosure of ingredients, "combined with the health
52/ ~.R. 5653, 97th Cong., 2d Sees., p. 7 (March l, 1982).
53/ See Comprehensive Smoking Prevention Education Act:
Hearings on H.R. 5653 and H.R. 4957 before the Subcomm. on
Health and the Environment of the House Comm. on Energ~ and
Commerce, 97~h Cong., 2d Sess. 355 (1982).
TIMN 0032131
warnings and tar, nicotine and carbon monoxide numbers,
would turn cigarette packages into little textbooks, likely
~ausing smokers to ignore it all." Ibid.
Congress responded to these objections in the 1984
_~egislation by providing trade secret protection to the
~~ingredient information supplied to the Secretary. In
~addition, it made clear that ingredient information was to
.
~be submitted to the Secretary In a manner that does not
identify the company involved or the brand of cigarettes
containing particular ingredients.
The cons~deratxons that supported Congress s
decision to treat ingredient information in this way in 1984
remain valid today. Sim_lar considerations are reflected in
broad ingredient disclosure exemptions under the Federal
Food, Drug and Cosmetic ("FD&C") Act and the Fair Packaging
and Labeling ("FP&L") Act. Indeed, Mr. Chairman, it is fair
to say that most tobacco ingredients would be exempt from
disclosure under these laws and the implementing regulations
of the Food and Drug Administration.
(i) Food. Congress explicitly has exempted
flavorings, colorings and spices used in food from disclo-
sure under Sac. 403 of the FD&C Act, 21 U.S.C. ~ 343.54/ It
5--4/ Sac. 403(g) (2) requires the label of any food for
which a "standard of identity" has been prescribed by
(footnote cont'd)
TIMN 0032132
requires the FDA, mor~ver, to establish further exemptions
~om disclosure for food ingredients "to the extent that
~_isclosure] is impractical, or results in deception or
~nfair competition." Ibid. See, e.g., 21 C.F.R. ~ 101.100(a)
~3) (1988) (exempting "incidental additives," including
'processing-- aids," from disclosure).
(2) Cosmetics. The FDA, exercising its authority
~under Sec. 5(c)131 of the FP&L Act, 15 U.S.C. $ 1454(c)(3),
likewise has exempted from disclosure the ingredients of
flavors and fragrances used in cosmetics. 21 C.F.R. ~ 701.3(a)
(1989). The FDA explained that these were "the two types of
cosmetic ingredients which would be the most likely of any
to create trade secret issues." 38 Fed. Reg. 28,912 (1973).
The FDA also noted that disclosure of such ingredients
"would be impractical." Id. at 28,913. See, e.g., 21
C.F.R. $ 701.3(1)(2) (1989) (exempting "incidental
ingredients," including "processing aids," from disclosure).
The FDA concluded that it would not be impractical to
(footnote cont'd)
regulation to list, insofar as may be required by regula-
tion, "the common names of optional ingredients (other than
spices, flavoring, and coloring) present in such food." Sec.
403(i) (2) requires the label of any food fabricated from
two or more ingredients, for which a standard of identity
has not been prescribed, to list "the common or usual name
Of each such ingredient; except that spices, flavorings, and
colorings, other than th~se sold as such, may be designated
as spices, flavorings, and colorings, without naming each."
TIMN 0032133
disclose by name colors used in cosmetics but the agency
~arefully provided that a color whose identity is a trade
,
~secret may be exempted from disclosure. 38 Fed. Reg. 28 913
[](1973). The FDA has recognized, generally, that Sec.
5(c)(3) of the FP&L Act does not authorize it to promulgate
ingredient labeling regulations that require the divulging
of trade secrets. Id. at 28,912. See 21 C.F.R. § 720.8
(1988) (specifying procedure for exempting ingredients from
public disclosure on trade secret grounds).
(3) Drugs. Sec. 502(e)(i) of the FD&C Act, which
addresses disclosure of ingredients used to manufacture
drugs, does not require disclosure of "inactive ingredients."
See 21 U.S.C. § 352(e)(i). Such ingredients typically
include binders, flavors, colors, preservatives and fillers•
The FD&C Act requires the FDA to establish further exemptions
from disclosure for active ingredients "to the extent that
[disclosure] is impractical." Ibid.
Most of the ingredients added to tobacco in the
manufacture of cigarettes are flavorings and fragrances.
Such ingredients would be exempt from disclosure under Sec.
403 of the FD&C Act and Sec. 5(c)(3) of the FP&L Act or
otherwise would qualify for exemption from disclosure on
trade secret or impracticality grounds.
(b) Constituents. As noted, H.R. 5041 could be
construed to prohibit cigarette advertisements or packages
from including "tar" and nicotine information. Sec.
TIMN 0032134
- 41 - •
7(a)(1). In addition, ~.R. 5041 would require cigarette
manufacturers to provide the Secretary of Health and Human
Services with a complete list of each manufacturer's brands
and "the results of tests, approved by the Secretary,
establishing the tar, nicotine, carbon monoxide, and other
tobacco smoke constituent (as determined by the Secretary)
levels for each brand." Sac. 7(b)(1)(A)(ii).55/
As in the case of tobacco ingredients,
the pro-
visions concerning tobacco smoke "constituents"
are redun-
dant at best. Pursuant to a voluntary agreement
and program
entered into with the Federal Trade Commission,
the major
cigarette manufacturers already disclose to the
Commission
the "tar" and nicotine ratings for all advertised
brands.56/
The Commission itself publishes carbon monoxide ratings
on a
brand-by-brand basis, supplied by the cigarette
manufacturers
at the Commission's request.57/ The Tobacco
Institute
Testing Laboratory (TITL), monitored closely by an
55/ Sac. 15(4) defines "constituent" to mean --
"any element of tobacco or cigarette mainstream or
sidestream smoke, including tar, nicotine and
carbon monoxide."
56/ See Letter of October 23, 1970, to Federal Trade
C-~mmissiQ~ from Brown & Williamson Tobacco Corporation, et
el.
57/ See, e.g., Federal Trade Commission, Report of Tar,
~cotine and Carbon Monoxide Content of 272 Varieties of
Domestic Cigarettes, 54 Fed. Reg. 1787 (Jan. 17, 1989).
0032135
on-site representative of the Commission, measures the
"tar," nicotine and carbon monoxide levels of cigarettes
old in the United States.
The Commission has told the House Subcommittee on
[]TransPortation, Tourism, and Hazardous Materials that it is
~satisfied that its current arrangement with TITL enables it
to ensure the accuracy of the "tar," nicotine and carbon
monoxide figures supplied by the cigarette manufacturers.---
~With respect to any other "constituents" of tobacco smoke, a
representative of the Oak Ridge National Laboratory (ORNL)
~ told the same Subcommittee in 1988, based on research
conducted by ORNL, that testing
for
other
constituents
would
not affect the relative ranking of cigarettes as determined
by "tar" and nicotine or provide information that would
affect a smoker's choice among the different brands of
59/
cigarettes that are available.--
58/ FTC Nicotine Program: Hearing before the Subcomm. on
Transportation, Tourism, and Hazardous Materials of the
House Comm. on Energy and Commerce, 100th Cong., ist Seas.
5-6 (1987) (statement of the Federal Trade Commission); id.
at 10-~1, 47 (testimony of William C. MacCleod, Director,
Bureau of Consumer Protection, FTC); id. at 13, 47 (testi-
mony of Daniel Oliver, Chairman, FTC).
59/ Cigarettes -- Advertising, Testing, and Liability:
Hearings on H.R. 4543 before the Subcomm. on Transportation,
Tourism, and Hazardous Materials of the House Comm. on
Energ~ and Commerce, 100th Cong., 2d Seas. 204 (1988)
(statement of Michael D. Guerin).
TIMN 0032136
There is no reason to enact legislation requiring
~shifting responsibility for overseeing such disclosure to
the Secretary of Health and Human Services or for incurring
~ ~ the substantial additional costs that such further oversight
would entail.
ANTISMOKING CAMPAIGNS
The Center on Tobacco and Health established under
H.R. 5041 would be directed to prepare and distribute anti-
smoking materials, including "paid advertising campaigns to
discourage the use of tobacco by youth and other population
groups at risk of using tobacco products." Sac. 12(b)(2)(E).
The C~nter also would be directed to "coordinate discussions
between filmmakers, broadcast media managers, and others
regarding the adverse health effects of tobacco and the
impact of the media on tobacco use." Sac. 12(b)(2)(F).
Mr. Chairman, the first of these provisions, like
-he proposed warning requirements discussed earlier, appears
to be based on the mistaken premise that Americans are
unaware of the claimed health risks of smoking. It would
seem profligate, to say the least, in the face of the budget
deficit, for Congress to authorize additional funds to
promote a message that Americans already understand and
believe and that is reinforced continually and pervasively
in the media.
TIMN 0032137
We are concerned, moreover, that this provision
might be construed to authorize "attack" ads of the kind run
earlier this spring by the California Department of Health
Services--advertisements that assailed the cigarette
manufacturers in the style of negative political commercials.
These advertisements did not tell people about smoking and
health. They did not tell people to quit smoking or not to
start. The ads simply vilified the cigarette manufacturers
--"ashcanning the opposition," as one network executive
said.60/
These "attack ads" were a dangerous foray by
government into the arena of partisan political speech.
Such partisan speech by government threatens the integrity
of the political process and, ultimately, the underlying
principles of our system of democratic self-government.
As
one scholar has stated:
"[P]articipation by the government in the
dissemination of political ideas poses a
threat to open public debate that is distinct
from government impairment of individual
expression. Programs of direct government
dissemination and private dissemination
that is government subsidized not only
inform but also persuade. The government
has the potential to use its unmatched
arsenal of media resources and legislative
prerogatives to obtain political ends, to
nullify the effectiveness of criticism,
and, thus, to undermine the principle
6~0/ Johnson, "Anti-Smoke Torch Flickers -- California's Ad
Attack on Tobacco Marketers Draws Fire from Stations,"
Advertising Age, April 16, 1990, p. i.
TIMN 0032138
of self-government. The free exercise of
political rights, therefore, depends as
much on a guarantee against political
establishment as it does on the guarantee
against interference with free speech."61/
The precedent set by the California advertising
campaign is profoundly troubling. Today, the government
attacks the cigarette companies because it does not like
their products. Tomorrow, it will attack other companies
because something about their products bothers the govern-
ment. And why should the government stop with attacks on
corporations? Suppose unions are considered to be too
influential. Should the Federal government undertake a
multimillion-dollar advertising campaign proclaiming their
"undue" influence? Should it authorize "public information
campaigns" urging boycotts of tuna companies that tolerate
drift-netting?
Congress has prohibited the United States Informa-
tion Agency and the Voice of America from disseminating
their propaganda domestically. See 22 U.S.C. ~ 1461, 1461-ia.
It should not depart from that principle and authorize what
Professor William Van Alstyne, one of our nation's most
eminent and respected constitutional law scholars, has
describgd as "domestically-directed internal propaganda
against [a] segment of American enterprise." Professor Van
61/ Kamenshine, "The First Amendment's Implied Political
Establishment Clause," 67 Calif. L. Rev. i104 (1979).
TIMN 0032139
~Alstyne has stated that such an arrangement, proposed in the
legislation introduced by Senator Kennedy, is "contrary to
the First Amendment principle that government propaganda
systems are not to be constructed, financed, and maintained
in the United States." I respectfully request that a copy
of Professor Van Alstyne's letter be included in the record
of this hearing.
I should add, in this connection, that we view
with particular concern the provision of H.R. 5041 direc=ing
the Center to "coordinat[e] with film makers, broadcast
media managers, and others regarding the impact of media on
tobacco use behavior." Sac. 903(a) (3). It is not appro-
priate for government to tell artists, writers and others in
the media how to portray smoking or smokers in their work,
or to suggest that some portrayals are more politically
"correct" than others. It is one thing for government
officials to speak out on an issue but quite another for the
government to "prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion.''6-2/
Action by the Center pursuant to Sac. 12(b)(2)(F) would
chill expression protected by the First Amendment --
effectively imposing a system of prior restraint on speech
deemed to be insufficiently "unfriendly" to smoking.
62/ West Virginia State Board of Education v. Barnette, 319
U.S. 624, 642 (1943).
TIMN 0032140
Mr. Chairman, it is evident that the ultimate
~urpose of H.R. 5041 is not to regulate cigarette adver-
~
tising or ingredients or to ensure that the decision to
~ ~smoke or not to smoke will be an informed one. The self-
evident purpose of H.R. 5041 is to eliminate smoking by
~making it ever more difficult for the manufacturers to
market, and smokers to purchase, their products. Yet
smoking is a custom enjoyed by one of every four Americans
notwithstanding universal awareness of the claimed health
risks.
People smoked long before there was cigarette
advertising. They smoke in countries where cigarette adver-
tising has been completely banned. And they will continue
to smoke -- unless and until smoking itself is banned, with
the invasion of personal freedoms and wrenching dislocations
to our economy that such a ban necessarily would entail.
Such a ban, Mr. Chairman, is precisely what H.R. 5041 hopes
to achieve not directly but indirectly with its witch's brew
of antitobacco proposals -- proposals that Congress should
firmly reject.
I would be glad to answer any questions.
TEVIN 0032141
