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
- 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
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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
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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
