Tobacco Documents Online

I Tlfe Tobacco Institute 1875 1 Street, Northwest Washington, DC 20006 (800) 424-9876 FOR RELEASE: CONTACT: July 12, 1990 Brennan Dawson 9:00 a.m. 202/457-4800 ANTITOBACCO BILL WOULD NOT REDUCE SMOKING AMONG YOUTH OR ADULTS Experts say bi'11 wonld .iolate FIrst Amendimeat WASHINGTON, D.C. - In the latest of more than a dozen hearings since the first tobacco ad-ban bill was introduced in 1986, the Subcommittee on Health and the Environment was today told again that proposed cigarette advertising restrictions would violate the First Amendment. Calli.ng H.R. 5041 "one of the most extreme antitobacco bills in memory," Charles O. Whitley on behalf of The Tobacco Institute said that Congress should firmly reject this proposal that would not reduce smoking among youth or adults. "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 indistinguishable as a practical matter from the original advertising ban legislation," Whitley testified. NENZ'S RL:LEASE "Between the material that the manufacturers would be prohibited from including in their ads and the material that they would be r auired 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," Whitley said. "Cigarette advertisements, reduced to the level required by H.R. 5041, would seldom be noticed by the smokers who constitute their intended audience. The only feature of a cigarette advertisement that could be expected to attract attention would be a statutory warning that says, in effect, 'Don't buy this product,'" he added. Noted First Amendment expert Floyd Abrams called the bill "the single harshest treatment of advertising about a lawful product ever sought to be adopted in either house of Congress." Abrams stated that, "the language of the bill suggests that its aim is nothing less than to drown out the commercial speech of a particular product by forcing those who advertise it to send not their own message but that of those who wish to destroy it." Abrams said that the bill "assumes the non-existence" of the First Amendment. State and local governments would be invited to attempt to ban or restrict such cigarette advertising as would continue to be allowed under the bill, a provision Mr. Whitley said would, "Balakanize regulation of the advertising and labeling of a nationally marketed product - an outcome at odds with First Amendment values." P:

10 The bill would also authorize a newly created Center on Tobacco and Health to prepare and distribute anti-smoking materials, including paid advertising campaigns, and to coordinate With filmmakers, broadcast media managers and others on the media's impact on tobacco use. Professor William Van Alstyne, one of our nation's most eminent and respected constitutional law scholars, has stated that such an arrangement is, "contrary to the First Amendment principle that government propaganda systems are not to be constructed, financed, and maintained in the United States." Richard Mizerski, a Professor of Marketing in the College of Business at Florida State, also testified against H.R. 5041. "Only the influence of 'significant others' can explain why smoking prevalence among 15 year-olds remains so high (36%) in a country like Norway, where cigarette advertising was banned completely in 1975, compared to smoking prevalence among juveniles in this country (19% of high school seniors in 1987)," he said. Mizerski noted that World Health Organization researchers found "no systematic differences" between the smoking behavior of young people in countries where tobacco advertising is completely banned and in countries where it is not. "Having reviewed the available evidence, I am convinced that banning or restricting cigarette advertising is unlikely to reduce smoking among young people or adults," he said. The bill would also require cigarette packages and advertisements to carry a series of "scare" warnings, which would not be attributed to the Surgeon General or identified in any other way as government warnings. The proposed 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 insure that a person's decision 'to smoke or not to smoke' is an informed one. The warnings are intended to scare people away from smoking - to intimidate rather than inform," Whitley said. Gerald M. Goldhaber, Associate Professor of Communication at the State University of New York at Buffalo also criticized the proposed warnings. "Congress would be mistaken to assume that changing the size, color, wording or placement of a cigarette warning label or spending more money on anti-smoking education campaigns would lead to even greater public awareness of the asserted dangers than now exists. The evidence is clear - the American public believes that cigarettes are harmful," he said. Goldhaber testified that "Congress is wrong to assume that it can manipulate the product choices of American consumers by dictating products messages. This is especially true with cigarettes - the American public has repeatedly demonstrated a remarkable awareness of the risks associated with smoking." The proposed warning labels would include one concerning the asserted health risks to nonsmokers of exposure to environmental tobacco smoke (ETS) and a warning that tobacco is "addicting." Dr. W. Gary Flamm, an expert in toxicological evaluation and risk assessment, noted that the "consensus view" of more than 80 scientists from around the world at an international symposium on ETS was that the epidemiologic studies fall far short of demonstrating that ETS causes disease in nonsmokers. Flamm also indicated that the most recently published critical analysis of the scientific literature, funded by the U.S. Department of Health and Human Services (HHS), concludes that verifying "the possible association" between ETS and lung cancer remains "an important challenge."

M The proposed "addiction" warning label is likewise unjustified. Dr. Theodore H. Blau, a practicing clinical psychologist from Tampa, Florida, said that "In my view, labeling tobacco use 'addictive' is misleading and potentially harmful to the American public." Blau noted that - unlike heroin addicts, cocaine addicts and alcoholics who are in the process of giving up these drugs - the alleged'withdrawal symptoms' which some smokers report when giving up smoking are "generally the same kinds of frustrations that one would expect to see when someone discontinues any well established and well liked habit. Such symptoms as missing the habit and mild irritability are similar to the reactions experienced by those who give up coffee or sweets " "The federal government should not be using the power of the United States Treasury to dictate to the states," Whitley said of H.R. 5041's provision that would withhold federal funds from states that do not establish a special bureaucracy to police tobacco sales, ban tobacco products 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. "States should be free to address the issue of tobacco sales to minors in ways they deem to be appropriate - generally by enforcing state laws already on the books that prohibit such sales," he said. Mr Whitley noted that "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 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 1989." Whitley reminded the Subcommittee that the Secretary of HHS, Dr. Louis Sullivan, recently testified that the Administration considers legislation authorizing the investigation of or regulation of tobacco product ingredients "unnecessary," adding that cigarette manufacturers already provide a list of these ingredients to the Secretary of HHS. H.R. 5041 would require tobacco product packages to state the ingredients on the packages in descending order of prominence and HHS would be directed to educate the public concerning these ingredients. This provision "would require public disclosure of commercially sensitive information that currently (and quite appropriately) is protected from public disclosure as trade secret or confidential information. Such disclosure would produce no public benefit," Whitley said. ### O N W ~ P ~ F+ S11