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 900712

Philip Morris

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 900712

Date: 12 Jul 1990 (est.)
Length: 44 pages
2023914864-2023914907
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Author

Whitley, C.O.

Area

HAN,VICTOR/OFFICE

Type

TRAN, TRANSCRIPT

FOOT, FOOTNOTES

Site

N332

Named Person

Abrams, F.

Bell, G.

Blau, T.H.

Ely, C.

Fisher

Flamm, W.G.

Goldhaber, G.M.

Kennedy

Kennedy, A.M.

Koop

Luken

Mizerski, R.

Moschis, G.P.

Ottinger

Packwood

Pertschuk, M.

Raffle, S.M.

Satterfield, D.

Surgeon General

Synar

Vanalstyne, W.

Vandeerlin

Washington, G.

Wu, J.M.

Young, E.C.

Request

Stmn/R1-029

Stmn/R1-036

Recipient (Organization)

Comm on Energy + Commerce

Subcomm on Health + the Environment

US House

Document File

2023914805/2023915131a/Briefing Book H.R. 5041 Waxman Hearing 900712

Litigation

Stmn/Produced

Author (Organization)

TI, Tobacco Inst

Named Organization

American Assn of Advertising Agencies

American Civil Liberties Union

Assn of Natl Advertisers

Ca Dept of Health Services

Center on Tobacco + Health

Congress

Council of Economic Advisors

FDA, Food and Drug Administration

Fed Reg

Federal Communications Commission

Freedom to Advertise Coalition

Ftc, Federal Trade Commission

Ga State Univ

Hanyang Univ Seoul

Hbi, Healthy Buildings Intl

Hhs, Dept of Health and Human Services

Inst Environmental + Industrial Medicine

Inst for Intl Health + Development

Institut Fresenius

Institut Universitaire Technologie Dijon

Interagency Comm on Smoking + Health

Jama

Mcgill Univ Montreal

Minneapolis City Council

Natl Energy Management Inst

Natl Federation Independent Business Fou

Natl Federation of Independent Business

Natl Inst of Education

Ny Medical College

Oak Ridge Natl Lab

Perception Research Services

Public Health Service

Rcc Research + Consulting

Subcomm on Health + the Environment

Subcomm Trans Tourism + Hazardous Materi

Subcomm Transportation + Hazardous Mater

Sunderland Polytechnic Tyne + Wear

Supreme Court

TI, Tobacco Inst

Titl, Tobacco Inst Testing Laboratory

Treas, Dept of the Treasury

Univ of Burgogne Dijon

US House

US Information Agency

US Trademark Assn

Voice of America

Who, World Health Org

Wlf, Washington Legal Foundation

Ahf, American Health Foundation

Master ID

2023914806/5052
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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 July 12, 1990 t 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 ciga- rette advertisements and ban promotional 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; permit individual judges and juries in each state to require additional warnings

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2 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 provide for unnecessary regulation and public disclosure of tobacco product 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 Reps. Luken and Synar (H.R. 1250/1493). It would establish the most extreme system of cigarette health warnings in the world. And, like legisla- tion 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, H.R. 5041 would do nothing to reduce smoking among youth or adults. It would, however, effectively ban protected commer- cial speech in violation of the First Amendment. 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 years ago before Rep. Luken's subcommittee, would invite

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3 censorphip 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 into 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 product 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 legiti- mate purpose would be served by the disclosure. Finally, like the Kennedy bill, H.R. 5041 would authorize "counter- advertising" 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

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4 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). Sec. 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. Sec. 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 warnings prescribed in Sec. 4. In addition, the bill would authorize the Secretary of Health and Human Services to 1/ Sec. 6(c) would grandfather pictures and human or cartoon figures that.had appeared on a package for a period of five consecutive years before January 1, 1989. However, Sec. 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. 2/ Sec. 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 Q Services determined that the representation is "significant N in terms of affecting health and safety and is based upon CrJ significant scientific agreement." Sec. 7(a)(2). The term GD "representation" is defined in Sec. 15(7) to mean "any MA statement, reference, or claim which is (A) expressed or ~P implied, (B) direct or indirect, or (C) oral, written, or ~ printed in graphic form or in any combination of such forms." ~

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- 5 - require additional warnings or other information to be presented. Sec. 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 copy 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 itselfY 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. Sec. 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. Sec. 6(b). Finally, H.R. 5041 would ban 3/ Because the bill also would require the statutory warning to occupy 25 percent of the front and back panels of every package of cigarettes (Sec. 3)', any cigarette adver- tisement that included a picture of the product package would be required to present the statutory warning twice.

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6 cigarette advertising "on any audio tape, audio disc, video- tape, video arcade game, or film." Sec. 6(d).Y 1. Advertising. Mr. Chairman, H.R. 5041's proposed restrictions on the content of cigarette advertising 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 indistinguishable as a practical matter from the original advertising ban legislation intro- duced by Rep.'Synar more than five years ago.s/ Our industry has addressed proposals to ban or restrict cigarette advertising in more than a dozen hearings since Rep. Synar introduced his ad-ban legislation in March 1986. Our position on this latest proposal is no different: It rests on the mistaken premise that cigarette advertising influences people to begin smoking and that banning or 4/ The bill would reenact the ban on cigarette advertising in any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission. Sec. 5. 5/ See H.R. 4972, 99th Cong., 2d Sess. (1986); H.R. 1272, 100th Cong., lst Sess. (1987); H.R. 1532, 100th Cong., lst Sess. (1987).

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7 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.6/ As numerous experts have explained in testimony before this Subcommittee and the Subcommittee on Transporta- tion 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 6/ N.Y. Times, Jan. 12, 1989, at D5.

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8 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 pro- hibitions would disable cigarette manufacturers from designing advertisements with any reasonable prospect of attracting attention to their brands.8/ 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." 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 Commission, has stated: "No one really pretends that advertising is a major 7/ Economic Report of the President 186 (1987). 8/ 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.

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9 determinant of smoking in this country or any other."9/ As Dr. Mizerski will explain in greater detail, the only significant 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 experience of countries that have banned or 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.10~ In Finland, where tobacco adver- tising has been banned completely since 1978, smoking among juveniles,.which had been declining sharply before the ban was imposed, increased after imposition of the ban -- especially among teenage girls.ll/ In Sweden, where tobacco advertising has been severely restricted since 1979, smoking 9/ Tobacco Issues, Institute of Politics, Harvard Univer- sity, April 27, 1983, Tr. 8-9. 10/ AarO, Wold, Kannas & Rimpela, "Health Behaviour in Schoolchildren: A WHO Cross-National Survey" (May 1986), I(1) Health Promotion, p. 32. 11/ Rimpela, Rimpela, Hara-Etelaharju, Pylari,,Siivola & N 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). ~

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is on.the rise among teenagers and their use of smokeless tobacco has nearly quadrupled since 1976.12/ In short, it cannot be maintained that banning 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 today by Floyd Abrams on these constitutional issues.l3/ 12/ National Board of Health and Welfare, Tobacco Control in 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, Hauknes & Berglund, "Smoking Among Norwegian School Children 1975-1980," Scandinavian J. of Psychology (1981) 22:(3), p. 165. 13/ It has been suggested that the imposition of a cigarette aavertising 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 B1. 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 spon- sorship, continue to be permitted. The ban has been imple- mented 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 (footnote cont'd)

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