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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
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Abrams, F.
Bell, G.
Blau, T.H.
Ely, C.
Fisher
Flamm, W.G.
Goldhaber, G.M.
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Kennedy, A.M.
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Mizerski, R.
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Raffle, S.M.
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Subcomm on Health + the Environment
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2023914805/2023915131a/Briefing Book H.R. 5041 Waxman Hearing 900712
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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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. 2. Promotion. Mr. Chairman, the proposed:ban on so-called "promotion" (Sec. 6(b)) also is unjustified. In recent years, consumer product manufacturers have relied increasingly on promotional activities such as event spon- sorship and sampling. Cutting across industry boundaries, sales promotion has been growing 22 times faster than general advertising.14/ 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 of 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. (footnote cont'd) 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 N that smoking is as prevalent currently among 15-19 year-olds W as it has been at any time since the mid-1980s. ~ ~ 14/ Advertising Age, p. S-1 (May 1, 1989). 0
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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 manufac- turers contribute to such events is substantial. Its loss would have severe financial and other consequences for those who depend on that support. There is no basis for the sup- position that seeing a cigarette brand name on a racing 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 for children. The use of tobacco product trademarks in connection 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 sell 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
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unreasonable interference with the legitimate rights of trademark owners and a dangerous precedent.ZS/ 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 pur- pose. 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 ciga- rette 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 15/ 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 countenance association of their products with nontobacco products that are used primarily by youth. No cigarette manufacturer has ever authorized any manufacturer of youth-oriented items (including video games) to incorporate into their products any tobacco product logo, trade name or trademark. The ciga- rette manufacturers regard any such use as a violation of their trademark rights and, as with any trademark infringe- ment, take legal action to protect those rights.
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\ another -- hardly a matter justifying the attention or interVention of the federal government. WARNINGS Secs. 3(a) and 4(a) would replace the four existing warnings on cigarette packages and in cigarette advertising with nine new warnings (slightly modified for billboard adver- tising).16/ The new warnings, which would not be attributed to the Surgeon General or identified in any other way as government warnings, would be as follows: "WARNING: Cigarettes Kill 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 16/ The four warnings currently required under the Federal Gigarette Labeling and Advertising Act (15 U.S.C. S 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."
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WARNING: Cigarettes May Cause Fetal Injury or Miscarriage . WARNING: Cigarette Smoke is Harmful to Nonsmokers WARNING: Cigarettes Cause Stroke" The bill would require the word "WARNING" to be printed in red letters. On packages, the warnings would have to appear at the top of the front and back panels of the pack, account for at least 25 percent of the panel and appear in white-on-black or black-on-white within a contrasting border. Sec. 3(b).17I 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. Sec. 4(b). 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." Sec. 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." Sec. 4(c). Rotation would be pursuant to plans submitted by the manufacturers and approved by the 17 In its extreme health warning regime, 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.
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Secretary of Health and Human Services, not the Federal Trade.Commission. The definition of "advertisement" under the bill is so broad that, 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).18/ 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 18/ Sec. 15(1) 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."
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informed one.19/ 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 believes smoking is harmful but only 1 of 3 Americans knows who delivered the Sermon on the Mount. 19/ See Federal Cigarette Labeling and Advertising Act, Sec. 2(1), 15 U.S.C. S 1331(1); S. Rep. No. 195, 89th Cong., 1st Sess. 4 (1965); H.R. Rep. No. 289, 91st Cong., 1st Sess. 19 (1969) (additional views of Reps. Ottinger and Van Deerlin); H.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 11, 1983).
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Young people, especially, are aware of the risks attributed to smoking. As the Surgeon General has stated, "[bjy the time they reach seventh grade, the vast majority of children believe smoking is dangerous to one's health."?0/ 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."21/ 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."22/ 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, how- ever, the scare warnings proposed by H.R. 5041 actually may 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 20/ Smoking and Health: A Report of the Surgeon General, p. 17-10 (1979). 21/ Chilton Research Services, Teenage Smoking: Immediate and Long Term Patterns, pp. 18-19 (National Institute of Education, Dep't of Health and Human Services, 1979). 22/ Leventhal, et al., "Is the Smoking Decision an 'Informed Choice'?", JAMA, vol. 257, pp. 3373-76 (1987).
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every cigarette advertisement they see.23/ 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 you see it, and you know what it signifies -- without necessarily knowing what it actually says."24/ 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. Mr. Chairman, the proposed warnings not only are unnecessary -- they would violate the First Amendment. As 23/ Fisher, et al., "Recall and Eye Tracking Study of A3olescents Viewing Tobacco Advertisements," JAMA, vol. 261, p. 84 (1989); Davis, et al., "The Surgeon General's Warnings in Outdoor Cigarette Advertising -- Are They Readable," JAMA, vol. 261, p. 90 (1989). 24/ Young & Moschis, "Review of Eye Tracking and Recall of AUolescents 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.
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- 20 - Floyd Abrams discusses in his statement, the Supreme Court has stated that "unnecessary or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected expression."25/ 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 adver- tising only as necessary to prevent their being deceptive.26/ Further refinements in cigarette health warnings are unne- cessary to serve that purpose, given the 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 * * * unless the public 25/ Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 652 (1985). See also Peel v. Attorney Registration and Disciplinary CommIn, 58 U.S.L.W. 4684, 4692 n.2 (1990) (Marshall, J., joined by Brennan, J., concurring in the judgment). 26/ See, e.g., Virginia State Board of Pharmacy v. Virginia C tizens 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 impermissib.le under the First Amendment." Encyclopedia Britannica, Inc. v. FTC, 605 F.2d 964, cert. denied, 445 U.S. 934 (1980). See Corp. v. FTC, 542 F.2d 611, 618-20 (3d denied, 430 U.S. 983 (1977). 972 (7th Cir. 1979), also Beneficial Cir. 1976), cert. ~ 0 N W GO r ~ ~
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holds a belief contrary to material facts not disclosed."17/ In fact, the particular requirements proposed by H.R. 5041 are not intended to prevent deception at all but to use fear appeals 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 antismoking messages. A speaker -- even a corporate speaker -- cannot be forced "to associate with speech with which [the speaker] disagrees."28/ "For corporations, as for individuals, the choice to speak includes the choice of what not to say."29/ 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. The cigarette manufacturers vigorously dispute the warning statements proposed by H.R. 5041 and should not be required to present messages with which they disagree as though such messages were their own. We have presented our substantive objections to the existing health warnings in 27/ FTC v. Simeon Management Corp., 532 F.2d 708, 716 (9th Cir. 1976). 28/ Pacific Gas & Electric Co. v. PUC, 475 U.S. 1, 15 (1986). 29/ 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).
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- 22 - testimony before this Subcommittee on the legislation enacted as the Comprehensive Smoking Education Act.301 We likewise object to the two health warnings proposed in H.R. 5041 that are substantively new and qualitatively different from the existing 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 other hearings and as Dr. W. Gary Flamm discusses in his written statement, it has not been demonstrated that in exposure to ETS presents a risk of disease for nonsmokers. The most recently published critical analysis of the scientific literature, for example, concludes that verifying "the possible association" between ETS and lung cancer remains "an important challenge."31/ In the expert judgment of many respected scientists here and abroad, the epidemiological 30/ Although no "stroke" warning was proposed, The Tobacco Institute also stated its position with respect to cerebro- vascular disease. Smoking Prevention Act: Hearings on H.R. 1824 before the Subcomm. on Health and the Environment of the House Energy and Commerce Comm., 98th Cong., lst Sess. 670-72 (1983). 31/ Wynder & Kabat, "Environmental Tobacco Smoke and Lung Cancer: A Critical Assessment," Indoor Air Quality, p. 13 (H. Kasuga ed. 1990). This study was performed by researchers at the American Health Foundation and was funded by the Department of Health and Human Services.
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- 23 - studies fall far short of demonstrating that ETS causes disease in 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 McGill University in Montreal, Canada.32/ One speaker after another at this symposium took issue with the claim that ETS has been shown to cause disease in nonsmokers. Efforts also were made to understand the contrary picture disseminated 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 32/ Wu, "Summary and Concluding Remarks," Environmental Tobacco Smoke: Proceedings of the International Symposium at McGill University 1989, p. 275 (D. Ecobichon & J. Wu eds. 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 Technologie de Dijon, University of Burgogne, Dijon, France; Institute of Environmental and Industrial Medicine, Hanyang University, Seoul, Korea; Institute for International Health and Development, Geneva, N Switzerland; National Energy Management Institute, Alexandria, 0 Virginia; The National Federation of Independent Business, N Washington, D.C.; The-National Federation of Independent CJ Business Foundation, Washington, D.C.; RCC Research and LO Consulting Company AG, Itingen, Switzerland; and the School }A of Pharmacology, Sunderland Polytechnic, Tyne and Wear, U.K. ,P ~ ~ t:~ *, cq8; .
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- 24 - York Medical College stated, "it appears premature to take any sart of regulatory action with regard to ETS at this point. Clearly, more and better research needs to be done.l+33/ For this basic reason, the ETS warning proposed by H.R. 5041 is unjustified. (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,34/ and most of the 41 million smokers who quit did so without formal treatment programs or smoking N O 33/ Ibid. ~ W 34/ Reducing the Health Consequences of Smoking: A Report ~ of the Surgeon General 292 (1989). r ~ ~ ~
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- 25 - cessation devices.35/ Ironically, the presence of an "addiction" warning could serve to discourage some smokers from quitting -- and certainly would undercut the aim of one of the other warnings required under H.R. 5041, "Quitting Cigarettes Will Improve Health." For these reasons, and the reasons discussed by Dr. Theodore H. Blau in his written statement, an "addic- tion" warning is unwarranted and could be harmful. I direct your attention, additionally, to my testimony and the sup- porting testimony of Dr. Stephen M. Raffle and Dr. Blau at the 1988 hearing before this Subcommittee.36/ Nearly a decade ago, Mr. Chairman, the Federal Trade Commission staff recommended health warnings in ciga- rette advertising that would be "large enough to be noticed, but small enough to permit the advertiser to communicate its desired message."37/ The staff's'recommendations assumed a warning that would "occupy only a small percentage of the (advertising] in print media, sidewalk, transit and point of 35/ 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). 36/ Health Consequences of Smoking -- Nicotine Addiction: Hearing before the Subcomm. on Health and the Environment of the House Comm. on Energy and Commerce, 100th Cong., 2d Sess. 299-339 (1988). 37/ Report on the Cigarette Advertising Investigation, p. 5-21.
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- 26 - purchase ads" and would "not occupy space needed to communi- cate the manufacturers' message."38/ The staff stressed that the warnings should not take up "an undue amount of space."39/ 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.40/ It is ironic, to say the least, that the warning format proposed by H.R. 5041 is so inconsistent with~ the recommendations of the FTC staff 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. SS 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 per- mitted under the bill and would empower judges and juries 38/ Id. at pp. 5-21 to 5-22. 0 . N 39/ Id. at p. 5-21. ~ 40/ Tobacco Issues, Institute of Politics, Harvard Univer- 1~ sity, April 17, 1983, Tr. 9. ~P UD to
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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 of the bill. Sec. 13 would Balkanize regulation of the adver- tising and labeling of a nationally marketed product -- an outcome at odds with First Amendment 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.41/ In ostensible deference to federal policies favoring national uniformity in tobacco product warning requirements, Sec. 13(b) would preclude state and local authorities from requiring their own warnings on product 41/ Tobacco Issues (Part 1): Hearing on H.R. 1250 before the Subcomm. on Transportation and Hazardous Materials of the House Comm. on Energy and Commerce, 101st Cong., 1st 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 Energy and Commerce, 100th Cong., 2d Sess. 394 (1988). .
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-28- 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."42/ 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."43/ I commend to your special attention, in this regard, the eloquent testimony of our late former colleague, David Satterfield, before Rep. Luken's subcommittee in 1988.44/ 42/ Id. at 291. 43/ Ibid. 44/ Id. at 374. Five federal Courts of Appeals and approx- imately 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 N N ~ and regulatory bodies, from questioning the adequacy of the M+ ~ (footnote cont'd) ~ ~ r ^fi
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- 29 - STATE TOBACCO SALES 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 Human Services. Mr. Chairman, the federal government should not use the power of the United States Treasury to dictate to the states in the way contemplated by H.R. 5041. 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. (footnote cont'd) warnings drafted and prescribed by the Congress. The sugges- tion that some have made that these courts were misinformed or have misinterpreted Congress' intent is, we submit, wide of the mark. See Pennington v. Vistron, 876 F.2d 414 (5th Cir. 1989); Roysdoa v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988); Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st Cir. 1987); Stephen v. American Brands, Inc., 825 F.2d 312 (11th Cir. 1987); Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir. 1986), cert. denied, 479 U.S. 104•3 (1987). •
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- 30 - When state and local authorities commit themselves to vigorous enforc'ement 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 1989.45/ Neither should states be required to establish licensing systems to address tobacco sales to minors. No one seriously contends that licensing is the way to reduce drinking among youth. There is no real basis to believe that licensing would succeed in reducing youth smoking. The burden on retailers, however, could be severe. As represen- tatives of four New England retail associations, criticizing the Secretary's model law, recently told the Interagency Committee on Smoking and Health: "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."46/ 45/ Office of the Inspector General, Youth Access to Cagarettes, p. 3 (May 1990). 46/ Statement of Connecticut Food Association, Maine Grocers Association, New Hampshire Retail Grocers Associa- tion, Vermont Grocers Association before the Interagency Committee on Smoking and Health, p. 3 (May 31, 1990).
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Confirming these fears, the Minneapolis City Council cur- rentlyis 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 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." Sec. 7(b)(1)(B).471 The Center on Tobacco and Health established 47/ Sec. 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."
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- 32 - 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 addi- tives to, tobacco products." Sec. 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 itself or in conjunction with any other such ingredient, is unsafe or presents increased risks to health to the consumer or general public." Sec. 7(c). Mr. Chairman, these provisions would either duplicate existing law or change existing law without any 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 Health and Human Services on an annual basis "a list of the ingredients added to tobacco in the manufacture of cigarettes." 15 U.S.C. S 1335a(a). The list provided to the Secretary need~not identify the company involved or the brand of cigarettes that contains ients. Ibid. Congress considered the disclosure the ingred- of ingredient information on this basis to be adequate
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- 33 - the federal government to initiate the toxicologic research necesshry 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 Sess. 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. S 1335a(b)(1)(B). Each year since 1986, the six major cigarette manufacturers have jointly submitted ingred- ient lists to the Secretary as required by the 1984 legisla- tion. The most recent list was submitted just this past December. 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 that the Administration considers legislation authorizing the investigation or regulation of tobacco product ingredients to be "unnecessary."4-8/ Indeed, the Secretary . O N 48/ Statement of Louis W. Sullivan, M.D., Secretary of G~ Health and Human Services, before the Senate Comm. on Health ~ and Human Resources, Feb. 20, 1990, p. 8. PPb ~
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- 34 - himself suggested that tobacco product ingredients are a "peripheral" concern.49/ I refer you to the testimony of Clausen Ely in this regard. Neither is there any justification for requiring public disclosure of tobacco product 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 "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. S 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 50 Fed. Reg. 49,617 (1985). In 1984, Congress considered and rejected public disclosure of ingredient information -- and for good reason. As originally introduced in the 97th Congress, the House ver- sion of the legislation ultimately enacted in 1984 would have 49/ Tobacco Education and Control Act: Hearings on S. 1883 before the Senate Comm. on Labor and Human Resources, 101st Cong., 2d Sess., Tr. 58 (Feb. 20, 1990) (testimony of Dr. Louis W. Sullivan, Secretary of Health and Human Services).
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- 35 - required ingredients to be listed on cigarette packages.50/ 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."51/ The Institute's witness also pointed out that requiring package disclosure of ingredients, "combined with the health warnings and tar, nicotine and carbon monoxide numbers, would turn cigarette packages into little textbooks, likely causing smokers to ignore it all." ibid. Congress responded to these objections in the 1984 legislation by providing trade secret protection to the ingredient information supplied to the Secretary. In addi- tion, 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 considerations that supported Congress's decision to treat ingredient information in this way in 1984 50/ H.R. 5653, 97th Cong., 2d Sess., p. 7 (March 1, 1982). N - O 51/ See Comprehensive Smoking Prevention Education Act: N Hearings on H.R. 5653 and H.R. 4957 before the Strbcomm. on W Health and the Environment of the House Comm. on Energy and ~ Commerce, 97th Cong., 2d Sess. 355 (1982). ~ ~ ~ ~
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- 36 - remain valid today. Similar considerations are reflected in broad 3.ngredient 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 product ingredients would be exempt from disclosure under these laws and the implementing regulations of the Food and Drug Administration. (1) Food. Congress explicitly has exempted flavorings, colorings and spices used in food from disclo- sure under Sec. 403 of the FD&C Act, 21 U.S.C. S 343.521 It requires the FDA, moreover, to establish further exemptions from disclosure for food ingredients "to the extent that (disclosureJ is impractical, or results in deception or unfair competition." Ibid. See, e.g., 21 C.F.R. S 101.100(a)(3) (1988) (exempting "incidental additives," including "proces- sing aids," from disclosure). (2) Cosmetics. The FDA, exercising its authority under Sec. 5(c)(3) of the FP&L Act, 15 U.S.C. S 1454(c)(3), likewise has exempted from disclosure the ingredients of 52 Sec. 403(g) (2) requires the label of any food for which a "standard of identity" has been prescribed by regulation to list, insofar as may be required by regulation, "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 d N 0 i entity has not been prescribed, to list "the common or usual name of each such ingredient; except that spices, flavorings, and colorings, other than those sold as such, N W ~ may be designated as spices, flavorings, and colorings, ~ without naming each." ~ ~ ~ ~ ;.;:~,... .
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- 37 - flavors and fragrances used in cosmetics. 21 C.F.R. § 701.3(a) (1989j. 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. S 701.3(l)(2) (1989) (exempting "incidental ingredients," including "processing aids," from disclosure). The FDA concluded that it would not be impractical to disclose by name colors used in cosmetics but the agency carefully 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. S 720.8 (1988) (specifying procedure for exempting ingredients from public disclosure on trade secret grounds). (3) Drugs. Sec. 502(e)(1) 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. S 352(e)(1). 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.
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- 38 - 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 discussed, H.R. 5041 could be construed to prohibit cigarette advertisements or packages from including "tar" and nicotine information. Sec. 7(a)(1). In addition, H.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." Sec. 7(b)(1)(A)(ii),53/ As in the case of tobacco product ingredients, the provisions concerning tobacco smoke "constituents" are redundant at best. Pursuant to a voluntary agreement and program entered into with the Federal Trade Commission, the major cigarette manufacturers already disclose to the Com- mission the "tar" and nicotine ratings for all advertised 53/ Sec. 15(4) defines "constituent" to mean -- "any element of tobacco or cigarette mainstream or sidestream smoke, including tar, nicotine and carbon monoxide."
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- 39 - brands.54/ The Commission itself publishes carbon monoxide ratincjs on a brand-by-brand basis, supplied by the cigarette manufacturers at the Commission's request.5/ The Tobacco Institute Testing Laboratory (TITL), monitored closely by an on-site representative of the Commission, measures the "tar," nicotine and carbon monoxide levels of cigarettes sold 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,56/ 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 con- ducted 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 54/ See Letter of October 23, 1970, to Federal Trade Com- mission from Brown & Williamson Tobacco Corporation, et al. 55/ See, e.g., Federal Trade Commission, Report of Tar, icotine and Carbon Monoxide Content of 272 Varieties of Domestic Cigarettes, 54 Fed. Reg. 1787 (Jan. 17, 1989). 56/ FTC Nicotine Program: Hearing before the Subcomm. on Transportation, Tourism, and Hazardous Materials of the House Comm. on Energy and Commerce, 100th Cong., lst Sess. 5-6 (1987) (statement of the Federal Trade Commission); id. at 10-11, 47 (testimony of William C. MacCleod, Director, Bureau of Consumer Protection, FTC); id. at 13, 47 (testimony of Daniel Oliver, Chairman, FTC).
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- 40 - affect a smoker's choice among the different brands of cigarettes that are available.5?/ There is no reason to enact legislation requiring further disclosure of tobacco smoke "constituents," for 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." Sec. 12(b)(2)(E). The Center 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." Sec. 12(b)(2)(F). Mr. Chairman, the first of these provisions, like the 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 ~ 0 ~ 57/ Cigarettes -- Advertising, Testing, and Liability: GJ Hearings on H:R_ 4543 before the Subcomm. on Transportation, ~ Tourism, and Hazardous Materials of the House Comm. on ~ Energy and Commerce, 100th Cong., 2d Sess. 204 (1988) ~ (statement of Michael D. Guerin). ~ ~
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I 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. 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 manu- facturers 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.58/ 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 58/ Johnson, "Anti-Smoke Torch Flickers -- California's Ad Attack on Tobacco Marketers Draws Fire from Stations," Advertising Age, April 16, 1990, p. 1.
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- 42 - 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 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."59/ 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. SS 1461, 1461-1a. It should not depart from that principle and authorize what Professor William Van Alstyne, one of our 59/ Kamenshine, "The First Amendment's Implied Political Establishment Clause," 67 Calif. L. Rev. 1104 (1979).
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- 43 - nation's most eminent and respected constitutional law scholars, has described as "domestically-directed internal propaganda against [a] segment of American enterprise." Professor Van Alstyne has stated that such an arrangement, proposed in the legislation introduced by Senator Kennedy, is "contrary to the First Amendment principle that govern- ment propaganda systems are not to be constructed, financed, and maintained in the United States." I should add, in this connection, that we view with particular concern the provision of H.R. 5041 directing the Center to "coordinat[e] with film makers, broadcast media managers, and others regarding the impact of media on tobacco use behavior." Sec. 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."60/ Action by the Center pursuant to Sec. 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. 60/ West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
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- 44 - * * * Mr. Chairman, it is evident that the ultimate purpose 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.

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