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
Fields
- 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.
- Bell, G.
- Request
- Stmn/R1-029
- Stmn/R1-036
- Recipient (Organization)
- Comm on Energy + Commerce
- Subcomm on Health + the Environment
- US House
- Subcomm on Health + the Environment
- 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
- American Civil Liberties Union
- Master ID
- 2023914806/5052
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- Date Loaded
- 05 Jun 1998
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Document Images
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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
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
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.
\
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."
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.
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."
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).
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).
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.
- 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.
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