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U 13172 and order In the FEDERAL RECISTER. IIl the circumstances, and particularly the fact that we have fully considered the comments submitted by CBS on recon- sic:cration, we conclude that WCBS-TV has not been prejudiced by the pro- cedures followed in this matter. 57. It is true that other interested per- sons were not accorded an opportunity to be heard prior to the ruling. It is not the Commission's normal procedure or usual practice to aecol•d the public In general an opportunity to be heard with respect to fairness complaints against a particular licensee, even though the complaint may ilrvolve an Important issue of policy (see, e.g., Culhnan Broad- casting Company, FCC 63-849; Times Mirror Broadcasting Co., 24 R.R. 404 and 407 (1962) ). We thus followed long estab- lished procedures In this respect. In any event, we have now heard at length.from the three television networks, numerous individual broadcast licensees, the NAB, and representatives of the advertising and tobacco Industries. We have given extensive consideration to the arguments raised In support of their positions, and have found them without merit. More- over, the ruling is not effective as to any broadcast licensee utitil publication of this opinion in the FEDERAL REGISTER. In the circumstances, we conclude that petitioners have been adequately heal•d and have suffered no prejudice. 58. Further, we are unable to conclude that any useful purpose would be served by affording petitioners a further oppor- tunity for written comment or oral argu- ment. The viewpoints of petitioners on the legal and policy issues are fully and amply set forth In the pleadings already filed, and nothing has been• presented which would indicate the need or desir- ability of further study or proceedings; thus we are not persuaded that any pub- lic purpose would be served by Initiating rule making In this area, as requested by the law firm of Smith, Pepper, Shack and L'Heureux. We note that the petition for rule making does not propose the adop- tion of any rules, but only the provision of a forum for consideration of the legal and policy arguments urged by peti- tioners and discussed herein. We do not think that a rule making proceedillJ is either needed or appropriate -for their resolution." 59. And, finally, we point out that we could not in any event conclude that stay relief would be -warranted pending any sucil further procecdings. This is not only because we believe that petitioners have not 'shown any substantial likelihood of ultimately prevailing on the merits of n As set forth In par. 43 above, n•e agree NN•ith the CBS position that licensee responsi- bilities under the Fairness Doctrine, In this as In other areas. should not be subject to per se guidelines, ratios or other rigid rules prescribed by the Commission. Accordingly, we would- not undertake rule making to prescribe such standards in the absence of some compelling showing leading us to revise our present judgment (see par. 43) snd to conclude that rule making In this particular area icould be appropriate and would serve a useful purpose. tdOTICES their position, either before this Coln- nlission or the courts, but also because the public interest would require denial of such relief on injtu•y grounds. We have already set forth the basis for our be- lief that compliance with the ruling will not cause any substantial adverse im- pact on the broadcasting or advertising industries. We have not been shown that any irreparable injury will flow to peti- tioners. In any event, In view of the strong public interest in adequately in- forming the public, and particularly teen- agers, as to the health hazard Involved In the cigarette habit which broadcast facilities are encouraging them to adopt and continue, we think that any injury to the affected Industries Is outweighed by the danger of irrepaa•able injul•y to the public. Indeed, if our ruling will con- tribut.e to the avoidance of one untimely death, the public interest would not be served by any delay In Its effectivetless. 60. In connection with this latter point, we have taken Into account the further studies which have been undertaken since the Advisory Committee Report by persons competent in this field. Most important, of course, is the recent HEW Report of July 12, 1967 (already dis- cussed itl paragraph 33 and since con- firmed and amplified In its Report of Au- gust 1967). We shall therefore note here other pertinent studies. In February 1966 Dr. E. Cuyler Hammond's study for the National Cancer Institute made the first large scale survey of women cigarette smokers. His study showed that such v;omen's death rate from heart dis- ea,e and lung cancer were twice that of nonsmokers." In May 1966 Dr. Green of Harvard University reported experi- ments with3abbits proving cigarette smoking can cause many lung and throat ailments." Roswell Memorial In- stitute announced in August 1966 a re- port finding filter tips of several ciga- rette brands ineffective In screening out harmful tars and nicotine. This re- port acknowledged that some filters were better than other, but asserts that none protects smokers" A study by the Public Health Service and the American Cancer Society re- ported In October 1966 that a 5--year study of Seventh Day Adventists In Cali- fornia, comparing death rates of 11,071 male Adventists who do not smoke and the gel:cral rna;e California population, shov.ed one-sixth as many lung cancer deaths and one-third as nlany deaths frem all respiratory diseases among Ad- ventists as among the total male popu- lation.` Also In October 1966, a Louisiana State University 5-year study, financed partly by the Tobacco Research Cotulcil, reported findings of a relationship be- txcecn cigarette smoking and hardening of the arteries in the heart." Just re- cently, in a formal report to the Presi- dent, it was stated by Dr. Kenneth M. Endicott, Chief of the National Cancer Institute, that "lung cancer-whtch will ='::ew York Times, Feb. 23, 1966, 41: 8. ~ tiew York Titnes, May 2, 19GG, 39: 1: ~~?:ew York 17mes, Aug. 30, 1960, 1: 7. w-:-:ew York Times, Oct. 12, 1966, 54: 1. " lccw York Times, Oct. 22, 19G6, 20: 2. • kill more than 50,000 Americans tilis 3ear-can be brought under control be- cause it is clearly caused by environ- r•ental factors-chiefly cicarettes:' The- President was also advised that "lung cancer has rcached epidemic levels In men and may soon do so in women: "r 61. As stated In our ruling, of most serious concern to the Commission are statistics as to the correlative rise In cigarette consumption and teenage smokillg. In January 19G6 the Depart- ment o.f Agriculture In a public report entitled, "T o b a c c o Situation", an- nounced that 1L165 bad been a record year for cigarette consumption." The reason given by the Surgeon General for the Increase was new smokers, not- the increased use of tobacco by the then- current smokers" In July 1966 Surgeon General Stewart reported, based on American Cancer Society and Public Health Service surveys, that one-half of American teenagers are regular smokers by age 18, despite 2?2 years of Intensive educational efforts." In October 1966 the Rand Youth Poll, conducted by the Youth Research Institute, released find- ings that teenagers smoke 10 million cig-. arettes per week, that 53 percent of all 16-19 year olds are smokers, and that this represents a rise of 4 percent In this age group during the almost 3-year pe- riod since the Advisory Committee's Re- -port." In November 1966 the American Cancer Society noted a 6-year study by Dr. E. Cuyler Hammond showing a marked drop In cigarette smoking anlong older people and a rise In consumption by young people ° In December 1966 the Agriculture Department announced that Americans had once again set a new rec- ord for total consumption of cigarettes per year." In light of the statistics con- cerning teenage smoking, this Increase In consumption appears correlated to the Increase In population which ocburs through the Increase In youthful persons. 62. We wish to make it clear that this Commission Is not the proper arbiter of the scientific and medical lssue here in- volved and -of course has not sought to resolve that Issue. We have cited the re- ports In question because they establish (1) that here is a most substantial con- - troversial Issue of public importance, which must be fairly aired to the Amerl- can people, and (11) that because of the seriousness of the issue to the health of the people, a stay Is patently inconsistent with the public interest. We recognize that there are countering efforts and argurnents put forth particularly by the tobacco Industry; there are also new and continuing developments In this field. See Hearings before the Consumer Sub- conunittee of the Senate Commerce Com- mittee to review pro;ress being made toward development and marketing of a less hazardous cigarette. We have not gone into deta il on these matters, because r Tho Washington Post, July 22, 1967, 2: 1. "New York ZSmes, Jan. 2, 1966, IV, 7:1. 31Nrw York Times, Jan. 11, 19C6, 9:1. "New York Times, July 17, 1066, IV, 10:1. •1Advertising Age, Oct. 31, 1906. - 4=New York T1mes, Nov. 3, 1966, 41:1. - ,"New York Titnes, Dec. 31, 1966, 4:6. FEDERAL REGISTER, VOL. 32, NO. 179-FRIDAY, SEPTEM6ER 15, 1967 ~ O ~ m OD- ! t0 tJ 1-

0. they do not alh:r the two crucial findin:;s set forth above. 63. As stated, this Commission ai;recs wit.h the crucial point set forth In the concludin;,~ paragraph of the recent l i'C Report (see par. 34 ): In view of the Con- gressional action, the Government and private reports, we conclude that a s tay of our action would be contrary to the public Interest. Licensecs must therefore abide by the ruling, or seek judicial re- view of it (see Red Lion Broadcasting Company v. F.C.C. supra). (Even In the event of such review, the ruling remains effective, absent entry of a Court stay.) II. CONCLUSIONS 64. There is, ,ve believe, some tendency to miss the main point at issue by con- centration on labels such as the specifics of the Fairness Doctrine or by conjuring up a parade of "horrible" extensions of the ruling. The ruling Is really a simple and practical one, required by the public Interest. The licensee, who has a duty "to operate In the public interest" (§ 315 (a)), is presenting commercials urging the consumption of a product whose normal use has been found by the Con- gress and the Government to represent a serious potential )lazard to' public health. Ordinarily the question presented "woltld be how the carriage of such coln- nlercials is consistent with the obligation to op2rate in the public Interest. In view of the Legislative history of the Cigarette Labelling Act, that question is one re- served for judguient of the Congress upon the basis of the studies and reports subinitted to it (except, of course, for whatever voluntary judgment the broad- casting industry might now make). But there is, we think, no question of the continuing obligation of a licensee who presents such commercials to devote a significant amount of time to informing his listeners of the ot.her side of the nlat- ter-that however enjoyable smoking may be, It represents a habit which may cause or contribute to the earlier death of the user. This obligation stems not from any esoteric requirements of a par- ticular doctrine but from the simple fact that the public interest means nothing if it does not include such a responsi- b[)ity. 65. In light of all the foregoing, we conclude and find: a. The ruling as to the applicability of the Fairness Doctrine to ci-zarette adver- tisillg is vvithin the Commission's legal authority and discretion, and is In the public interest. b. Petitioners have made no showing which warrants reconsideration and withdrawal of the ruling or the Institu- tion of rule making in this area. c. Petitioners have made no showing that re)ief, except as illdicated in para- graph 6 above, is warranted or In the public Interest; on the contraly, the grant of stay relief would be likely to cause Irreparable harm to the pablic. According2y, it is ordered, Tilat the petitions and requests for re- consideration, rule making, and stay listed In paragraph I of this memoran- durn opinion and order are denied, except \ NOTICES to the extent that relief Is granted here[n pending hublication of this tuemorandum opinion and order In the I'SDERAL REG- ISTER It is lurther ordered, T"nat copics of this memorandum opinion and order shall be mailed to all broadcast licensees of the Commission. •Adopt.ed: September 8, 1967. Released: September 13, 1967. FEDERAL COI.IMUNICATIONS CoIviMIsSION; " [SEAL] BEN.F. WAPLE, . Secretary. APYENDITi A _• BACKGROUND TO 1965 CiGAELTTE LABELLING ACT 1. On January 11, 1964, the Report of the Surgeon General's Advisory Cominittee con- cluded that cigarette smoking contributes substantially to mortallty from certain specific diseases and to the overall death rate. The Committee recommended that "cigarette smoking Is a health hazard of sufficient Im- portance in the United States to warrant ap. propriate remedial action." After the Report was issued, many groups private and public acted to provide this "lemedial action." (a) Thc Tobacco and Broadcasting . Industries 2. Soon after the Advisory Committee's R.eport, the tobacco and broadcasting in- dustries reacted with voluntary measures to control the content of cigarette advertising. In January 1964 the Television Code Review Board and the Television Board of Directors of the NAB recommended and approved specific amendments to the Television Code. The amendments prohibited some types of cigarette advertising directed at young people and health claims in cigarette advertising? In June 1954 similar amendments were ap- proved for the Radio Code.2 These Code amendments were motivated by the Advisory Committee's Report. In -the words of the TelevIsion Code Review Board (Hearings, Senate Commerce Committee on S. 559 and S. 547, 89th Cong., 1st sess., pt. 1, p. 591): The board recognizes the burden of re- sponsibility the report imposes on all televi- sion licensees In the area of cigarette adver- d+ Statements of Commissioners Loevinger and Johnson filed as part of the original doc- ument; Commissioner Wadsworth absent. 1 Television Code, section IV, Program Standards, paragraph 12: Care should be exercised so that cigarette smoking will not be depicted In a manner to impress the youth of our country as a desirable habit worthy of imitation. Television Code, section IX, General Ad- vertising Standards, paragraph 7: The ad- vertising of cigarettes should not be pre- sent.ed In a manner to convey the lmpression that cigarette smoking promotes health or is lmportant to personal development of the youth of our country. =P.adio Code I, Program Standards, section H. 13: The use of cigarettes shall not be presented in a manner to lmpress the youth of our country that it Is a desirable habit worthy of imitation in that it contributes to health, individual achievement, or social acceptance. Radio Code, Advertising Standards, section C(g) : The advertising of cigarettes shall not state or imply claims regarding health and shall not be presented in such a manner as to lndicate to the youth of our country that the use of cigarettes contributes to Individual achievement, personal acceptance, or Is a habit worthy of Smitation. ];1173 tlsir.g. Sp,clf ctdly, thc boaid 1s conccrned with the potential of clgarettc adverlising to give the false l1npresion tlO1t ciFaretle smol:- 1ng promotk-s hnllth or l4lsic:.l v:cll-bcing. Tilo Code Authority also m:cde clcar that regulation initiatcd by the cigarette nvcnu- faoturers was what they envisaged. 'J'InLS the Authority provided that It brould delay the Issuance of general guidelines (interpreting the code arncndments) which would assist advertisers and code subserlbcrs 1n adhering to the television code restrictfon.s, peudfng its dettrmfllation of the implementation and effectiveness of the tob acco industry's self- regulation. Id., at p. 592. S. In April 1964 the major cigarette com- panies announced their agreement and ad- herence to a clgarette advertising code to im- pose standards and enforcement procedures for the self-regulation of cigarette advertis- ing. The code provided advcrtisino.standards which would be applied by an indepenclent admfnistrator who would survey the advertis- ing and labeling of cigarettes In the United States, with the power to levy fines for any advertising or labeling which does not con- form to the lndustry code standards. These standards are basically of three types. The first prohibits many types of cigarette ad- vertising specifically directed at persons under 21 years of age. Another prohibits . health claims, except in certain limited cir- cumstances. The third typo prohibits su.gges- tlons that smoking Is essential to soclal prominence, distinction, success, or sexual attraction. Robert B. 1`:eyner, the former Governor of New Jersey, Is the first and cur- rent administrator for the code. In evaluat- ing the effect of the code on cigarette ad- vertising, A4r. ISeyner said in a Senate hear- ing (id., at p. 568) that the character of cigarette advertising had becn altered as a result of his enforcement of the code' (b) HE1V cnd Private Health Agencies 4. The Department of Health, Education, and Welfare (HEW) also took action after the Advisory Committee's Report. On Febru- ary 18, 1964, the -Slugeon General, Luther Terry, convened a meeting of four voluntary agencies' to discuss with them and other health agencies means of implementing the recommendations contained In the Advisory Committee Report. This meeting eventually resulted !n the establishment of the Na- tional Interagency Council on Smoking and Healtb on July 9, 1965. The purposes of the COullcil are threefold: "(1) To use Its pro- fessional talents to bring to the nation- particularly the young-an Increasing aware- ness of the health hazards of cigarettc smok- ing, (2) to encourage, support, and assist National, State, and local smoking and health programs, and' (3) to generate and coordinate public interest and action re- lated to this area of health." The member- ship of the Council Includes 13 private agencies and three Federal Government agencies (US. Public Health Service, U.S. Office of Education, and U.S. Children's Bureau). sHowever, we note the following exchange between Code Administrator Jfeyner and Senztor Bass (id., at p. 581) : "Senator B ass: don't you believe that the Industry Stself, with you as the ad- ministrator, don't 'you believe that you are capable of protecting the health of the American public as far as advertising of cigarettes Is concerned4 . "Codo Administrator Tfeyner: I think yo}t , describo a responsibility that Is greater than 1s set forth In the code. As the code sets It forth, I am trying to accept that responsibility • • •" . FEDFRA4 REGISTER, VOL. 32, NO.- 179-FRIDAY, SEPTEMBER 15, 1967 . Ln O . ~ m ~ %D N v

13174 5. In 1964, the Public Health Serz lce, which strongly endorsed the conclustons of the Advisory Comtr.ittee's Report, aaarded 30 grants and contracts to support dcmcn- strations and projects to design effective niethods of reaching various population groups with the facts about Sn;o•r.ing. The comprclrcnsive cGucational campaigns, how- ever, which the Public Health Service desired to start had to await appropriations forth- coming from the 89th Congress. The Presi- dent's Commission of Heart Dlsease, Cancer and Stroke recommended an appropriation of $10 rnillion to educate the public on the health hazards of smoking and to provide a network of control clinics to assist those who desire to give up smoking. Two million dollars were forthcoming 1n the fall of 1965. (c) The Federal Trade Comnrission 6. As early as September 1955 the Federal Trade Commission (FTC) had promulgated Cigarette Advertising Guides which, among other things, prohibited representations In cigarette advertising or labeling which refer to either the'presence or absence of any physical eSectss from cloasette smoking, or whlch made unsubstanttated claims respect- ing nicotine, tars, or other components of cigarette smoke, or which In any other re- NOTICES rpect contain impllcatlons concerning the health consequences of smoking cigarettes or any ndvertised brand (F.T.C. Ann. Rept., 1?G0, p. 82). In 19G0 the FTC obtained agrce- ment Srcm leading cigarette manuf :cturers to elirninatc unsubstantiated claims of nico- tinc and tar content (ibid.). 7. Shortly after the lssuance of the Ad- visory Committee's Report, the FTC, on Jan- uary 18, 3964, initiated a Trade Regulation rule rnaktng proceeding concerning the ad- vertlsing and labeling of cigarettes. On June 22. 1064, after examining the advertising, labeling and other promotional practices In the cigarette indtlstry, the F'TC concluded that cigarette manufacturers should be re- quired to make an aIIirmative disclosure of the potential lra7.ard from smoking In label- ing and advertlsing (29 F.R. 8325). The basis for 1ts conclusion was twofold. First, the FTC found that the consensus of medical and scicntific opinion was that cigarette smoking Is a signlfrcant cause of certain grave diseases and contributes to the overall death rate. Second, the FTC found that the methods by which cigarettes had been and were bcing sold to the consuming public-by mea r~.s of label- ing and advertising which falls to disclose the health h azards of cigarette smoking- ,we:e deceptive and unfair to consumers un- der seltled legal prir.clples governing truth r.nd fairness In adt•ertlsing. The rule would have required that each cigarctte package. bear a warning statcment by January 1. 1L'G5. ALao, if the aarnings on the package together with such voluntary advertlsing rc- forms as the lndustry rnioht have undertaken In the lnterim, had failed to change the clr- cutnst.vtces leading to the FTC's f ndings, the rule would have then required, In addi-' tion, warnings In all cigarette advertising by July 1. 1965. ' 8. On September 3, 19G4, at the request of Chairman Harris of the House Commerce Committee, the FTC extended the effective date of the rule for both packaging and ad-; vertlsing warnings to July 1, 1905 (29 F.R. 15570). Chairman Harris stated that he had requested such action because testimony which he had received during his Committee's Rcarings In June and July 1964 lndicated that the validity of the trade regulation rule would be challenged In the courts, that Judf- cial review could delay the enforcement of the labeling requirements for a considerable period of time, and that the enactment of legislation 1n this area by the Congress could very well eliminate this delay. The FTC rule never went Into effect because Congress en- acted the Cigarette Labeling Act: [F.R. Doe. 67-10743; Filed, Sept, 14, 1967; 8:45 a.m.) FEDERAL REGISTER, VOL. 32, NO. 179-FRIDAY, SEPTEIAf3ER 15, 1967 M O -.~ CD O - ~ ~ N m I