Ashes to Ashes (65 page)

Individual companies in their occasional public statements remained equally hard-nosed. American Tobacco, perhaps the most unyielding member of the industry on the health charges, stated flatly at its 1967 annual meeting that “no clinical or biological evidence has been produced which demonstrates how cigarettes relate to cancer or any other disease in human beings.” And Philip Morris was no more conciliatory. About a year after the American Tobacco statement, PM’s new president, George Weissman, disdainfully told
Dun’s Review
that the health issue had proven a major distraction to the company: “A great deal of our time is consumed by this harassment—time we could be using to build up our business.” He went on to declare that “[n]o clearcut case against cigarette smoking has been made despite millions spent on research” and added indefensibly, “The longer these tests go on, the better our [the industry’s] case becomes … .”

One informed and highly skeptical insight into such statements by Weissman and other industry executives was given by Paul Kotin, pioneer member of the CTR’s Scientific Advisory Board and longtime tobacco industry consultant (even for several years after joining the National Cancer Institute as a ranking official). Betraying a deep ambivalence about his relationship with the cigarette makers’ research programs, which he had helped dignify by his presence, Kotin recalled how he had hit it off over the years with Weissman, who he believed was “basically a decent, generous guy. But I became greatly disillusioned by him.” The suave Philip Morris executive would light up a lot of cigarettes, Kotin noticed, “but he always stubbed them out after a few puffs,” as if acknowledging that the longer he dragged on each one, the worse his exposure to its hazardous contents. Kotin came to feel insulted by Weissman’s refusal to own up to the health peril—“and the same way with Pete [Clarence] Little. They knew the real relationship [between smoking and disease formation], and they were denying it. And who was I to tell them off?”

VII

REGARDLESS
of the cigarette manufacturers’ efforts, signs were appearing everywhere that Americans had begun to accept the truth about smoking. A Gallup poll reported in 1968 that 71 percent of the country believed that smoking caused cancer; only 44 percent had ten years before. A
Louis Harris poll found that the percentage of Americans over twenty-one who smoked had fallen from 47 to 42 in the four years following the first report of the Surgeon General. Four million were said to be quitting the habit every year, the American Cancer Society was passing out “I.Q.” buttons (for “I Quit Smoking”) in a national campaign featuring film actor Tony Curtis and thousands of posters by Peter Max proclaiming, “Life Is So Beautiful—Stay Alive—Don’t Smoke,” and U.S. mail trucks were adorned for a time with placards that said, “100,000 Doctors Have Quit Smoking—Do They Know Something You Don’t?” Programs and clinics to help smokers through the ordeal of stopping began to open, some of them free, some charging several hundred dollars for courses running as long as eight weeks, like SmokEnders; success rates were said to range between 20 and 40 percent, but verification of claims was difficult since relapse was common. The anticigarette commercials mandated by the FCC appeared to be having an arresting effect on the nation’s consciousness of the perils of smoking. Nearly half of those surveyed reported recalling at least one of the cautionary broadcast messages, and one-third of the viewing smokers said they had cut down or were thinking about it as a result. Annual per capita consumption slipped from 210 cigarette packs in 1967 to 205 in 1968 and just under 200 in 1969.

Although elected officials hesitated to call out for stronger regulatory efforts, the federal bureaucracy grew increasingly outspoken. The “sleeper” provision of the 1965 labeling act providing for annual reports to Congress on the smoking question by HEW and the FTC went into effect in 1967 and served at once as a prominent platform for trumpeting “official” annual reminders of the growing severity of the health problem and the need for action to allay it. U.S. Surgeon General William H. Stewart’s mid-1967 report for HEW noted that none of the 2,000 scientific articles published on smoking since the 1964 report contradicted the main thrust of that document, which, if anything, “may have understated” the relationship between smoking and diseases of the lung and heart. Stewart’s report placed new emphasis on heart disease, which accounted for one of every three deaths in the U.S.; underscored how smoking caused an increased demand for oxygen by the heart even while the intake of carbon monoxide in cigarette smoke reduced the flow of oxygen to the heart muscle; and noted new studies suggesting that smoking might accelerate the formation of blood clots. Smokers were also given memorably jarring statistics, such as that their chances of contracting heart disease were 70 to 200 percent higher than those of nonsmokers and that smoking claimed one American life every 105 seconds. HEW Secretary John Gardner urged Congress to toughen the warning label on packs, add the tar and nicotine yields, and put them on all cigarette advertising as well. A study of 42,000 households by the U.S. Public Health Service found that smokers lost 27 percent more work hours than nonsmokers. In his 1968 report, the Surgeon General referred to
smoking as “the main cause of lung cancer” and to “the increasing convergence of epidemiological and physiological findings relating smoking to coronary heart disease.” A special task force on smoking reported to the Surgeon General that same year and vilified the tobacco industry for “encouraging death and disease” through its advertising and for its “inability or unwillingness … to face up to the health hazards of smoking or even to admit that they exist”—a charge the Tobacco Institute called a “shockingly intemperate defamation of an industry which has led the way in medical research to seek answers in the cigarette controversy.”

Over at the Federal Trade Commission, sentiment was growing for stronger measures than HEW was urging, since the commission had found, in its 1967 report to Congress, “no evidence that the warning statement on cigarette packages has had any significant effect,” and the industry’s advertising, despite claims of rigorous self-policing, continued to stress the desirability and “the relative safety of smoking” and “totally ignore the health hazards.” The proliferation of 100 mm. brands was lamented as a “serious and disturbing trend,” which the commission facetiously suggested might be advertised with the slogan “Extra Health Hazard at No Extra Cost.” When the FTC released its first report on tar and nicotine yields in the fall of 1967, the Tobacco Institute airily dismissed the numbers as meaningless.

By the following year the FTC, noting that every U.S. household with a TV set was being exposed to some 800 cigarette commercials a year, made a bold call for the total elimination of tobacco advertising on broadcast media. Still more ringing was the announcement in February 1969 by the FCC that six of its seven commissioners favored putting an end to cigarette commercials—a measure they were permitted to impose after the federal labeling act expired four months later, unless Congress acted in the interim. The commission minimized First Amendment concerns over such a ban on commercial speech by arguing that it was “at odds with the public interest for broadcasters to present advertising promoting the consumption of the product posing this unique danger … measured in terms of an epidemic of deaths and disabilities.”

Attracting four out of every five promotional dollars spent by cigarette makers, television was the tobacco industry’s star salesman. All the claims about taste and flavor notwithstanding, cigarette brands were hard to distinguish except by their packaging and advertising, and the prospect of blacking out the most pervasive ad medium cast the industry into deep gloom. As attorney Abe Krash, long in charge of Arnold & Porter’s counseling of Philip Morris, recounted, “The driving, central people in the business were the advertising and marketing executives, and the television ban would take away their modus vivendi.” And no company had a greater stake in TV just then than Philip Morris, which was using the medium brilliantly. “Marlboro Country” commercials were full of sound, motion, and music: you saw the cowboys in action and
heard the thundering gallop of the horses, the lowing of cattle, the crackle of the campfire. And there was a comparable allure and vivacity in the funny Benson & Hedges “disadvantages” campaign and the saucy beauties purveying Virginia Slims. “Television was where the big money was,” one Philip Morris insider recounted, “where the creativity went, and it was putting our brands over.”

The FCC’s proposed TV ban hardly came as a surprise to the tobacco industry, but now, supported by the ACS and Consumers Union and advanced by Robert Kennedy in the last months of his life and Senator Frank Moss, Democrat from antitobacco Utah, the idea was on the congressional burner. The tobacco people had not sufficiently taken into account the need to cement their alliance with the politically potent broadcasters, who were growing ever more fretful that restrictions on cigarette commercials could lead to possibly ruinous slashes in their revenue. Gathering in Palm Springs for their annual convention in December 1968, the NAB clung to its contention, as voiced by its president, Vincent Wasilewski, that its own TV Code office was competently monitoring cigarette and all other forms of on-air advertising. But network and station owners were asking themselves by then if they would not be better off recognizing that tobacco products were indeed a public-health menace unlike any other.

There were cracks as well within the tobacco industry’s formerly united front, as hardliners and accommodationists struggled for a single strategy in the impending legislative showdown. Lorillard especially had distanced itself from the herd. Its bright young Washington counsel, Robert Wald, had seen what was coming for several years and believed that the two big law firms advising the industry, Arnold & Porter and Covington & Burling, were giving it shortsighted, perhaps suicidal guidance. In a May 4, 1969, article in
The New York Times Magazine
by Elizabeth Drew, Wald went public by stating, “It is inevitable that television advertising [of cigarettes] is going to end, one way or the other,” and that by failing to work for a compromise solution, the tobacco industry would wind up a heavy loser.

The industry, however, was still ruled by militants, like the American Tobacco executives who argued that since most smokers did not get lung cancer, the cause must lie elsewhere—and so their product should not be persecuted. Even more sophisticated industry people, like Joseph Cullman, were disinclined to be conciliatory. In remarks to
Newsweek
the week before he testified as the tobacco manufacturers’ prime spokesman before the House Commerce Committee in April 1969, he said, “It’s a hazardous world we live in—and cigarettes are far down the list of hazards … .”

VIII

AFEW
weeks before Joseph Cullman presented the industry’s position on continued or extended regulation of cigarettes before a friendly House committee, big tobacco had lost its ranking statesman, R. J. Reynolds’s recently retired chairman, Bowman Gray, Jr. At sixty-two, Gray had succumbed to the chronic muscular disease that had hobbled him for twenty years.

“Red” Gray had been the epitome of the Southern gentleman, a fine speaker, and something of a wit. Joe Cullman, who greatly respected Gray, was none of those, and, according to some close to him at the time, the Philip Morris chairman did not relish stepping into the spotlight as the newly anointed industry spokesman. The task fell to him in part because he was then serving as board chairman of the Tobacco Institute, but his donning of Bowman Gray’s mantle—it was Gray who had testified for the industry during Congress’s deliberations over the 1965 labeling law—was fitting because Cullman’s company was now the industry’s rising force. Eleven of the twenty-five members of the House Commerce Committee came from big tobacco-growing states and, allied with antiregulatory Republicans from other regions, they formed a solid pro-industry majority that eased Cullman’s anxiety as he took center stage during the thirteen-day hearing.

At first Cullman gave a forceful statement of why the cigarette companies were prepared to live with the warning label after its June 30 expiration date but would not accept anything more stringent. The public knew all about the health charges against smoking, he said, and since there had been no new scientific developments to justify stronger language, the current warning was entirely adequate. But to include it in cigarette advertising, as several government agencies had proposed, would, as a practical matter, lead to the elimination of cigarette advertising—which was no doubt what those who urged it had in mind. The public would not be served by such a measure, Cullman argued, since it would reduce competition and deny consumers information about any new and possibly improved brands.

By then it was widely understood that one reason the tobacco industry was no longer bemoaning the presence of a compulsory warning label on its product was that it served as what Representative John Moss, California Democrat and one of the few outspoken critics of the industry, called a “fringe benefit” that greatly bolstered the companies’ assumption-of-risk defense in liability suits against them—didn’t it, Moss pointedly asked Cullman. The Philip Morris chief denied that characterization, saying that the industry had not asked for such a warning label even though it had been involved in product liability cases when Congress considered the measure. “Oh, friend, it was a clearly
identifiable benefit, and you know it as well as I do,” Moss shot back. Cullman, growing feisty, snapped, “I will have to take exception to that.” But Representative John D. Dingell, Democrat of Michigan, waded in by asking Cullman if as a layman he did not feel that the mandated label provided “all the warning that a prudent man could expect that … cigarettes are harmful to health.” Cullman replied that since he was not a lawyer, he could not competently comment. Dingell persisted, but Cullman held fast. The tough Michigan congressman finally said, “I think, fundamentally, you are obfuscating the issue,” and repeated his question. Cullman, toughing it out, answered, “I am not prepared to answer that.” Dingell would not back off, though. “What is your best judgment?” he asked, meaning was the warning all that a prudent man could expect. Cullman, fearful of seeming unduly slippery, yielded: “I believe it is.” Dingell at once pounced upon the concession: “In other words, one of the functions of the [1965 labeling] law … is to strip potential litigants of the privilege of going in and asserting that they have been injured.”