The Blatnik hearings thus produced few immediate results in the late 1950s. But, having been incubated over six years, they produced a powerful effect. The publication of the surgeon general's report in 1964 revived Blatnik's argument. The FTC had been revamped into a younger, streamlined agency, and within days of the report's release, a team of youthful lawmakers began to assemble in Washington to revisit the notion of regulating tobacco advertising. A week later, in January 1964, the FTC announced that it would pursue the lead. Given the link between cigarettes and cancer--a causal link, as recently acknowledged by the surgeon general's report--cigarette makers would need to acknowledge this risk directly in advertising for their products. The most effective method to alert consumers about this risk, the commission felt, was to imprint the message onto the product itself. Cigarette packages were thus to be labeled with Caution: Cigarette Smoking Is Dangerous to Health. It May Cause Death from Cancer and Other Diseases. The same warning label was to be attached to all advertisements in the print media.
As news of the proposed FTC action moved through Washington, panic spread through the tobacco industry. Lobbying and canvassing by cigarette manufacturers to prevent any such warning label reached a febrile pitch. Desperate to halt the FTC's juggernaut, the tobacco industry leaned on Abe Fortas, President Johnson's friend and legal adviser (and soon to be Supreme Court justice), and Earle Clements, the former governor of Kentucky who had become Little's replacement at the TIRC in 1959. Led by Clements and Fortas, tobacco makers crafted a strategy that, at first glance, seemed counterintuitive: rather than being regulated by the FTC, they voluntarily requested regulation by Congress.
The gambit had a deeply calculated logic. Congress, it was well-known, would inherently be more sympathetic to the interests of tobacco makers. Tobacco was the economic lifeblood of Southern states, and the industry had bribed politicians and funded campaigns so extensively over the years that negative political action was inconceivable. Conversely, the FTC's unilateral activism on tobacco had turned out to be such a vexing embarrassment to politicians that Congress was expected to at least symbolically rap the wrist of the vigilante commission--in part, by lightening its blow to tobacco. The effect would be a double boon. By voluntarily pushing for congressional control, the tobacco industry would perform a feat of political acrobatics--a leap from the commission's hostile fire to the much milder frying pan of Congress.
So it proved to be. In Congress, the FTC's recommendation was diluted and rediluted as it changed hands from hearing to hearing and committee to subcommittee, leading to a denervated and attenuated shadow of the bill's former self. Entitled the Federal Cigarette Labeling and Advertising Act (FCLAA) of 1965, it changed the FTC's warning label to Caution: Cigarette smoking may be hazardous to your health. The dire, potent language of the original label--most notably the words cancer, cause, and death--was expunged. To ensure uniformity, state laws were also enfolded into the FCLAA--in effect, ensuring that no stronger warning label could exist in any state in America. The result, as the journalist Elizabeth Drew noted in the Atlantic Monthly, was "an unabashed act to protect private industry from government regulation." Politicians were far more protective of the narrow interests of tobacco than of the broad interest of public health. Tobacco makers need not have bothered inventing protective filters, Drew wrote drily: Congress had turned out to be "the best filter yet."
The FCLAA bill was a disappointment, but it galvanized antitobacco forces. The twisting of an unknown piece of trade law into a regulatory noose for tobacco was both symbolic and strategic: an unregulatable industry had been brought to heel--even if partially so. In 1966, a young attorney barely out of law school, John Banzhaf, pushed that strategy even further. Brash, self-confident, and iconoclastic, Banzhaf was lounging at home during the Thanksgiving holiday of 1966 (watching the omnipresent cigarette ads) when his mind raced to an obscure legal clause. In 1949, Congress had issued the "fairness doctrine," which held that public broadcast media had to allow "fair" airtime to opposing viewpoints on controversial issues. (Congress had reasoned that since the broadcast media used a public resource--airwaves--they should reciprocate by performing a public function, by providing balanced information on controversial issues.) The doctrine was little known and little used. But Banzhaf began to wonder whether it could be applied to cigarette advertising. The FTC had attacked the disingenuousness of the tobacco industry's advertising efforts. Could a parallel strategy be used to attack the disproportionality of its media presence?
In the early summer of 1967, Banzhaf dashed off a letter to the Federal Communications Commission (the agency responsible for enforcing the fairness doctrine) complaining that a New York TV station was dedicating disproportional airtime to tobacco commercials with no opposing antitobacco commercials. The complaint was so unusual that Banzhaf, then on a four-week cruise, expected no substantial response. But Banzhaf's letter had landed, surprisingly, on sympathetic ears. The FCC's general counsel, Henry Geller, an ambitious reformer with a long-standing interest in public-interest broadcasting, had privately been investigating the possibility of attacking tobacco advertising. When Banzhaf returned from the Bahamas, he found a letter from Geller:
"The advertisements in question clearly promote the use of a particular cigarette as attractive and enjoyable. Indeed, they understandably have no other purpose. We believe that a station which presents such advertisements has the duty of informing its audience of the other side of this controversial issue of public importance--that, however enjoyable, such smoking may be a hazard to the smoker's health."
With Geller's consent, Banzhaf filed his case against the TV station in court. Predictably, tobacco companies protested vociferously, arguing that legal action of this sort would have a chilling effect on free speech and vowing to fight the case to its bitter end. Faced with the prospect of a prolonged court battle, Banzhaf approached the American Cancer Society, the American Lung Association, and several other public health organizations for support. In all cases, he was rebuffed.
Banzhaf chose to go to trial anyway. Dragged into court in 1968, he squared off against "a squadron of the best-paid lawyers in the country, row after row of them in pinstripe suits and cuff links"--and, to the utter shock of the tobacco industry, won his case. The court held that "proportional airtime" had to be given to protobacco and antitobacco advertising. The FCC and Geller leapt back into the arena. In February 1969, the commission issued a public announcement that it would rigorously police the "proportional airtime" clause and, given the public-health hazard of tobacco, seek to ban cigarette commercials from television altogether. Tobacco makers appealed and reappealed the Banzhaf decision, but the Supreme Court refused to hear the case, letting the decision stand.
The industry tried to mount an aggressive countercampaign. An unpublicized internal report drawn up in 1969 to respond to the looming threat of the FCC advertising ban concluded, "Doubt is our product, since it is the best means of competing with the 'body of fact.'" But antismoking advocates had also learned the tricks of the trade; if tobacco sellers had "doubt" to sow into public minds, then tobacco opponents had something just as visceral: fear--in particular, fear of the ultimate illness. A barrage of antismoking commercials appeared on television. In 1968, a worn and skeletal-looking William Talman, a veteran actor and former smoker, announced in a prime-time advertisement that he was dying from lung cancer. Narcotized on painkilling medicines, his words slurring, Talman nonetheless had a clear message for the public: "If you do smoke--quit. Don't be a loser."
In late 1970, faced with the daily brunt of negative publicity, tobacco makers voluntarily withdrew cigarette advertising from broadcast media (thus nullifying the need for a proportional representation of antitobacco commercials). The last cigarette commercial was broadcast on television on January 1, 1971. At 11:59 p.m., on the first night of the New Year, the Virginia Slims slogan You've come a long way, baby flashed momentarily on TV screens, then vanished forever.
Tal
man did not live to see that final advertisement. He had already died in 1968 of lung cancer that had metastasized to his liver, bones, and brain.
The mid-1970s thus marked the beginning of the end of an extraordinary era for the tobacco industry. The surgeon general's report, the FCLAA label warning, and the attack on cigarette advertising represented high-impact, sequential assaults on an industry once thought virtually impregnable. It is difficult to quantify the precise impact of any of these individual strategies, but these attacks coincided with a notable change in the trajectory of tobacco consumption: having risen unfailingly for nearly six decades, annual cigarette consumption in America plateaued at about four thousand cigarettes per capita.
The campaign against tobacco now needed one last strategy to consolidate these victories and drive them home to the public. "Statistics," the journalist Paul Brodeur once wrote, "are human beings with the tears wiped off," and thus far the antitobacco campaign had offered plenty of statistics, but with the human victims of tobacco somehow effaced. Litigation and regulation had occurred seemingly in the abstract; the FCLAA warning-label action and the fairness-doctrine case had been fought on behalf of cigarette "victims," but faceless and nameless ones. The final rondo of legal assaults against tobacco would, at long last, introduce the American public to the real victims of tobacco, men and women who had quietly been succumbing to lung cancer while Congress had deliberated the pros and cons of attaching a nine-word sentence to a packet of cigarettes.
Rose Cipollone, born Rose DeFrancesco in New York, tasted her first cigarette as a teenager in 1942. She represented the midpoint of a steeply rising curve: between 1940 and 1944, the fraction of female smokers in the United States more than doubled, from 15 to 36 percent. That astonishing rise was the product of arguably the most successful targeted campaign ever launched in the history of American advertising--to persuade women to smoke. In this, tobacco rode on the back of a much deeper social change: in a world increasingly unsteady for women--with women juggling personal identity, child care, homemaking, and work--tobacco was marketed as a normalizing, steadying, even liberating force. Camel's campaign depicted a naval officer firing a torpedo in the high seas, while his wife at home calmed her stormy nerves with a cigarette. "[It's] a game only for steady nerves," the copy ran. "But, then, what isn't in these days--with all of us fighting, working, living at the highest tempo in years." Rosie the Riveter, the quintessential symbol of wartime womanhood, was now recast as Rosie the Smoker, depicted in Chesterfield's advertisements with a cigarette in hand. Smoking was a form of national service, and perhaps even Rosie's perpetual composure in the face of intense pressure ("never twittery, nervous or jittery," as the advertising song ran) could also be chalked up to the calming influence of her cigarette.
Like the eponymous Rosie looming larger than life on the twenty-foot billboards above her, Cipollone also chose to calm herself with Chesterfields. She began as a schoolgirl, rebelliously smuggling a few cigarettes here and there after classes. But as the economy soured and dipped in the 1930s, she dropped out of school, taking up jobs as a packer in a scarf factory and then as a billing clerk, and her habit escalated. Within just a few years, she had ramped up her consumption to dozens of cigarettes a day.
If Cipollone was ever nervous or jittery, it was in those rare moments when she confronted the health warnings about cigarettes. After her marriage, her husband, Anthony Cipollone, ran a quiet countercampaign, leaving her newspaper clippings that warned against the many hazards of smoking. Rose tried to quit, but relapsed each time with even greater dependency. When she ran out of cigarettes, she scoured the trash to smoke the burnt butts.
What bothered Cipollone was not her addiction, but, oddly, her choice of filters. In 1955, when Liggett introduced a new filter-tip cigarette named L&M, she switched brands expectantly, hoping that the advertised "milder, low tar, low nicotine" would be safer. The quest for the "safe cigarette" turned into a minor obsession for Cipollone. Like a serial monogamist of cigarettes, she bounced and rebounded from brand to brand, hoping to find the one that might protect her. In the mid-1960s, she switched to Virginia Slims, reasoning perhaps that a cigarette marketed exclusively for women might contain less tar. In 1972, she switched yet again to Parliaments, which promised a longer, recessed filter that might "insulate" a smoker's lips from the smoking tip. Two years later, she switched again, this time to True cigarettes because, as she would later describe in court to an astounded jury, "The doctor recommended them. . . . He said to me, 'You smoke and you might as well smoke these,' and he took out of his coat pocket a package of cigarettes."
In the winter of 1981, Cipollone developed a cough. A routine chest X-ray to evaluate the cough revealed a mass in the upper lobe of her right lung. A surgical biopsy revealed lung cancer. In August 1983, metastatic lung cancer was found all over Cipollone's body--malignant masses in her lungs, bones, and liver. She started chemotherapy, but had a poor response. As the cancer advanced into her marrow and burrowed into her brain and spinal cord, she was confined to bed, with shots of morphine to relieve her pain. Cipollone died on the morning of October 21, 1984. She was fifty-eight years old.
Marc Edell, a New Jersey attorney, heard of Cipollone's diagnosis eleven months before her death. Ambitious, canny, and restless, Edell possessed a deep knowledge of tort litigation (he had defended asbestos manufacturers against product-liability suits in the 1970s) and was looking for an iconic "victim" of cigarette smoke to launch a legal attack on tobacco. In the summer of 1983, Edell thus traveled to the sleepy suburban town of Little Ferry to visit Rose Cipollone and her family. Realizing that she was dying, he urged the Cipollones to file their suit against the three cigarette manufacturers whose products Rose had extensively used--Liggett, Lorillard, and Philip Morris.
Edell's case, filed in 1983, was ingeniously crafted. Previous cases against tobacco companies had followed a rather stereotypical pattern: plaintiffs had argued that they had personally been unaware of the risks of smoking. Cigarette makers had countered that the victims would have had to be "deaf, dumb and blind" not to have known about them, and juries had universally sided with cigarette makers, acknowledging that the packaging labels provided adequate warnings for consumers. For the plaintiffs, the record was truly dismal. In the three decades between 1954 and 1984, more than three hundred product-liability cases had been launched against tobacco companies. Sixteen of these cases had gone to trial. Not a single case had resulted in a judgment against a tobacco company, and not one had been settled out of court. The tobacco industry had all but declared absolute victory: "Plaintiff attorneys can read the writing on the wall," one report crowed, "they have no case."
Edell, however, refused to read any writing on any walls. He acknowledged openly that Rose Cipollone was aware of the risks of smoking. Yes, she had read the warning labels on cigarettes and the numerous magazine articles cut out so painstakingly by Tony Cipollone. Yet, unable to harness her habit, she had remained addicted. Cipollone was far from innocent, Edell conceded. But what mattered was not how much Rose Cipollone knew about tobacco risks; what mattered was what cigarette makers knew, and how much of the cancer risk they had revealed to consumers such as Rose.
The argument took the tobacco companies by surprise. Edell's insistence that he needed to know what cigarette makers knew about smoking risks allowed him to ask the courts for unprecedented access to the internal files of Philip Morris, Liggett, and Lorillard. Armed with powerful legal injunctions to investigate these private files, Edell unearthed a saga of epic perversity. Many of the cigarette makers had not only known about the cancer risks of tobacco and the potent addictive properties of nicotine, but had also actively tried to quash internal research that proved it. Document after document revealed frantic struggles within the industry to conceal risks, often leaving even its own employees feeling morally queasy.
In one letter, Fred Panzer, a public relations manager at the Tobacco Research Institute, wrote to Horace Kornegay, its presi
dent, to explain the industry's three-pronged marketing strategy--"creating doubt about the health charge without actually denying it, advocating the public's right to smoke without actually urging them to take up the practice [and] encouraging objective scientific research as the only way to resolve the question of health hazard." In another internal memorandum (marked "confidential"), the assertions were nearly laughably perverse: "In a sense, the tobacco industry may be thought of as a specialized, highly ritualized and stylized segment of the pharmaceutical industry. Tobacco products, uniquely, contain and deliver nicotine, a potent drug with a variety of physiological effects."
Pharmacological research on nicotine left no doubt about why women such as Rose Cipollone found it so difficult to quit tobacco--not because they were weak-willed, but because nicotine subverted will itself. "Think of the cigarette pack as a storage container for a day's supply of nicotine," a researcher at Philip Morris wrote. "Think of the cigarette as a dispenser for a dose unit of nicotine. . . . Think of a puff of smoke as the vehicle of nicotine."
In a particularly memorable exchange, Edell quizzed Liggett's president about why the company had spent nearly $5 million to show that tobacco could cause tumors to sprout on the backs of mice, and then systematically chose to ignore any implications for carcinogenesis in humans:
Edell: What was the purpose of this [experiment]?
Dey: To try to reduce tumors on the backs of mice.
Edell: It had nothing to do with the health and welfare of human beings? Is that correct?
Siddhartha Mukherjee - The Emperor of All Maladies: A Biography of Cancer Page 32
