FEDERAL COMMUNICATIONS COMMISSION
9 F.C.C.2d 921 (1967); 11 Rad. Reg. 2d (P & F) 1901
RELEASE-NUMBER: FCC 67-1029
September 8, 1967 Adopted
BY THE COMMISSION: COMMISSIONERS LOEVINGER AND JOHNSON CONCURRING AND ISSUING STATEMENTS; COMMISSIONER WADSWORTH ABSENT.
[*921] 1. The Commission has before it for consideration: A petition for rulemaking and a petition for stay of effectiveness of application of Fairness Doctrine to cigarette advertising, filed on June 20, 1967, by the law firm of Smith, Pepper, Shack & L'Heureux on behalf of various broadcast clients; a letter, dated June 23, 1967, from Columbia Broadcasting System, Inc. (CBS), requesting reconsideration of a ruling in the Commission's letter of June 2, 1967 to television station WCBS-TV; a petition for reconsideration and a petition for immediate stay of effectiveness pending reconsideration by the Commission, filed on July 3, 1967 by the National Association of Broadcasters (NAB); a letter from Association of National Advertisers, Inc., dated June 29, 1967, requesting reconsideration of the ruling; petitions for reconsideration, incorporating requests for stay, filed by The Tobacco Institute, Inc., et al. and WGN Continental Broadcasting Co., et al. on June 30, 1967, and July 3, 1967, respectively; and petitions or requests for reconsideration filed on July 3 and 5, 1967, by American Broadcasting Companies, Inc. (ABC), National Broadcasting Co., Inc. (NBC), Storer Broadcasting Co., Griffin-Leake TV, Inc., et al., the law firm of Dow, Lohnes, & Albertson on behalf of 17 broadcast licensees, and the law firm of Pierson, Ball, & Dowd on behalf of the licensees of 61 radio and television stations. A petition for reconsideration was filed on August 1, 1967, by the Maryland/District of Columbia/Delaware Broadcasters' Association; and a statement of position by Federal Communications Bar Association on July 27, 1967. n1 Requests for reconsideration have also been received from several congressional sources. A pleading in support of the Commission's ruling has been filed by the complainant, John F. Banzhaf, III; his pleading challenges the standing of the petitioners and many of the arguments [*922] advanced, and urges denial of the relief sought. n2 Petitioners seek rulemaking on, and reconsideration and rescission of, a ruling in the Commission's letter of June 2, 1967, to television station WCBS-TV, New York City, that the Fairness Doctrine is applicable to cigarette advertising (FCC 67-641), and a stay of the effectiveness of the ruling pending action on their petitions.
n1 In Addition, the Commission has received various resolutions from State associations of broadcasters and numerous letters from the public.
n2 We do not find the arguments raised as to petitioners' standing persuasive.
2. Our ruling (FCC 67-641) was made on a complaint against station WCBS-TV, New York, by Mr. John F. Banzhaf, III, who asserted that this station, after having aired numerous commercial advertisements for cigarette manufacturers, had not afforded him or some other responsible spokesman an opportunity "to present contrasting views on the issue of the benefits and advisability of smoking." Specifically, he noted three cigarette advertisements broadcast on November 24, 1966 over WCBS-TV, which presented smoking as "socially acceptable and desirable, manly, and a necessary part of a rich, full life." Attached to the complaint was a letter by Mr. Banzhaf to the station requesting that free time be made available to "responsible groups" roughly approximate to that spent on the promotion of the "virtues and values of smoking." There was also attached a reply to Mr. Banzhaf by WCBS-TV setting forth the programs which it had broadcast on the effect of smoking on health, taking the position that these programs provided contrasting viewpoints on this issue, and stating its view that the Fairness Doctrine may be inapplicable to commercial announcements solely aimed at selling products. In Mr. Banzhaf's complaint, he asserted that the WCBS-TV showing of compliance with the Fairness Doctrine was insufficient to offset the effects of advertisements broadcast daily for a total of 5-10 minutes each broadcast day.
3. The Commission ruled that the Fairness Doctrine is applicable to cigarette advertisements, but rejected Mr. Banzhaf's claim that the time to be afforded roughly approximate that devoted to cigarette commercials. We held that a station which carries commercials promoting the use of a particular cigarette as attractive and enjoyable is required to provide a significant amount of time to the other side of this controversial issue of public importance -- i.e., that however enjoyable, such smoking may be a hazard to the smoker's health. We stated that here, as in other areas under the Fairness Doctrine, the type of programming and the amount and nature of time to be afforded is a matter for the good faith, reasonable judgment of the licensee, upon the facts of his situation; and that accordingly, the initial judgment as to whether sufficient time is being allocated each week in this area by WCBS-TV is one for the licensee.
4. By a letter to the Commission dated June 23, 1967, CBS requests that the contents of its letter be treated as the comments of WCBS-TV on the complaint and that the Commission reconsider its ruling on the basis of these comments. CBS does not request a stay of the effectiveness of the ruling, but does challenge the merits of the ruling.
5. In support of their requests for relief, other petitioners urge that the ruling has broad implications and will affect all licensees carrying [*923] cigarette advertising though they did not have an opportunity to be heard prior to its adoption. It is asserted that substantial doubts as to the validity of the ruling are presented by the various requests for reconsideration and other relief, and that licensees will not dare risk noncompliance pending action on these pleadings lest their noncompliance be raised at license renewal time. It is further asserted that licensees would suffer irreparable damage in the interim by temporarily adhering to the ruling because they would risk loss of substantial amounts of advertising revenue and compliance would disrupt station advertising policies as well as give rise to scheduling and production problems. Consequently, petitioners state, fairness and an equitable administration of the Fairness Doctrine call for a suspension of the effectiveness of the ruling, pending action on the petitions for reconsideration and rulemaking.
6. We agree that the ruling constitutes a precedent on an important issue which will affect licensees other than WCBS-TV and may necessitate a change in the operations of some. In view of the widespread interest in the ruling by persons who have not hitherto been heard, and since stay relief has been requested, we have decided to give expeditious consideration to the arguments made in all of the pleadings before us to determine whether anything has been advanced on the merits which would warrant reconsideration of our ruling, a stay of its effectiveness, or rulemaking in this area. The positions of the parties appear to be amply set forth in the pleadings on file, and we have given thorough consideration to the arguments made in reaching our decision. For the reasons set forth below, it is the conclusion of this Commission that nothing has been advanced which would warrant reconsideration or a stay of our ruling or rulemaking. However, in the circumstances, we have decided for reasons of equity that the conduct of licensees (including WCBS-TV), in applying the Fairness Doctrine to cigarette advertising prior to the publication date of this memorandum opinion and order (which we shall also mail to all broadcast licensees), will not be considered in connection with their applications for renewal of license; conduct subsequent to that date will receive consideration, in specific rulings where appropriate or at license renewal time.
I. PETITIONERS' ARGUMENTS ON THE MERITS
7. The principal contentions presented on the merits of the ruling are: (a) That the Fairness Doctrine is itself violative of the first and fifth amendments to the U.S. Constitution and hence cannot properly serve as a basis for delineating licensee responsibilities under the Communications Act; (b) that the Fairness Doctrine, even if constitutional, applies only to programming in the nature of news, commentary on public issues, or editorial opinion, and does not extend to advertising; (c) that the Commission is precluded from applying the Fairness Doctrine to cigarette advertising because Congress has preempted the field and the Commission's ruling is contrary to congressional policy; (d) that even if the Fairness Doctrine properly applies to cigarette advertising, the Commission has invalidly made a blanket ruling that any cigarette advertisement per se presents a controversial issue of [*924] public importance, whereas no controversial issue of public importance can be presented where a lawful business is advertising a lawful product and, in the absence of any health claim in the commercial or affirmative discussion of the health issue, there is no viewpoint to oppose; (e) that the requirement that a significant amount of time be allocated each week to cover the viewpoint of the health hazard posed by smoking and the suggestion that a licensee might, inter alia, present a number of public service announcements of the American Cancer Society or the Department of Health, Education, and Welfare, will cause a debasement of the Fairness Doctrine generally and substitute Commission fiat for licensee judgment; (f) that the ruling cannot logically be limited to cigarette advertising alone; (g) that the ruling will have an adverse financial effect upon broadcast licensees by causing the cigarette industry to turn to other advertising media and will also have an adverse effect on the sale of cigarettes; and (h) that the ruling is in any event procedurally invalid for failure to accord interested persons an opportunity to be heard prior to the issuance of a novel and unprecedented policy determination. We shall carefully examine each of these contentions below and set forth in full our reasons for concluding that they lack merit.
A. Constitutionality of Fairness Doctrine
8. Those parties claiming that the Fairness Doctrine is violative of the first and fifth amendments to the Constitution incorporate by reference their comments to this effect in docket No. 16574, In the Matter of Amendment of Part 73 of the Rules to Provide Procedures in the Event of a Personal Attack or Where a Station Editorializes as to Political Candidates. n3 By a memorandum opinion and order released on July 10, 1967 in that docket (FCC 67-795), the Commission rejected the contention as to the first amendment. For the reasons and authorities there set forth, we adhere to that determination here. n4 The fifth amendment challenge was also rejected in Red Lion Broadcasting Co. v. Federal Communications Commission, Case No. 19,938 (C.A.D.C., decided June 13, 1967), and we see no valid distinction in the circumstances of this matter. n5
n3 This contention is made by the NAB, the law firm of Pierson, Ball, & Dowd, and WGN Continental Broadcasting Co., et al. The petition for rulemaking filed by Smith & Pepper states that it does not address itself to the question of whether Red Lion Broadcasting Co. v. Federal Communications Commission, case No. 19,938 (C.A.D.C., June 13, 1967), is good law.
n4 Since advertising, although not wholly beyond the first amendment, enjoys less protection than other speech (see Murdock v. Pennsylvania, 319 U.S. 105, 110-111; Valentine v. Chrestenson, 316 U.S. 52, 54; Martin v. Struthers, 319 U.S. 141, 142, note 1; Beard v. Alexandria, 341 U.S. 622, 641-643), the Commission's power to regulate advertising by radio may, indeed, be broader than it is with respect to programming. See Head v. Board of Examiners, 374 U.S. 424, 430-431, 437-441 (advertising), and cf. Farmers Union v. WDAY, 360 U.S. 525, 529-530 (political broadcasts): Henry v. Federal Communications Commission, 302 F. 2d 191, 194 (C.A.D.C.), certiorari denied, 371 U.S. 821 (entertainment).
n5 Insofar as it is asserted that due process has not been accorded, we believe that our extensive consideration of the pleadings filed since the ruling meets the requirements of due process in view of the nature of the issue and the arguments relating thereto (see pars. 55-58, infra). The conduct of licensees prior to the publication of this memorandum opinion and order will not be considered adversely when the question of renewal of license arises.
[*925] B. Scope of Fairness Doctrine
9. In contending that the Fairness Doctrine does not apply to advertising, the parties argue that the doctrine had its genesis in the 1949 Report of the Commission in the Matter of Editorializing by Broadcast Licensees, 13 FCC 1246, which was meant to apply only to dissemination of news, commentary on public issues, and editorial opinion because it contains no reference to advertising. It is further urged that no mention of advertising was made in the 1964 Fairness Primer, 29 F.r./ 10415, and that the Commission has never interpreted the doctrine as applying to advertising. In addition, it is asserted that Congress, in giving specific approval to the Fairness Doctrine as a basic delineation of a standard of public interest in broadcasting in the 1959 amendment of section 315(a) of the Communications Act, 73 Stat. 557, 47 U.S.C. 315(a), limited the scope of the doctrine to programming of that nature since it did not amend section 317 of the act to incorporate a similar provision. It follows, the parties state, that the present ruling is an unprecedented extension of the Fairness Doctrine which is beyond the Commission's discretion or statutory authority.
10. 10. We do not find these arguments persuasive. The Fairness Doctrine has its foundation in the obligation imposed on licensees by the Communications Act to operate in the public interest (see discussion, infra, par. 64), which includes the "basic policy of the 'standard of fairness'" and the "broad encompassing duty of providing a fair cross section of opinion in the station's coverage of public affairs and matters of public controversy." (H. Rept. No. 1069, 86th Cong., first sess., p. 5; S. Rept. No. 562, 86th Cong., first sess., p. 13; section 315 (a); 1949 Report on Editorializing, 13 FCC 1246, 1248-1249.) That "one of the basic elements of any such operation" (13 FCC at 1248) is a recognition by the licensee of "the right of the public to be informed" (13 FCC at 1249), as to "opposing positions on the public issues of interest and importance in the community" (13 FCC at 1258), when the licensee is presenting programming in the nature of news, commentary on public issues, or editorial opinion, does not mean that the licensee is relieved of his statutory responsibility for advertising broadcast over his facilities or his overall duty to operate in the public interest and to make a fair presentation of controversial issues of public importance in whatever context they may arise. (Section 315 (a), 1949 Report on Editorializing, 13 FCC at 1257-1258.) Moreover, the circumstance that Congress specifically incorporated in the Fairness Doctrine into the 1959 amendment to section 315 to make it "crystal clear" that the programming exemptions from the equal time requirement of that section did not exempt licensees "from objective presentation thereof in the public interest" does "not diminish or affect in any way Federal Communications Commission policy or existing law which holds that a licensee's statutory obligation to serve the public interest is to include the broad encompassing duty of providing a fair cross section of opinion in the station's coverage of public affairs and matters of public controversy." (S. Rept. No. 562, 86th Cong., [*926] First sess., p. 13; 105 Cong. Rec. 14439.) n6 Most important, the amendment refers to the obligation imposed upon broadcast licensees "* * * under this act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance" (emphasis supplied).
n6 Given the background to the 1959 amendments (see Red Lion Broadcasting Company v. Federal Communications Commission, supra), we are unable to see any significance in the fact that Congress did not also amend sec. 317 to incorporate the Fairness Doctrine expressly. In any event, as stated, the absence of a specific reference to the Fairness Doctrine in sec. 317 does not show a lack of Commission authority under the general provisions of the act.
11. The Commission's present ruling that advertising falls within the public interest responsibilities of a licensee is not a novel or unprecedented policy determination. See concurring opinion of Mr. Justice Brennan in Head v. Board of Examiners, 374 U.S. 424, 437-441. This opinion sets out in detail the administrative and other pertinent history establishing the pattern of Commission regulation in this area. (See par. 13, infra.)
12. The Commission has always directed itself particularly to programming and advertising which bears upon public health and safety. The Federal Radio Commission denied a renewal of license to a station which broadcast a "medical question box" devoted to diagnosing and prescribing treatment of illnesses from symptoms given in letters from listeners, and which received a rebate on each prescription sold. KFKB Broadcasting Association v. Federal Radio Commission, 47 F. 2d 670, 671 (C.A.D.C.). The Radio Commission held, with judicial approval, that "the practice of a physician's prescribing treatment for a patient whom he has never seen, and bases his diagnosis upon what symptoms may be recited by the patient in a letter addressed to him, is inimical to the public health and safety, and for that reason is not in the public interest." (Id., at 671-672.) The Communications Commission has similarly condemned advertising of alleged medical prescriptions and quack remedies which were deemed inimical to health, and granted renewal only upon assurances that such broadcasting would be discontinued. Farmers and Bankers Life Insurance Co., 2 FCC 455, 457-459. The Commission stated that "[a] broadcast station carrying such programs should be held to a high degree of responsibility, affecting as they may the health and welfare of the listeners, and careful investigation of such products, and of the claims made therefor, should be made before they are advertised over a broadcast station." (2 FCC at 458.) See also WSBC, Inc., 2 FCC 293, 294-296, and Oak Leaves Broadcasting Station, Inc., 2 FCC 298 (both involving advertising of quack medicines by one not licensed to practice medicine). The Commission has also applied the Fairness Doctrine to products such as Krebiozen and to the health issues involved in Carlton Fredericks program, "Living Should be Fun." (See 33 Fcc/ 101, 107 (1962).) n7
13. Mr. Justice Brennan, in his concurring opinion in the Head case, 374 U.S. at 439, noted that --
n7 As further administrative background in this area, see In re petition of Sam Morris, 11 FCC 197 (1946), where the Commission indicated the applicability of the Fairness Doctrine to advertising in certain situations.
* * * As early as 1928, for example, the General Counsel of the Radio Commission held that abuses in network cigarette advertising -- while not a [*927] sufficient basis for revocation proceedings against an individual licensee -- might on renewal militate against the requisite finding of broadcasting in the "public interest."
The opinion also notes (note 15) that --
Shortly after the issuance of the General Counsel's opinion, the Chairman of the Federal Radio Commission was asked by Senator Dill during his appearance before the Senate Commerce Committee whether he thought the Commission had sufficient power "through its power of regulation and its determination of public interest to handle objectionable advertising?" The Chairman replied, "I think so, Senator Dill, because we have had little trouble about it, even without direct power. * * *." (Hearings before Senate Committee on Interstate Commerce on S. 6, 71st Cong., First sess., pt. 6, p. 230.)
See also Hearings before Senate Committee on Interstate Commerce on S. 6, 71st Congress, First and Second sessions, pages 88-89. The particular complaint leading to the General Counsel's opinion charged, inter alia, that "the object of this broadcasting is to transform 20,000,000 adolescent boys and girls into confirmed cigarette addicts by creating a vast child market for cigarettes in the United States," that "10,000,000 boys throughout the country are being viciously and deliberately misled by paid testimonials, secured from professional athletes, football coaches, and others, definitely suggesting the use of cigarettes as an aid to physical prowess," that "the medical opinion of the country is being continuously misrepresented to support the health and medical claims made for cigarettes," that the specific claims made for a particular brand of cigarette advertised on the air are overwhelmingly opposed by established health and medical facts," and that "Such radio activities, the petitioner maintains, are clearly contrary to public interest, public welfare, and public health." (Opinion No. 32, 1928-1929 Opinions of the General Counsel, Federal Radio Commission, 77, at 78 (Apr. 15, 1929).) General Counsel Bethuel M. Webster, Jr., concluded that the "Commission may find, in view of this showing, that public interest, convenience, and necessity will not be served by further renewal of the licenses in question, in which case the matter will be set for hearing pursuant to section 11, and petitioner's prayer for general relief will be granted." (Id., at 82.)
14. In short, we believe that the licensee's statutory lbligation to operate in the public interest includes the duty to make a fair presentation of opposing viewpoints on the controversial issue of public importance posed by cigarette advertising (i.e., the desirability of smoking), that this duty extends to cigarette advertising which encourages the public to use a product that is habit forming and, as found by the Congress and governmental reports, may in normal use be hazardous to health, and that the licensee's compliance with this duty may be examined at license renewal time (see 1960 Programming Policy Statement, 20 Pike & Fischer, Radio Regulation 1901, 1912-1913). It is our belief that the public interest standard and Fairness Doctrine embodied this principle from their inception. In any event, even assuming the contrary, we think that the Commission clearly has the statutory authority to make this public interest ruling and to extend the Fairness Doctrine to cigarette advertising at this time. While the agency's position as to what the obligation to operate in the public interest [*928] requires for cigarette advertising may have fluctuated over the years since 1929, the exercise of such authority in the present circumstances is plainly reasonable. Considering the 1964 Report of the Surgeon General's Advisory Committee, the establishment of the National Interagency Council on Smoking and Health and the enactment of Cigarette Labeling and Advertising Act (Public Law 89-92, 15 U.S.C. 1331 et seq.) in 1965, and the recent Reports to Congress by the Federal Trade Commission and the Department of Health, Education, and Welfare pursuant to that act, it is not an abuse of discretion for the Commission to decide now that a licensee who presents programming and advertising which encourages the public to form this habit potentially hazardous to health has, at the very least, an obligation adequately to inform the public as to the possible hazard. n8 (See infra, pars. 30-32.) Nothing that is presented in the extensive pleadings filed in this matter convinces us that petitioners should prevail on their position to the contrary.
n8 It has long been recognized, of course, that "the Commission's view of what is best in the public interest may change from time to time. Commissions themselves change, underlying philosophies differ, and experience often dictates changes." Pinellas Broadcasting Co. v. Federal Communications Commission, 230 F. 2d 204, 206 (C.A.D.C.), certiorari denied, 350 U.S. 1007.
C. Compatibility With the Cigarette Labeling Act
15. Petitioners further urge that Congress in the Cigarette Labeling and Advertising Act of 1965 (Public Law 89-92, 15 U.S.C. 1331 et seq.), preempted Federal, State, and local activity to compel health warnings in cigarette advertising, and that the Commission's ruling is not only inconsistent with that policy but lies also in an area where Congress has withdrawn authority. On the basis of our analysis of the provisions of the Labeling Act and its legislative history, we agree that no Federal or State body could legally adopt regulatory measures which would require either a cessation of cigarette advertising or the inclusion of health warning in the advertisement itself. We nevertheless believe, for the reasons set forth below, that our ruling that broadcast licensees presenting cigarette advertising must otherwise inform the public as to the potential health hazard, is not precluded by the Labeling Act and is entirely consistent with the congressional decision to promote extensive smoking education campaigns.
16. The Cigarette Labeling Act states that:
It is the policy of the Congress, and the purpose of this Act, to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby --
(1) the public may be adequately informed that cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package of cigarettes; and
(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.
The act thus requires the labeling of cigarette packages with the
statement: "Caution: Cigarette Smoking may be Hazardous to Your
[*929] Health." The act also does the following: (1) Makes it
unlawful for any person to manufacture, import, or package for sale within the
United States any cigarettes which do not bear the above-mentioned statement on
the package. Violation of this requirement is made a misdemeanor subject
to a fine of not more than $10,000 (secs. 4, 6); (2) prohibits the requirement
of any other cautionary statement on the labeling of cigarettes under laws
administered by any Federal, State, or local authority (sec. 5(a)), and
prohibits, for 3 years, any requirement by any Federal, State, or local
authority that cigarette advertising include a statement relating to smoking
and health (sec. 5(b)); (3) states that the Federal Trade Commission has no
authority to require any cautionary statement in any advertisement of
cigarettes labeled in conformity with the act, but otherwise neither limits nor
expands the authority of the FTC with respect to the dissemination of false or
misleading advertisements of cigarettes (sec. 5(c)); (4) permits injunctions to
be obtained to restrain violations of the act, and provides an exemption for
cigarettes manufactured for export from the United States (secs. 7 and 8); and
(5) requires two Federal agencies to transmit reports to Congress before July
1, 1967, and annually thereafter: (a) the Secretary of Health, Education, and
Welfare concerning current information on the health consequences of smoking
and recommendations for legislation and (b) the Federal Trade Commission
concerning the effectiveness of cigarette advertising, current practices and
methods of cigarette advertising and promotion, and recommendations for
16a. Section 5 -- the portion preempting Federal, State, and local activity to compel health warnings in cigarette labeling and advertising -- provides in subsection (b):
No statement relating to smoking and health shall be required in the advertising of any cigarette the packages of which are labeled in conformity with the provisions of this Act.
It is clear from the wording of this section that neither the FCC nor the FTC could require cigarette advertisements to contain statements of health warnings. However, this does not mean that the FCC or the FTC cannot regulate in other respects concerning smoking and health. The section does not read, as petitioners would have it, that no statement by others interested in informing the public of the potential hazard from smoking may be required "because of the advertising of any cigarette" -- i.e., not in or adjacent to the advertising but at some other time period, by others or the licensee, because the advertising has presented but one face of this important issue to the public. Moreover, although the Senate debate on the Labeling Act is not wholly clear in this respect, n9 the House debate indicates that the FTC is still free to regulate with respect to misleading or deceptive advertising concerning smoking and health under Section 5 of the Federal Trade Commission Act. n10 For example, if an advertisement said that cigarette smoking was not a health hazard, the FTC could act to prevent such advertising. The chairman of the House Commerce Committee [*930] explained that the Labeling Act did not purport to change the present authority of the FTC, only to limit that authority with respect to compulsory inclusion of statements concerning smoking and health in cigarette labels and advertising n11 (see sec. 5(c) of the act). The FCC's regulatory authority was not discussed in the committee reports on the proposed legislation or in the legislative debates. Nevertheless, the background and legislative history of the Labeling Act furnish some basis for judging what impact, if any, that act has on the FCC's authority in this field, particularly under the Fairness Doctrine.
n9 111 Cong. Rec. 15597-15598 (1965).
n10 111 Cong. Rec. 16541-16544 (1965).
n11 Remarks of Chairman Harris, 111 Cong. Rec., p. 16544 (1965).
17. The pertinent background to the 1965 act is set out in appendix A. We turn here to the relevant legislative history. Prior to 1964, a number of bills had been introduced without enactment by Congress in an effort to compel cigarette manufacturers to acquaint the public in various fashions with the health hazards of smoking. With the Advisory Committee's report as a catalyst, many bills were introduced during the second session of the 88th Congress embodying several approaches to acquaint the public with the hazards of smoking: (1) To require that cigarettes sold in interstate commerce be labeled with a health warning, and/or with a disclosure of nicotine and tar content (H.R. 4168; H.R. 7476; H.R. 9693); (2) to confer on the FTC the power and duty to regulate advertising and labeling of cigarettes (H.R. 9655; H.R. 9657; H.R. 9808; S. 2429); (3) to amend the Federal Food, Drug, and Cosmetic Act so as to make that act applicable to smoking (H.R. 5973; H.R. 9512); (4) to provide for informational and educational campaigns by HEW to acquaint the public with the health hazards involved in the use of cigarettes and to provide for continued research in this field (H.R. 9668; S. 2430); and (5) to enjoin all Government agencies, etc., from taking any action or pursuing any policy which encourages or promotes the public to buy or use cigarettes (S. 2430).
18. As a result of the submission of these bills, Chairman Harris conducted hearings from June 23, 1964 through July 1, 1964, before the House Commerce Committee concerning possible action by Congress. The purposes of the hearings were to review the scientific evidence of the causal link between smoking and cancer and, if Federal action was found to be required in the interest of public health, to determine what approach would be most desirable. Chairman Harris commented later that the closing days of that session of Congress had not permitted sufficient time for further hearings and for the preparation and consideration of carefully drawn legislation in this field. These hearings before the House Commerce Committee were the only hearings conducted on the subject of cigarette labeling and advertising by either side of Congress during the second session of the 88th Congress.
19. Legislative activity resumed in the first session of the 89th Congress with consideration of bills taking three basic approaches to the smoking health hazard problem: (1) To amend the Federal Food, [*931] Drug, and Cosmetic Act to regulate smoking products (H.R. 2248); (2) to provide for a health warning and/or nicotine and tar content on the label of cigarette packages (S. 559; H.R. 3014; H.R. 4007; H.R. 7051; H.R. 4244); and (3) to give the FTC the power and duty to regulate advertising and labeling of cigarettes (S. 547). both the Senate and the House Commerce Committees undertook hearings to determine the state of the medical evidence for and against the causal link between smoking and disease and to determine what Federal action, if any, should be required in the public interest. With regard to these questions, the Senate Committee concluded [**28] (S. Rept. No. 195, 89th Cong., First sess., p. 3):
While there remain a substantial number of individual physicians and scientists -- the Commerce Committee received testimony from 39 of them -- who do not believe that it has been demonstrated scientifically that smoking causes lung cancer or other diseases, no prominent medical or scientific body undertaking a systematic review of the evidence has reached conclusions opposed to those of the Surgeon General's Advisory Committee.
The Commerce Committee, therefore, concurs in the judgment that
"appropriate remedial action" is warranted.
The House Committee was unwilling to conclude for or against the medical opinions embodied in the Advisory Committee's report or the medical evidence elicited by its own hearings. However, it did conclude that congressional action should be taken with regard to the relationship of smoking and health (H. Rept. No. 449, 89th Cong., first sess., p. 3).
20. As petitioners point out, Congress in enacting the Cigarette Labeling Act was concerned about possible economic impact on the tobacco and broadcasting industries, as well as the potential health hazard to the public. The House Report states (id., at p. 3):
The determination of appropriate remedial action in this area, as recommended by the Surgeon General's Advisory Committee, is a responsibility which should be exercised by Congress after considering all the facets of the problem. The problem has broad implications in the field of public health and health research, and involves potentially far-reaching consequences for a number of sectors of our economy. The entire tobacco raising and manufacturing industry, and the numerous businesses which market tobacco products are involved. Some proposals have been made in this area which might lead to severe curtailing or the possible elimination of cigarette advertising. This could have a serious economic impact on the television, radio, and publishing industries in the United States.
21. The compromise evolved by Congress was to require a health warning in labeling, but not in advertising, for an interim period pending a further congressional determination as to whether extensive smoking education campaigns and industry self-discipline would render such a drastic step unnecessary. The Senate Report states (S. Rept. No. 195,89th Cong., first sess., p. 5):
Considering the combined impact of voluntary limitations on advertising under the cigarette advertising code, the extensive smoking education campaigns now underway, and the compulsory warning on the package, which will be required under the provisions of this bill, it was the committee's unanimous judgment that no warning in cigarette advertising should be required pending the showing that these vigorous, but less drastic, steps have not adequately alerted the public to the potential hazard from smoking.
[*932] The House Report similarly states that the cigarette advertising code and the educational and informational programs of HEW in combination with the Labeling Act made it unnecessary to insert health warnings in cigarette advertising as proposed by the FTC (H. Rept. No. 449, 89th Cong., first sess., pp. 4, 5). The Labeling Act provides that the provisions which affect the regulation of advertising shall terminate on July 1, 1969 (sec. 10). The reason for specifying this termination date was the expectation of Congress that before that date, on the basis of all available information, including that contained in the reports to be submitted by HEW and FTC, it would reexamine the subject matter of the Labeling Act.
22. In the light of the foregoing, it is our view that section 5 of the Labeling Act was meant to preclude any requirement of a health warning in the advertising itself, as proposed by the FTC rule (see par. 7, app. A), but there was no legislative intent otherwise to foreclose the use of radio, along with other educational media, as an effective means of informing the public to the potential hazard of smoking. The Fairness Doctrine has its reason for being in (1949 Report on Editorializing, 13 FCC at 1249):
* * * the paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning these vital and often controversial issues which are held by the various groups which make up the community. It is this right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter, which is the foundation stone of the American System of broadcasting. [Footnote omitted.]
We also cannot believe that Congress would have overturned so basic a tenet of communications law and policy in this area or that it would have withdrawn so fundamental a responsibility of the Commission without some express indication and explanation (See par. 30, infra). On the contrary we believe that for reasons developed below, our action is entirely consistent with the "comprehensive Federal program * * *" (sec. 2, Cigarette Labeling Act), since it will promote the "extensive education campaigns," which Congress noted and relied upon in reaching the policy judgment embodied in the act (see par. 21, supra).
23. As stated our ruling accords with and is tailored to the legislative policy embodied in the Labeling Act. In the first place, the ruling does not require a health warning in or adjacent to cigarette advertising -- a matter coming within section 5(b) of the "preemption" portion of the act. Rather it leaves to the good faith, reasonable judgment of the licensee -- upon the facts of his situation -- the matters of the type of programming, the nature of the time to be afforded for the opposing viewpoint, and the amount of time to be allocated on a regular basis.
24. Second, our ruling does not preclude or curtail presentation by stations of cigarette advertising which they choose to carry (see also, pars. 48-54, infra). We rejected Mr. Banzhaf's claim that the time afforded for the opposing viewpoint should "roughly approximate" that devoted to cigarette advertising, not only because the Fairness [*933] Doctrine does not require "equal time" but also in the belief that this would be inconsistent with the congressional direction in this field provided in the Labeling Act. For, we recognized that the "practical result of any roughly one-to-one correlation would probably be either the elimination or substantial curtailment of broadcast cigarette advertising." We stressed that our action would be tailored so as to carry out the congressional purpose, and we shall of course adhere to that guideline in implementation of the ruling.
25. Most important, we think that our ruling implements the smoking education campaigns referred to as a basis for congressional action in the Labeling Act (supra, par. 21). Congress itself has affirmatively promoted such educational efforts by appropriating $2 million for use by HEW in this direction. Public Law 89-156, Title II, Public Health Services, Chronic Diseases and Health of the Aged. As a consequence, HEW has established the National Clearinghouse for Smoking and Health. Its purposes are to collect, organize, and disseminate information on smoking and health, to provide encouragement and support for State and local educational activities, and to conduct research into the behavioral nature of the smoking habit. The Public Health Service and others have acted to inform the public on smoking and health directly by sending lecturers across the United States to address local groups, distributing printed information to the public, and furnishing the broadcast media with spot announcements on smoking and health. The Public Health Service reported in January 1967 that it has distributed spot announcements to over 900 radio stations and is at present approaching individual television stations to obtain further coverage for its messages. The American Cancer Society reports that it has received favorable responses from all the networks and many independent stations concerning the promotion of its spots on smoking and health.
26. The Public Health Service has also worked through local organizations to warn the public of the health hazards of smoking. It is in direct contact with a number of regional, State, or local interagency advisory committees on smoking and health, which have worked to stimulate community interest in 35 States. As a result of this stimulus and others, the medical societies of at least 18 States have made statements linking cigarette smoking with lung cancer and other health hazards and, in some cases, have undertaken organized activity to publicize the relationship of smoking and health. For example, the California Medical Association has recently undertaken a program urging individual doctors to acquaint their patients with the health hazards of smoking. Local and statewide civic groups have also started public education efforts.
27. The Public Health Service and the U.S. Children's Bureau have directed a special education campaign aimed at school-age children. To date, school programs on smoking and health reach about 70 percent of the schoolchildren in the United States. Forty States have developed materials on smoking and health for children or plan to do so, and 27 States have either held conferences on smoking and health or intend to do so. In September 1966, a nationwide program to discourage smoking among seventh and eighth graders was launched [*934] by the National Congress of Parents and Teachers. This plan is being supported by the Public Health Service and is operating in 21 States.
28. The affected industries have renewed their efforts at self-regulation since the enactment of the Labeling Act. While there has been no change in the Cigarette Advertising Code of the cigarette manufacturers, they have sought and obtained FTC approval to make factual advertising statements about tar and nicotine content. On March 25, 1966, the FTC determined that a factual statement of the tar and nicotine content of the mainstream smoke from a cigarette would not be in violation of that Commission's 1955 cigarette advertising guides or of any provision of the law administered by the Commission. However, no collateral statements (other than the factual statement of tar and nicotine content of cigarettes) suggesting the reduction or elimination of health hazards in smoking are allowed, and all these factual statements must be based upon a standardized testing technique. n12
n12 New York Times, Mar. 29, 1966, 53:6.
29. In October 1966 the code authority for the NAB issued the Cigarette Advertising Guidelines which they had announced during the 1965 Senate hearings would be forthcoming. n13 The main objectives of the guidelines are to restrict advertising appeals to youth and statements concerning the health benefits of smoking. In January 1967, the Code Authority announced in a news release a slight change in the Television Code to strengthen its position as to appeals to youth. The Television Code, sec. IX, General Advertising Standards, par. 7, now reads:
n13 Text of the "New Cigarette Advertising Guidelines":
Athletic activity. -- A person who is or has been a prominent athlete shall not be used in a cigarette commercial. Cigarette Commercials shall not depict persons participating in, or appearing to be participants in, sports or athletic activity requiring physical exertion.
Tar and nicotine statements. -- Factual statements of tar and nicotine content of cigarettes are subject to proper documentation. No statements or claims regarding benefits to health and well-being are acceptable.
Filters, -- Cigarette advertising shall not state that because of the presence of the filter or its construction the cigarette is beneficial to the health or well-being of the smoker.
Uniformed individuals. -- Individuals in certain types of uniforms have a special appeal to youth. Therefore, such uniformed individuals as commercial pilots, firemen, the military and police officers shall not be used in cigarette advertising.
Premiums. -- Cigarette advertising shall not include references to offers of premiums which are primarily designed for youth.
Portrayal of youth. -- Children or youth shall not appear in cigarette commercials in any manner, even though they are merely bystanders or part of the background. Cigarette advertising shall use individuals who both are and appear to be adults and who are shown in settings associated with adults.
The advertising of cigarettes shall not state or imply claims regarding health and shall not be presented in such a manner as to indicate to youth that the use of cigarettes contributes to individual achievement, personal acceptance or is a habit worthy of imitation.
30. Considering these affirmative efforts by Congress, Federal, State, and local public and private agencies, and the affected industries to educate the public as to the smoking health hazard and, particularly, to discourage youth from forming the habit, we are not persuaded by petitioners' argument that HEW and FTC have primary jurisdiction in this matter and that this Commission alone is precluded from following its traditional method of assuring that the public is adequately informed as to both sides of this controversial issue of public importance. Significantly, Congress was at pains to spell out what [*935] was preempted (sec. 5 (a) and (b)) and specifically stated that except as is otherwise provided in subsections (a) and (b), "nothing in this Act shall be construed to limit, restrict, expand, or otherwise affect, the authority of the Federal Trade Commission with respect to unfair or deceptive acts or practices in the advertising of cigarettes * * *." Similarly, we believe that there was no preclusion of FCC action, so long as such action is consonant with the "comprehensive Federal program * * *" (sec. 2). As set forth in the prior discussion, we think that our responsibilities and policies under the Communications Act and our ruling herein are entirely consonant with the congressional objectives in this area. Indeed, it is our belief that the Commission could not properly follow any other course in this matter. For this Commission, like other administrative agencies, was "not commissioned to effectuate the policies" of the Communications Act "so single-mindedly that it may wholly ignore other and equally important congressional objectives. Frequently the entire scope of congressional purpose calls for careful accommodation of one statutory scheme to another and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task." Southern S.S. Co. v. Labor Board, 316 U.S. 31, 47.
31. One further contention of petitioners on this aspect warrants discussion. It is asserted that we are precluded from issuing our ruling because the Commission declined to make any recommendation to Congress in connection with the Labeling Act legislation on the ground that it had not yet studied the matter, and because the Commission still has not conducted and study or proceeding on the smoking hazard issue. The circumstances giving rise to the contention are as follows: Prior to the issuance of the Advisory Committee Report, the Commission stated in a "by direction" letter, concerning possible rulemaking with regard to advertising, promoting or encouraging cigarette smoking among young people, that action would be inappropriate before the Advisory Committee's report was available and (letter to Senator Magnuson, FCC 63-1033):
The Commission's concern is limited, of course, to advertising in the broadcast field. Other agencies may have authority to take comprehensive and effective action, if necessary or appropriate. It is, we think, obviously more desirable to treat such an important matter, if possible, on a broad, across-the-board basis rather than in piecemeal fashion.
When the Advisory Committee's Report was issued and the FTC had announced its rulemaking proceeding concerning cigarette labeling and advertising (see app. A), the Commission on January 1964 initiated plans to coordinate its efforts with the comprehensive regulation which the FTC had proposed and with activities of other interested agencies. FCC letter to FTC Chairman Dixon, FCC 64-29 (Jan. 15, 1964). On February 7, 1964, in "by direction" letters to Congressman Leonard Farbstein (FCC 64-100) and his constituent, Mr. Sidney Katz (FCC 64-99), then Chairman Henry answered a request to institute rulemaking proceedings to ban cigarette advertising by reiterating the policy statement quoted above and noting that the Commission would await the results of the FTC rulemaking proceeding before [*936] acting in this area. When asked to comment on S. 2429, 88th Congress, and S. 547 and S. 559, 89th Congress, the Commission reiterated its policy that it favored "across-the-board treatment of the matter of regulating cigarette advertising and that since the FTC had undertaken a comprehensive remedial regulatory plan, the FCC had not held proceedings or undertaken studies to evaluate the various factors and considerations in this area. Comments on S. 2429, 88th Congress, FCC 64-730; Comments on S. 559 and S. 547, FCC 65-96.
32. We do not believe that these facts preclude us, as a matter of law or of policy, from issuing our ruling in the present circumstances. First, as shown above, circumstances have changed. The FTC, while proceeding in other respects consistent with the 1965 act, is not, of course, undertaking its comprehensive regulatory plan to require a health hazard announcement to accompany each cigarette commercial. Second, as also shown above, our ruling is consistent with and particularly suited to promoting the "across-the-board" objective of Congress to treat this matter through extensive campaigns to educate the public as to the hazards of smoking. Third, we did not defer to the FTC as a matter of legal authority but rather of policy. The Commission is not precluded from changing its policies so long as any new policy adopted is, like our ruling, reasonable in the circumstances. See supra, par. 14 and footnote 8. And, finally, studies by this Commission are clearly not required to evaluate the various factors and public interest considerations posed by the issue of smoking and health, particularly since Congress declared and pursued its policy of promoting smoking education campaigns. In this cocnnection, see also the discussion below (pars. 33-34 and 60-62).
33. On July 12, 1967, HEW submitted its report to Congress, which includes the Surgeon General's "Report on Current Information on the Health Consequences of Smoking." Upon the basis of more than 2000 research studies that have been completed and reported in the biomedical literature throughout the world in the intervening 3 1/2 years since the Advisory Committee's report, the Surgeon General states that there is no evidence calling into question the conclusions of the 1964 report and, on the contrary, the research studies published since 1964 have strengthened those conclusions. The Surgeon General summarizes the present state of knowledge of these health consequences, in the judgment of the Public Health Service, as follows (Surgeon General's Report on the Health Consequences of Smoking -- 1967, p. 2):
1. Cigarette smokers have substantially higher death rates and disability than their nonsmoking counterparts in the population. This means that cigarette smokers tend to die at earlier ages and experience more days of disability than comparable nonsmokers.
2. A substantial portion of earlier deaths and excess disability would not have occurred if those affected had never smoked.
3. If it were not for cigarette smoking, practically none of the earlier deaths from lung cancer would have occurred; nor a substantial portion of the earlier deaths from chronic bronchopulmonary diseases (commonly diagnosed as chronic bronchitis or pulmonary emphysema or both); nor a portion of the earlier deaths of cardiovascular origin. Excess disability from chronic pulmonary and cardiovascular diseases would also be less.
4. Cessation or appreciable reduction of cigarette smoking could delay or [*937] avert a substantial portion of deaths which occur from lung cancer, a substantial portion of the earlier deaths and excess disability from chronic bronchopulmonary diseases, and a portion of the earlier deaths and excess disability of cardiovascular origin.
In releasing the report, HEW Secretary John W. Gardner stated (HEW press release for July 13, 1967):
The relationship between smoking and health has obvious and serious implications for individuals who now smoke and for young people who may be thinking of starting to smoke. From the standpoint of public policy and social concern, this association constitutes one of the most critical health problems today.
It is perfectly obvious that if we are going to reduce the unnecessary death and illness now caused by cigarette smoking, three things must take place: There must be a reduction in the number of people who smoke, a number which now constitutes 42 percent of our population. We must do everything we can to encourage young people not to start smoking; at present, half of our young people are cigarette smokers by the time they are 18. And finally, we must work toward the development of a less hazardous cigarette and, concurrently, help develop a climate of opinion which will encourage acceptance if such a cigarette is developed.
34. The June 30, 1967, report of the FTC to Congress pursuant to the Labeling Act stressed the importance of educating teenagers before they start smoking since the use of cigarettes is so strongly habit forming (Report, p. 8). The FTC report states (p. 13) that whether intentional or fortuitous, teenagers appear to be a prime target for televised cigarette advertising and that the "average American teenager sees more cigarette commercials on network television than does the average American" (p. 25); "'87.9 percent of teenage boys' and '89.5 percent of teenage girls hear radio on the average day'" (p. 13). The report comments (p. 24):
In making a decision on whether to start smoking, youngsters especially have a right to know that once they start, they may never be able to stop. A viewer of cigarette commercials and advertisements would never hear of this aspect of smoking.
The concluding paragraph of the FTC report states (p. 29):
Cigarette commercials continue to appeal to
youth and continue to blot out any consciousness of the health hazards.
Cigarette advertisements continue to appear on programs watched and heard
repeatedly by million [sic] of teenagers. Today, teenagers are constantly
exposed to an endless barrage of subtle messages that cigarette smoking
increases popularity, makes one more masculine or attractive to the opposite
sex, enhances one's social poise, etc. To allow the American people, and
especially teenagers, the opportunity to make an informed and deliberate choice
of whether or not to start smoking, they must be freed from constant exposure
to such one-sided blandishments and told the whole story.
35. This Commission agrees. Considering all of the foregoing, we believe that our ruling is within our statutory authority and not preclude by the congressional policy embodied in the Labeling Act -- that rather it implements that policy. We also think it is imperative in the public interest that we exercise our discretion now without delay for further studies.
[*938] D. The Argument as to Blanket Ruling
36. Petitioners further contend that even if the Fairness Doctrine properly applies to cigarette advertising, the Commission has invalidly made a blanket ruling that any cigarette advertisement per se presents a controversial issue of public importance, whereas no controversial issue of public importance can be presented where a lawful business is advertising a lawful product and, in the absence of any health claim in the commercial or affirmative discussion of the health issue, there is no viewpoint to oppose. But this argument misconceives the nature of the controversial issue. Mr. Banzhaf's complaint was that the cigarette commercials over WCBS-TV presented the point of view that smoking is "socially acceptable and desirable, manly, and a necessary part of a rich full life." Our ruling points out that:
The advertisements in question clearly promote the use of the particular cigarette as attractive and enjoyable. Indeed, they understandably have no other purpose. But 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.
Petitioners point to no example of a cigarette commercial that does not portray the use of the particular cigarette as attractive and enjoyable as well as encourage people to smoke, and we find it difficult to conceive of one.
37. Further, we are unable to accept the argument that in the absence of any express health claim in the commercial or affirmative discussion of the health issue, there is no viewpoint to oppose. The June 30, 1967 FTC report amply documents its conclusion that cigarette commercials today still contain the two principal elements it found to exist in 1964 -- a portrayal of the desirability of smoking and assurances of the relative safety of smoking (pp. 15-16). The FTC states that desirability is portrayed in terms of the satisfactions engendered by smoking and by associating smoking with attractive people and enjoyable events and experiences, and that by so doing the impression is conveyed that smoking carries relatively little risk (ibid.). n14 The report supports this conclusion, more than adequately in our view, by a comprehensive review and analysis of the advertising submitted by a large number of cigarette companies and monitored by the Commission (FTC report, pp. 15-23). Numerous examples are given of the "satisfaction" theme (pp. 15-16) n15; the "associative" theme (pp. 16-17) n16; "appeals directed to vanity" (pp. 17-18) n17; subtle methods of "assuaging anxiety" about any health hazard (pp. 19-21) n18; the "loyalty" theme (pp. 15-16) n19; and the "bonus" theme, which [*939] includes promoting longer cigarettes at popular prices as well as coupon promotions (pp. 22-23). n20 We note also the FTC's comment n21 (Report, p. 18):
n14 The FTC report states (p. 17) that an estimated 58 percent of the public feel that current cigarette advertising leaves the impression that smoking is a healthy thing to do.
n15 The report states that portrayal of satisfaction, particularly oral satisfaction, continues to be an important element of cigarette advertising. Taste or flavor of cigarettes is most often described in terms of "mildness" (Tareyton filters, Montclair menthols, Camel regulars, Carlton filters, Lucky Strike filters, Pall Mall filters, and Chesterfield kings); "smoothness" (Tareyton filters, Pall Mall kings, Newport menthols, and Lucky Strike menthols); "real", "true", "rich" or "great" tobacco flavor or taste (Raleigh filters, Newport menthols, Viceroy filters, Salem menthols, and Philip Morris filters). Invariably, the taste of menthol cigarettes is either cool, fresh, and/or refreshing ("coolest flavor," Lucky Strike green; "forest-fresh taste * * * cooler tasting," Pall Mall; "as fresh as you like it," Philip Morris; "most refreshing coolness," Kool; "fresher," Newport; "fresh menthol flavor," Camel; "Springtime fresh" and "refreshes your taste," Salem; " a full, fresh taste," Chesterfield). The FTC comments (p. 16): "The impression forms that 'menthol taste' relieves smoking irritation, albeit 'smoking irritation' is never expressly stated."
n16 The report states (p. 16) that associating cigarette smoking with persons, activities, places and things likely to be admired, respected or emulated, i.e., endowing cigarette smoking with a positive associative image, continues unabated in current advertising. For example, outdoor activity of an athletic nature such as sailboating "suggests that the smoking depicted in the foreground, if not conducive to rousingly good health, is certainly not incompatible with it" (FTC Rept. p. 17). In addition, social events abound in which the viewer is brought into the "wholesome, jolly company of cigarette smokers" (ibid.). E.g., "singing aboard the old paddle wheel steamer (with Pall Mall kings); * * * picnicking (with Camel filters); and coffee klatching (with Winston filters)."
n17 The report gives as examples of appeals to vanity (pp. 17-18):
"Be discriminating: 'Particular about taste * * * I'm particular' (Pall Mall kings); 'They like the style of this cigarette' (Parliament filters). Be exclusive: * * * 'exclusive plastic pack' (Philip Morris filters and menthols); 'There's no other cigarette' (Lark filters). * * * 'the smokers who know' (Camel filters). Be a success: 'tastes rich, good, rewarding' (Viceroy filters); 'This man was born rich' (Camel filters). Be a social success: 'Come up to the taste of Kool' (Kool menthols); 'find something better' (Old Gold filters). Be independent: 'break away from the crowd * * * the cigarette for independent people' (Old Gold filters); 'stands out from the crowd' (Salem menthols). Associate with important people: 'Chairmen are never bored with them' (Benson & Hedges filters); the charter boat skipper who has 'got a good ship, a good crew and a good breeze' (Camel regulars)."
n18 The report states that as a result of extensive promotion during 1957-59, the belief appears to be widely held that filter cigarettes are less hazardous to health than regular cigarettes (p. 19). Comparatively overt attempts to allay health anxieties have been made by manufacturers of charcoal filter cigarettes by pictorial details of filters creating the impression that they prevent passage of tars and gaseous effusions (Tareyton, Lucky Strike, Tennyson, Cold Harbor, King Sano, Tempo, Duke, and Lark). Report, p. 20. Other "very low key" advertising enhances the impression of relative safety by adding suitable adjectives to the word "filter": "recessed filters" (Benson & Hedges and Parliaments), "white filters" (Yorks), "menthol filters" (Springs) and "filters with coconut shell charcoal" (Philip Morris). Ibid.
n19 See report (p. 22). Underlying these "loyalty" theme examples is, of course, the promise that the particular cigarette give great satisfaction (e.g., "Change to Winston and change for good").
n20 The report states (p. 23): "The purchase of Raleigh cigarettes has long been rewarded with coupons redeemable for goods. Today, Belair menthols, Old Gold filters, York filters, Spring menthols, and Domino filters also carry coupons redeemable for goods. Menthol and filter Chesterfields and Philip Morrises carry coupons redeemable for more cigarettes." The report also gives examples of 100-mm. cigarette advertising (Benson & Hedges, Lucky Strike, Winston, and Pall Mall), and states (ibid.): "With a definite relationship having been established between amount of cigarette smoking and incidence of lung cancer and other diseases, a fitting motto for the 100-mm. cigarette campaign might be 'extra health hazard at no extra cost'" (footnotes omitted).
n21 While we have, as petitioners points out, distinguished between explicit and implicit raising of controversial issues in broadcast material where health was not involved (e.g., atheists and agnostics versus the broadcast of religious services), we do not regard those cases as pertinent here in view of the nature of the controversial issue.
There is in all the array of positive images an element of escape from actuality. Some cigarette advertising transcends mere image association and projects its own separate and unique world. Examples include "Salem Country," a land in which romantic couples romp and preen through shifting, sylvan settings; the "Night People," whose post evening encounters can lead to smoking Parliament filters; and "Marlboro Country," where there daily unfolds the simple male heroic virtues of the "Old West." Worry over health has been vanished from these Shangri-las.
38. It comes down, we think, to a simple controversial issue: the cigarette commercials are conveying any number of reasons why it appears desirable to smoke but understandably do not set forth the reasons why it is not desirable to commence or continue smoking. It is the affirmative presentation of smoking as a desirable habit which constitutes the viewpoint others desire to oppose. We see no inequity in the circumstance that cigarette advertisers are precluded by various codes from making affirmative health claims in the advertising programming. n22 The Fairness Doctrine affords an avenue for presenting in regular program time the viewpoint of responsible spokesmen for [*940] the cigarette advertisers in rebuttal to any health hazard claims made in opposition to cigarette commercials. And, finally, we fail to see any merit in the argument that no controversial issue of public importance can be presented where a lawful business is advertising a lawful product. n23 While an unlawful business advertising an unlawful product over the air waves might well raise some controversial issue of public importance, we do not regard that element as essential. The claim that no controversial issue of public importance is presented by cigarette advertising is neither realistic nor persuasive.
n22 We recognize also (as set forth in par. 29 above and app. A) that the tobacco and broadcasting industries have endeavored in their codes to prescribe cigarette advertising standards aimed at reducing the appeal to youth. But the conclusions of the FTC report (par. 37 above) and the statistics and other matters set forth in pars. 33-34 and 60-61 would seem to indicate that the standards are either not being followed or are not effective in discouraging new teenage smoking. Moreover, it occurs to us that teenagers on the verge of adulthood may be more influenced by a portrayal of the attractiveness and desirability of adult conduct than by one connoting childhood or youthful behavior. As the FTC report notes (p. 8): "They tend to view cigarette smoking as a visible mark of maturity, a passport to addulthood. Because the health dangers of cigarette smoking are not brought home to them in an effective and meaningful way, many teenagers take up the smoking habit."
n23 NBC, in urging that licensees could reasonably and in good faith conclude that no controversial issue of public importance is presented by cigarette advertising, notes that the FTC advertising guides permit presentation of enjoyment since they state:
"Nothing contained in these guides is intended to prohibit the use of any representation, claim, or illustration relating solely to taste, flavor, aroma, or enjoyment."
Our ruling is consistent. It, too, does not in any way prohibit the presentation of enjoyment in cigarette commercials. It merely requires the licensee adequately to inform the public of the potential hazard, as found by Congress and Government reports, entailed in commencing or continuing this habit.
E. The Contention as to a Substitution of "Commission Fiat" for Licensee Judgment
39. Petitioners also argues that the ruling, by requiring that a significant amount of time be allocated each week to cover the viewpoint of the health hazard posed by cigarette smoking and by suggesting that a licensee might, among other things, present a number of public service announcements of the American Cancer Society or HEW, will cause a debasement of the Fairness Doctrine generally and a substitution of Commission fiat for licensee judgment. CBS in particular, noting that commercials are by nature repetitive and continuous, urges that treating all cigarette commercials as presentations of one side of a controversial issue will raise a question as to whether any one program or program series -- however enlightening and informative as to all points of view -- can constitute an adequate opportunity for response. Asserting that inevitably the licensee's only recourse will be a series of health hazard spot announcements, CBS states that broadcast treatment of cigarette health issues should not be reduced to a contest of opposing spot announcements, endlessly repeated long after any member of the public has understood and acted if he wished. It further asserts that such an approach makes no sense in the area of news and public affairs programming and that the net result of our ruling will be to convert licensee responsibility in such areas to presentations very similar to product advertising.
40. Like CBS, we recognize that the presentation of one side of a controversial issue of public importance in advertising programming poses a situation which differs from that usually pertaining to the presentation of controversial issues in news and public affairs programming. [*941] In the latter instance, the issue may arise only once, or a few times, or several times in a relatively short time period because of factors such as timeliness. But as CBS points out, commercials are by nature "repetitive and continuous;" the complaint here went to advertisements broadcast daily for a total of 5-10 minutes each broadcast day. We think that the frequency of the presentation of one side of the controversy is a factor appropriately to be considered in our administration of the Fairness Doctrine under the act's basic policy of the "standard of fairness" (supra, par. 10). For, while the Fairness Doctrine does not contemplate "equal time", if the presentation of one side of the issue is on a regular continual basis, fairness and the right of the public adequately to be informed compels the conclusion that there must be some regularity in the presentation of the other side of the issue. This consideration is not limited to advertising. For example, if one side of a controversial issue of public importance were regularly presented in a daily network program, compliance with the Fairness Doctrine would require something more than an occasional presentation of the other side of the issue during the course of the year.
41. Moreover, here the controversial issue posed is one of health hazard and the repeated and continuous broadcasts of the advertisement may be a contributing factor to the adoption of a habit which may lead to untimely death. In the circumstances, we think that the licensee is under a higher duty than in the case of other controversial issues to ameliorate the possible harmful effect of the broadcasts by sufficiently informing the public as to the hazard. As indicated in our ruling, and in light of the considerations set forth in paragraphs 33-34 and 60-61, we believe that the frequency of the presentation of the one side and the nature of the potential hazard to the public here necessitates presentation of the opposing viewpoint on a regular basis (e.g., each week).
42. We note that, contrary to CBS's position, the repetition of short communications has apparently been regarded by the broadcasting and advertising industries and other interested organizations as an effective means of reaching the listener or viewer. But in any event, there is nothing in our ruling which compels a licensee to treat the issue through presentation of spot messages. In our ruling we have stated: "A station might, for example, reasonably determine that the above noted responsibility wuld be discharged by presenting each week, in addition to appropriate news reports or other programming dealing with the subject, a number of the public service announcements of the Cancer Society or HEW in this field." This example does not on its face indicate that the opposing viewpoint should be presented solely or principally through spot announcements, and it was not intended as a "Commission fiat" as to the manner of compliance with the Fairness Doctrine. n24 We stressed in the ruling, and here strongly emphasize [*942] again, that "in this, as in other areas under the fairness doctrine, the type of programming and the amount and nature of time to be afforded is a matter for the good faith, reasonable judgment of the licensee, upon the particular facts of his situation." (See Cullman Broadcasting Co., FCC 63-849 (Sept. 18, 1963).)
n24 As set forth in par. 25, prior to our ruling the American Cancer Society received favorable responses from all the networks and many independent stations concerning the promotion of its spots on smoking and health. Moreover, the Public Health Service reported in January 1967 that it had distributed spot announcements to over 900 radio stations and was then approaching individual television stations to obtain further coverage for its messages. The example we gave merely took cognizance of the fact that such material is available to licensees if, in their judgment, its use would facilitate compliance with their obligations under the Fairness Doctrine. We thought it desirable to note its availability particularly for the small station with limited resources, which might have difficulty in preparing its own program material dealing with this issue.
43. In other words, we agree with CBS that the "question of whether a licensee is responsibly complying with the fairness doctrine cannot be resolved by per se guidelines, ratios or other rigid rules." A licensee which has just presented a very lengthy program on this issue obviously might reach a different judgment as to what his obligation was in this respect for the next week or so. But as stated, the carriage of the normally substantial amount of weekly commercials raises a concomitant responsibility to be met over relatively the same period of time. Further, in these circumstances, while a 1-to-1 ratio is ruled out by considerations of the legislative history of the Cigarette Labeling Act, the licensee's obligation is just as clearly not met by an occasional program a few times a year or by some appropriate announcements once or twice a week. We stress again that what is called for is the allocation of a significant amount of time each week, absent unusual circumstances, to the presentation of the opposing viewpoint in the case of cigarette commercials. We do not see why licensees, proceeding in good faith, should experience any real difficulty in reasonably discharging that responsibility nor why, in view of the nature of the issue -- the public's health, they would seek to fulfill that obligation in a niggardly fashion, designed to raise problems or complaints. In sum, we have not usurped licensee judgment as to the type of programming or the amount or nature of the time to be afforded, but rather have left these matters to the good faith and reasonable judgment of the licensee based on his evaluation of the facts of his particular case. n25
n25 It is also argued that the licensees may simply substitute cigarette health messages for other public service announcements now being carried. The duty of a station carrying cigarette commercials to inform the public as to the hazards of smoking stems directly from the fact that its facilities have been used to promote the use of this product found by the Congress and Governmental reports to be so potentially hazardous to health; its responsibility is therefore the same as in the case of any other fairness situation. It thus has a duty to present the other side, over and beyond what a licensee decides in other respects to present in order to serve the best interests of his area. We therefore do not believe that a licensee would or should adopt a pattern of operation which he does not adjudge to serve fully the needs and interests of his public.
F. Effect of the Ruling on the Advertising of Products Other Than Cigarettes
44. Petitioners further assert that the ruling cannot logically be limited to cigarette advertising alone, and hence will have broadscale effect on broadcast operations and the presentation of advertising by radio generally. They state that very little in society is uncontroversial and, since many products are subject to one form of controversy or other, an appeal to the Commission by a vocal minority is all that is needed to classify a subject as controversial and of public importance. They further claim that if governmental and private reports on the possible hazard of a product are a sufficient basis for the cigarette ruling, the ruling would apply to a host of other products, such as: automobiles, food with high cholesterol count, alcoholic beverages, fluoride [*943] in toothpaste, pesticide residue in food, aspirin, detergents, candy, gum, soft drinks, girdles, and even common table salt. We do not find this "parade of horribles" argument impressive.
45. We stressed in our ruling that it was "limited to this product -- cigarettes," stating further in this connection:
Governmental and private reports (e.g., the 1964 Report of the Surgeon General's Committee) and congressional action (e.g., the Federal Cigarette Labeling and Advertising Act of 1965), assert that the normal use of this product can be a hazard to the health of millions of persons. The advertisements in question clearly promote the use of a particular product 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.
Our ruling does not state, and was in no way meant to imply, that any appeal to the Commission by a vocal minority will suffice to classify advertising of a product as controversial and of public importance. Rather, the key factors here were twofold: (1) Governmental and private reports and congressional action with respect to cigarettes, and (2) their assertion in common that "normal use of this product can be a hazard to the health of millions of persons."
46. The products to which petitioners refer do not present a comparable situation. The example most uniformly cited is auto safety. But the governmental and private reports on this matter do not urge the public to refrain from normal use of automobiles in the interest of public safety; rather, the emphasis is on increased safety features in the manufacture of automobiles and increased care by drivers. Moreover, we know of no widespread contention by governmental or private authorities that the normal use of any of the other products cited by petitioners poses a serious health hazard to millions of persons who otherwise enjoy good health.
47. We adhere to our view that cigarette advertising presents a unique situation. As to whether there are other comparable products whose normal use has been found by congressional and other Government action to pose such a serious threat to general public health that advertising promoting such use would raise a substantial controversial issue of public importance, bringing into play the Fairness Doctrine, we can only state that we do not now know of such an advertised product, and that we do not find such circumstances present in petitioners' contentions about the advertised products upon which they rely. Thus, to say the least, instances of extension of the ruling to other products upon consideration of future complaints would be rare, if indeed they ever occurred. In short, our ruling applies only to cigarette advertising, and imposes no Fairness Doctrine obligation upon petitioners with respect to other product advertising.
G. The Claim as to Adverse Financial Impact Upon the Broadcasting and Tobacco Industries
48. Petitioners further assert that the ruling will seriously undermine the commercial structure of broadcasting, cause a substantial reduction in or the elimination of cigarette advertising to the severe [*944] detriment of these stations and their ability to serve the public interest, require a major change in the operation of broadcast stations by necessitating the acquisition and presentation of new program material and the keeping of additional records to document compliance with the Fairness Doctrine, limit the ability of cigarette manufacturers and advertisers to obtain advertising time on broadcast media, and adversely affect the sale of cigarettes, all of which will impose an unlawful burden on interstate commerce and conflict with the congressional intent underlying the Cigarette Labeling Act.
49. The Contention that our ruling will seriously undermine the commercial structure of broadcasting is pressed principally by the Association of National Advertisers, Inc., an association composed of leading manufacturers and service concerns that use advertising, seven of whom market cigarettes. Their concern appears to rest principally on the fear that the ruling will be extended to many other products which are subject to controversy in one form or another. However, as set forth in the proceeding section of this opinion (supra. pars. 44-47), we believe that this fear is groundless. The only real question here is the impact of our ruling on cigarette advertising on broadcast media and sale of cigarettes.
50. We have no reason to think, and petitioners have proffered nothing concrete in support of their claim, that the ruling will cause any substantial reduction in or the elimination of cigarette advertising on broadcast media or adversely affect the ability of broadcast licensees to serve the public interest. As we have stated, we shall tailor the requirement that a station which carries cigarette commercials provide a significant amount of time for the other viewpoint, so as not to preclude or curtail presentation by stations of cigarette advertising that they choose to carry.
51. Nor do we think it realistic to assume that the requirement will cause cigarette advertisers and manufacturers to turn to other advertising media. The attractiveness of the broadcast media, particularly television, as a means of effectively reaching the vast majority of the American public with advertising, as well as other, messages is without equal. n26 We find it difficult to believe that cigarette manufacturers and advertisers would abandon or make substantially less use of a medium of this nature merely because our ruling may require an increase in the programming on the smoking-health issue which broadcast licensees are already presenting in the exercise of their judgment under the Fairness Doctrine and pursuant to their obligation to operate in the public interest. n27 Rather, particularly in light of the consideration set forth above (par. 50), we are not persuaded that the effect of our ruling on the amount of cigarette advertising presented on broadcast media will be significant. n28
n26 The FTC report states (p. 10) that more of the money spent for cigarette advertising in the year 1966 was spent on television advertising than on all other media combined (66.6 percent in 1966). The report also states (ibid.) that "in 1966, cigarette advertising accounted for approximately 7.2 percent of total television advertising expenditures."
n27 In this connection, we note that many stations and the television networks (e.g., CBS's efforts as detailed in this case) have given coverage to the smoking-health issue and that they also continue to air numerous cigarette commercials.
n28 Certainly, there is no reason to anticipate that any such minimal impact could have any substantial adverse effect upon the ability of broadcast stations to serve the public interest. Cf., also FTC report of June 30, 1967, at p. 10.
[*945] 52. We also fail to see how the ruling would require any major change in the operation of broadcast stations. In complying generally with the Fairness Doctrine in their overall broadcast operations, broadcast licensees are required to afford reasonable opportunity for the presentation of the other side of controversial issues of public importance when they choose to present one side, and to document their efforts upon complaint. Our rules require the keeping of program logs (see, e.g., § § 73.111 and 73.112; see also sec. 303(j) of the Communications Act), and we are sure that licensees in the conduct of their business affairs presently keep full accounts as to advertising matters. Thus, we think that this particular controversial issue can be handled by licensees in a manner similar to their established practices in this area. n29
n29 We note that WCBS-TV apparently had no difficulty in ascertaining what programs that station had broadcast on this issue in response to Mr. Banzhaf's complaint.
53. There is nothing in our ruling which would preclude or curtail the ability of cigarette manufacturers to obtain advertising time on broadcast media. Licensees remain free to present such cigarette advertising as they choose. Conceivably, some licensees, in view of the mounting public concern as to the potential health hazard of cigarette smoking, might voluntarily decide to curtail or refrain from cigarette advertising broadcasts in the public interest. But that is appropriately a matter for licensee judgment as to how to conduct broadcast operations to serve the public interest, and not a requirement of our ruling. Under section 3(h) of the Communications Act, broadcasters are not common carriers and they cannot be compelled to present advertising which they do not wish to present. Moreover, cigarette manufacturers clearly have no right to insist that a broadcast licensee, who is willing to present cigarette advertising, present it in a manner that does not comport with his statutory obligation to operate in the public interest. Nor does a cigarette manufacturer have any legal right to complain that the use of radio to inform the public as to the potential health hazard of cigarette smoking may lead to some decline in cigarette sales or slow down the present trend of rising cigarette sales (FTC Report, pp. 4-7). Indeed, that is the very purpose of the educational efforts which Congress has directed HEW to undertake.
54. In sum, we see no merit to the contention that our ruling will lead to severe curtailment or possible elimination of cigarette advertising, or have a serious economic impact on the broadcasting industry, contrary to the intent of Congress in the Labeling Act. The ruling properly effectuates the responsibilities of broadcast licensees and this Commission under the Communications Act. There is no unlawful burden on interstate commerce nor conflict with congressional intent in, or the provisions of, the Labeling Act.
H. The Procedural Contention
55. Finally, petitioners urge that the ruling is procedurally invalid because it effects an important and unprecedented change of policy which will affect all licensees and it was adopted without affording WCBS-TV, broadcast licensees generally and other interested persons an opportunity to be heard. CBS, in particular, asserts that this was [*946] a departure from the Commission's procedure of advising a licensee of a fairness complaint and requesting its comments (Fairness Primer, FCC public notice of July 1, 1964, 29 F.R. 10415, 10416, cited with approval in the Red Lion case, supra, par. 8). CBS requests that the contents of its letter be treated as its comments on Mr. Banzhaf's complaint, and that we reconsider the ruling on the basis of such comments. n30
n30 NBC notes that the Commission did not have before it the text of the three commercials Mr. Banzhaf referred to as examples. It has attached to its comments the texts of three advertisements and states that two of them appear to be those mentioned in the complaint and the third is probably the other. NBC further states: "They may show 'attractive' people 'enjoying' themselves while smoking cigarettes, but surely that does not constitute the expression of a viewpoint on whether smoking is a hazard to the smoker's health." For the reasons stated in par. 38 above, we do not think that the text of the particular advertisements was necessary to our ruling or to our decision on the requests for reconsideration.
56. We have granted this request of CBS and have carefully considered its comments in determining that reconsideration is not warranted by the arguments contained in its letter. Our omission to seek the comments of WCBS-TV initially was occasioned by our view that Mr. Banzhaf's complaint, which enclosed his request to WCBS-TV and the reply of that station, adequately set forth the facts of the case and the positions of the parties. Since WCBS-TV has a continuing policy of presenting the smoking-health hazard controversy and asserted only its position that the Fairness Doctrine does not apply to advertising, our letter of June 2, 1967, to that station had two purposes: One, to appraise WCBS-TV of the Commission's view that the Fairness Doctrine does apply to cigarette advertising, as a matter of law and policy, and second, to bring to the station's attention our view that a sufficient amount of time must be allocated, usually each week, for the opposing viewpoint so that WCBS-TV could appropriately exercise its licensee judgment in connection with its continuing program. As stated in paragraph 6, supra, the effectiveness of the June 2d ruling will not be the basis for action against any licensee, including WCBS-TV, until publication of this memorandum opinion and order in the Federal Register. In the circumstances, and particularly the fact that we have fully considered the comments submitted by CBS on reconsideration, we conclude that WCBS-TV has not been prejudiced by the procedures followed in this matter.
57. It is true that other interested persons were not accorded an opportunity to be heard prior to the ruling. It is not the Commission's normal procedure or usual practice to accord the public in general an opportunity to be heard with respect to fairness complaints against a particular licensee, even though the complaint may involve an important issue of policy (see, e.g., Cullman Broadcasting Company, FCC 63-849; Times Mirror Broadcasting Co., 24 R.R. 404 and 407 (1962)). We thus followed long established 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. Moreover, the ruling is not effective as to any broadcast licensee until publication of this opinion in the Federal Register. In the circumstances, we conclude [*947] that petitioners have been adequately heard and have suffered no prejudice.
58. Further, we are unable to conclude that any useful purpose would be served by affording petitioners a further opportunity for written comment or oral argument. 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 desirability of further study or proceedings; thus we are not persuaded that any public purpose would be served by initiating rulemaking in this area, as requested by the law firm of Smith, Pepper, Shack, & L'Heureux. We note that the petition for rulemaking does not propose the adoption of any rules, but only the provision of a forum for consideration of the legal and policy arguments urged by petitioners and discussed herein. We do not think that a rulemaking proceeding is either needed or appropriate for their resolution. n31
n31 As set forth in par. 43 above, we agree with the CBS position that licensee responsibilities 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 rulemaking to prescribe such standards in the absence of some compelling showing leading us to revise our present judgment (see par. 43) and to conclude that rulemaking in this particular area would be appropriate and would serve a useful purpose.
59. And, finally, we point out that we could not in any event conclude that stay relief would be warranted pending any such further proceedings. This is not only because we believe that petitioners have not shown any substantial likelihood of ultimately prevailing on the merits of their position, either before this Commission or the courts, but also because the public interest would require denial of such relief on injury grounds. We have already set forth the basis for our belief that compliance with the ruling will not cause any substantial adverse impact on the broadcasting or advertising industries. We have not been shown that any irreparable injury will flow to petitioners. In any event, in view of the strong public interest in adequately informing the public, and particularly teenagers, 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 irreparable injury to the public. Indeed, if our ruling will contribute to the avoidance of one untimely death, the public interest would not be served by any delay in its effectiveness.
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 discussed in par. 33 and since confirmed and amplified in its report of August, 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 women's death rate from heart disease and lung cancer were twice that of nonsmokers. n32 In May 1966, Dr. Green of Harvard University reported experiments with rabbits [*948] proving cigarette smoking can cause many lung and throat ailments. n33 Roswell Memorial Institute announced in August 1966 a report finding filter tips of several cigarette brands ineffective in screening out harmful tars and nicotine. This report acknowledged that some filters were better than others, but asserts that none protects smokers. n34 A study by the Public Health Service and the American Cancer Society reported in October 1966 that a 5-year study of Seventh Day Adventists in California, comparing death rates of 11,071 male Adventists who do not smoke and the general male California population, showed one-sixth as many lung cancer deaths and one-third as many deaths from all respiratory diseases among Adventists as among the total male population. n35 Also in October 1966, a Louisiana State University 5-year study, financed partly by the Tobacco Research Council, reported findings of a relationship between cigarette smoking and hardening of the arteries in the heart. n36 Just recently, in a formal report to the President, it was stated by Dr. Kenneth M. Endicott, Chief of the National Cancer Institute, that "lung cancer -- which will kill more than 50,000 Americans this year -- can be brought under control because it is clearly caused by environmental factors -- chiefly cigarettes." The President was also advised that "lung cancer has reached epidemic levels in men and may soon do so in women." n37
n32 New York Times, Feb. 23, 1966, 41:8.
n33 New York Times, May 2, 1966, 39:1.
n34 New York Times, Aug. 30, 1966, 1:7.
n35 New York Times, Oct. 12, 1966, 54:1.
n36 New York Times, Oct. 22, 1966, 20:2.
n37 The Washington Post, July 22, 1967, 2:1.
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 smoking. In January 1966, the Department of Agriculture in a public report entitled, "Tobacco Situation", announced that 1965 had been a record year for cigarette consumption. n38 The reason given by the Surgeon General for the increase was new smokers, not the increased use of tobacco by the then-current smokers. n39 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 1/2 years of intensive educational efforts. n40 In October 1966, the Rand youth poll, conducted by the Youth Research Institute, released findings that teenagers smoke 10 million cigarettes 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 period since the Advisory Committee's Report. n41 In November 1966, the American Cancer Society noted a 6-year study by Dr. E. Cuyler Hammond showing a marked drop in cigarette smoking among older people and a rise in consumption by young people. n42 In December 1966, the Agriculture Department announced that Americans had once again set a new record for total consumption of cigarettes per year. n43 In light of the statistics concerning teenage smoking, this increase in consumption appears correlated to the increase in population which occurs through the increase in youthful persons.
n38 New York Times, Jan. 2, 1966, IV 7:1.
n39 New York Times, Jan. 11, 1966, 9:1.
n40 New York Times, July 17, 1966, IV, 10:1.
n41 Advertising Age, Oct. 31, 1966.
n42 New York Times, Nov. 3, 1966, 41:1.
n43 New York Times, Dec. 31, 1966, 4:6.
[*949] 62. We wish to make it clear that this Commission is not the proper arbiter of the scientific and medical issue here involved and of course has not sought to resolve that issue. We have cited the reports in question because they establish (i) that here is a most substantial controversial issue of public importance, which must be fairly aired to the American people, and (ii) 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 arguments put forth particularly by the tobacco industry; there are also new and continuing developments in this field. See hearings before the Consumer Subcommittee of the Senate Commerce Committee to review progress being made toward development and marketing of a less hazardous cigarette. We have not gone into detail on these matters, because they do not alter the two crucial findings set forth above.
63. As stated, this Commission agrees with the crucial point set forth in the concluding paragraph of the recent FTC report (see par. 34). In view of the congressional action, the Government and private reports, we conclude that a stay of our action would be contrary to the public interest. Licensees must therefore abide by the ruling, or seek judicial review 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.)
64. There is, we believe, some tendency to miss the main point at issue by concentration 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 Congress and the Government to represent a serious potential hazard to public health. Ordinarily the question presented would be how the carriage of such commercials is consistent with the obligation to operate in the public interest. In view of the legislative history of the Cigarette Labeling Act, that question is one reserved for judgment of the Congress upon the basis of the studies and reports submitted to it (except, of course, for whatever voluntary judgment the broadcasting 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 other side of the matter -- 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 particular doctrine but from the simple fact that the public interest means nothing if it does not include such a responsibility.
65. In light of all the foregoing, we conclude and find:
a. The ruling as to the applicability of the Fairness Doctrine to cigarette advertising is within the Commission's legal authority and discretion, and is in the public interest.
[*950] b. Petitioners have made no showing which warrants reconsideration and withdrawal of the ruling or the institution of rule making in this area.
c. Petitioners have made no showing that relief, except as indicated in par. 6 above, is warranted or in the public interest; on the contrary, the grant of stay relief would be likely to cause irreparable harm to the public.
Accordingly, It is ordered, That the petitions and requests for reconsideration, rulemaking, and stay listed in paragraph 1 of this memorandum opinion and order Are denied, except to the extent that relief is granted herein pending publication of this memorandum opinion and order in the Federal Register.
It is further ordered, That copies of this memorandum opinion and order shall be mailed to all broadcast licensees of the Commission.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
[*952] CONCURRING OPINION OF COMMISSIONER LEE LOEVINGER IN THE MATTER OF CIGARETTE ADVERTISING RULING
I concur with great doubt and reluctance in the Commission ruling that broadcasting licensees presenting cigarette advertising must also present warnings of the health hazards of cigarette smoking. I concur because the result seems to me to be socially and morally right. I have doubts that the action is procedurally and substantively consistent with controlling legal rules. I am reluctant because of concern that this action may represent a subjugation of judgment to sentiment. Briefly these are my views.
Cigarette smoking is a substantial hazard to the health of those who smoke which increases both with the number of cigarettes smoked and with the youthfulness when smoking is started. Cigarette smoking increases both the likelihood of the occurrence and the seriousness of the consequences of various types of cancer, of cardiovascular failures and of numerous other pathologies of smokers. These conclusions are established by overwhelming scientific evidence, by the findings of Government agencies, and by congressional reports and statute (15 USC sec. 1331 et seq.). The evidence on this subject is not conclusive, but scientific evidence is never conclusive. All scientific conclusions are probabilistic. (See Loevinger, Science and Legal Thinking, 25 Fed. Bar J. 153 (Spring 1965). Furthermore, law does not and cannot demand conclusive proof. Even in a capital case, law requires only proof beyond a reasonable doubt. In an ordinary civil case or administrative proceeding a mere preponderance of the evidence is sufficient to carry [*953] the day. The evidence as to the dangers of cigarette smoking to the smoker is clearly beyond a mere preponderance and approaches proof beyond a reasonable doubt. This is the basic premise of my position, as well as of the Commission position despite a rather feeble disclaimer that the Commission is not passing judgment on this issue (par. 62).
However, a burning conviction of good to be achieved or harm to be avoided neither establishes jurisdiction in a regulatory agency nor provides a sound legal guide to action. The instant proceeding illustrates the point.
The Commission here was so eager to take its present position that it acted on a complaint against CBS without giving notice to CBS, without affording CBS the opportunity to comment or submit a statement to the Commission directed to the issues under consideration, and without even bothering to secure or examine the text of the advertisements in question. Surprising though it may seem to those unfamiliar with administrative agencies, the Commission was not aware of these irregularities at the time of the initial ruling, and how they occurred is more significant as a study of administrative efficiency than as an issue of due process. It is enough to say that were the issue before us now merely the validity of the original letter to CBS these procedural defects would plainly invalidate the action.
However, what the Commission is doing now is issuing a prospective, legislative-type rule relating to cigarette advertising and broadcasting. CBS has been entirely exonerated from any imputation of unfairness in its broadcasting regarding cigarettes. That ends the proceeding so far as CBS is concerned; so that absence of due process in handling that complaint is no longer significant. In its present action, the Commission is exercising its quasi-legislative authority to make a prospective rule. It is acting on the material that has been submitted to it since the original letter to CBS, so it has before it a variety of differing views from many interested parties. I think it would be preferable to have oral argument on the proposed rule to give the Commission the advantage of the interchange and confrontation between advocates of opposing views, and to permit the exploration of issues by direct questioning. But the refusal to hold such oral argument is not fatal and does not preclude legislative-type action.
Despite the reiterated certainty of the Commission opinion, doubts remain as to the legal authority of the Commission. Repetitious reference to the public interest as establishing whatever conclusion is contended for is no more than question-begging. The "public interest" is a judgment encompassing whatever the person making the judgment deems to be socially desirable. (See dissenting opinion in Regulation of CATV Systems, 6 FCC 2d 309, 330, at 335 et seq. (1967); Loevinger, Regulation and Competition as Alternatives, 11 Antitrust Bulletin 101, 129 et seq. (1966); Schubert, The Public Interest (1960).) The Commission believes, and I concur, that it is socially desirable to discourage rather than encourage, smoking by people, especially young people.
But the Commission has not been given a roving mandate by Congress to do whatever it may regard as socially desirable (i.e., "in the public interest"). On the contrary, it has been established by Congress [*954] with a limited jurisdiction and can act only within the power delegated to it by Congress, which means that it cannot act without some definite statutory basis.
The Commission opinion rests the present action on the Fairness Doctrine. This is a rule that broadcast licensees must afford reasonable opportunity for the discussion of conflicting views on issues of public importance. This principle was first developed on the basis of the statutory licensing power as to broadcasters, Editorializing by Broadcast Licensees, 13 FCC 1246 (1949), and was recognized by reference in a 1959 amendment to section 315 (47 USC, sec. 315). The context of both sources refers to "news" and the basis Commission opinion also refers to "commentary" and "discussion of public issues". Neither contains the slightest suggestion that the principle has anything to do with advertising, and that conclusion is most dubious.
Further, I am concerned that extension of the Fairness Doctrine to advertising is likely to lead either to its attenuation to the point of ineffectiveness or its broadening to a scope that is wholly unworkable. No matter what the Commission now says about the distinction between cigarette advertising and other types of advertising, it is establishing the principle that the Fairness Doctrine applies to commercial advertising, as distinguished from paid political broadcasting. The Commission will be hard pressed to find a rational basis for holding that cigarettes differ from all other hazards to life and health. Contrary to the argument in the Commission opinion (par. 46), the normal use of automobiles does pose a health hazard, polluting the atmosphere to a degree that is dangerous not only to those using the automobiles but, even worse, in some localities to everyone, including infants and invalids. The Commission will also find itself embarrassed when, as will surely happen, the cigarette companies demand time from some broadcaster who refuses to carry cigarette advertising but presents public service messages warning against the dangers of cigarette smoking. Having declared this to be a "controversial issue of public importance", the Commission will be bound to require that the viewpoints of those manufacturing and selling cigarettes are afforded access to broadcasting facilities.
The Commission opinion does contain findings that might support the result reached. Paragraph 37 finds that cigarette advertising expressly represents smoking as desirable and implicitly represents that it involves "relative safety" or relatively little risk." This finding is corroborated by common experience and by scientific investigation. (See Preston, Logic and Illogic in the Advertising Process, 44 Journalism Q. 231 (Summer 1967).) In view of the clear weight of scientific evidence and official findings on this subject, this means that cigarette advertising constitutes both implicit misrepresentation and concealment of a material fact, if the health hazards are not disclosed by the seller. It is elementary law that the supplier of a chattel is bound to disclose its latent dangers to prospective users. (Restatement of the Law, Torts 2d, sec. 388.) There is sound statutory and precedential authority for Commission action to prevent false representations on the broadcasting media (18 USC sec 1343; KWK Radio, Inc., 34 FCC 1039 (1963), 119 App. D.C. 144, 337 F.2d 540 (1964), [*955] certiorari denied 380 US 910 (1965); Loevinger, The Issues in Program Regulation, 20 FCBA J 3 (1966)).
The normal remedy for such misrepresentation or concealment would be either to forbid the advertising altogether or to require that it carry adequate disclosure of the material facts. There are two reasons precluding such Commission action. First, the Commission has no authority over advertisers as such. Second, the 1965 Cigarette Labeling Act apparently forbids such action.
The first reason is easily surmounted. The Commission has held that a broadcast licensee must take reasonable measures to prevent the use of his licensed facilities for public deception. (KWK Radio, Inc., supra.) The application of this principle to the present situation suggests a means of achieving the result reached here within the limits of statutory authority and without doing violence to the Fairness Doctrine. The second reason is more difficult.
The Commission opinion recognizes the Cigarette Labeling Act as a substantial argument against the present action, since it devotes a large part of the discussion to it (pars. 15-35 and app. A). By reading the terms of the act very literally and the presumed purposes of the act very loosely, the opinion concludes that the present ruling is not precluded by the act but rather implements the policy of the act. The opinion offers a mass of detail in support of this conclusion, but a review of the relevant points casts some doubt. In several messages to Congress prior to passage of legislation on this subject and during consideration of such legislation, the FCC stated that its authority is limited to the broadcasting field and that it believed that cigarette advertising should be regulated on a "broad across-the-board basis" (par. 31). After receiving several such messages from the Commission, Congress in 1965 passed an act expressly stating: "It is the policy of the Congress, and the purpose of this chapter, to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, * * *" (15 USC sec. 1331). This was clearly the "broad, across-the-board" regulation which the FCC had suggested, and Congress surely was warranted in assuming that the FCC would not undertake to exercise its limited jurisdiction in a "piecemeal" attack upon the problem.
Nevertheless, the Commission opinion argues that FCC action is not precluded for several reasons. The opinion says that conditions have changed because the FTC is not undertaking the comprehensive regulatory plan which it formerly proposed (par. 32). But the reason for this is that the FTC plan was expressly forbidden by statute, and thus the only change in circumstance is the passage of the statute which limits, rather than extends, administrative authority to act in the field. The opinion also concludes that the terms of the Cigarette Labeling Act do not prohibit the present ruling because the acr refers only to statements made "in advertising" and not to statements made "because of the advertising" of cigarettes (pars. 16a, 23). However, the act prescribes the form of health warning that is required on cigarette packages and explicitly provides that no other statement relating to health and smoking shall be required on cigarette packages or in [*956] cigarette advertising. It the act is read as literally as the Commission opinion construes it, then it does not preclude the total prohibition of cigarette advertising, either altogether or in the broadcasting media. The opinion states that this would be inconsistent with the act (par. 15), although there is no specific provision of the act relating to this, any more than there is a specific provision relating to statements to be required "because of" cigarette advertising. The Commission opinion does not explain why the act is construed to permit one remedy but not another for misleading advertising, when neither is explicitly covered. Despite the profusion of detail and the length of the discussion the opinion does not come to grips with the issue posed by the Cigarette Labeling Act. The real reason for the Commission's present action is that during the last several years the Commission has changed its policy -- that is, its collective opinion -- on this subject and now believes that it should take whatever action it can take to combat the health hazard of smoking, especially by young people who are likely to be influenced by the broadcast media.
It seems to me that the construction of the Cigarette Labeling Act attempted in the Commission opinion is strained and unconvincing. However, the basic difficulty is that Congress was obviously ambivalent on this subject and that there is no unequivocally clear congressional intent to be derived from the act or its history. It was a compromise between conflicting viewpoints which still have spokesmen who are heard in Congress.
I am as persuaded as the Commission majority and its draftsmen that cigarette smoking is hazardous and injurious to the health of smokers and extremely hazardous and injurious to the health of those who start smoking while young. Therefore, I think it desirable that all legal and practical steps be taken to discourage smoking. I have serious doubts that the action taken now by the Commission is legally sound or practically effective. I think that if we spent less effort and space in proclaiming the righteousness of our purposes and objectives and more in careful and rigorous analysis of our procedures and of our legal jurisdiction and authority, and attempted greater specification of the scope and application of our ruling, we would be more convincing and more effective.
Consequently, I am reluctant to concur because this ruling seems to be the result of sentiment rather than conviction. It is based on a strong feeling that the public, especially the younger members of the public, should be protected against enticement to smoke cigarettes, rather than upon a well-reasoned conclusion that this is an effective means of achieving that objective and that this ruling is soundly based on legal authority. My opinion cannot change the result, so all I can do is indicate the difficulties I see in this approach to the subject and the reasons that I have doubts, while confessing candidly that I put doubts aside and join, albeit reluctantly, in voting for the ruling here because of a strong feeling that suggesting cigarette smoking to young people, in the light of present knowledge, is something very close to wickedness.
fairness and cigarette advertising
I join the Commission's decision to apply the Fairness Doctrine to the use of television and radio broadcasting to promote cigarette smoking. In view of Commissioner Loevinger's concurring opinion, however, I believe some brief remarks are appropriate.
With admirable honesty, Commissioner Loevinger has confessed to "doubts and reluctance" about our cigarette ruling. The issues he raises are provocative and significant. They touch on concerns which are, I believe, widely shared by members of the public. They inspire qualms about a case of landmark importance. I consider these doubts unwarranted.
Commissioner Loevinger does not state flatly that he thinks the ruling unlawful. But he does cast grave doubt on its validity, for his dismissal of a number of arguments against the Commission's position displays something less than full enthusiasm. For this reason, I feel obligated to set forth the simple logic behind my support for the decision.
The decision takes as its major premise a factual assertion which is so trivial as to be beyond cavil. so trivial as to be yond cavil. Advertising messages are part -- an important and substantial part -- of the information put before the public by television and radio broadcasting. Roughly one-third of radio's hour is spot commercials. As such, advertising messages should no more be granted automatic immunity from considerations of fairness than any other category of advocacy. If an advertisement takes a position on an issue that is controversial and of public importance then fairness -- whether as a matter of section 315, FCC regulations, or common decency -- requires that an opportunity be granted to ventilate opposing views (Communications Act of 1934, as amended, 47 U.S.C. § 315(a)(4) (1964); Federal Communications Commission, Public Notice, Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. 10415 (1964)).
The Commission's minor premise seems equally hard to question. The issue of whether people ought to smoke cigarettes is a controversial issue, and it is one of public importance. It has been recognized as such by Congress, the executive branch, the Federal Trade Commission as well as the FCC, the scientific and educational community, and the mass media. Millions of Americans smoke. Commissioner Loevinger agrees with the by now quite impressive evidence that they thereby incur grave risks of impairing their health and shortening their lives. Broadcasters licensed by this Commission to serve the public interest devote significant amounts of their prime time to encouraging Americans to incur those risks. Given this set of circumstances, it is the minimum obligation of this Commission to see to it that a fair opportunity exists to present the other view: the warnings of those responsible citizens who believe cigarette smoking to be a dangerous and insidious habit.
Commissioner Loevinger does not explicitly dispute this line of reasoning. But he cautions against such an interpretation of the Fairness [*958] Doctrine by advancing what lawyers call a "slippery slope" argument. If the Commission brands cigarette advertisements controversial issues of public importance, he says, virtually all advertising will be covered by the logic of that decision. No one will know where to draw the line. Now, it is certainly true that it is no easy matter to decide what is and what is not a controversial issue of public importance. But that difficulty is one with which the Commission must live, whenever it confronts a fairness case. The fact that this particular case happens to involve paid commercial announcements does not make it unique in that respect. The slippery slope argument states, in essence, that the logic of this decision, however justified on the facts before us, could be extended to other, more questionable, cases. Of course, this is right. This decision could be extended to other situations. But the fact is that all the hypothetical cases brandished by Commissioner Loevinger are more questionable than this one. By drawing the line at cigarette advertising we have framed a distinction fully as sound and durable as those in thousands of other rules laid down by courts every day since the common law system began.
Finally, Commissioner Loevinger broaches the argument that Congress may have intended to preclude FCC regulation of cigarette advertising when it passed the Cigarette Labeling Act. With all respect, I consider such a sweeping interpretation of that statute (which Commissioner Loevinger himself seems disinclined to accept) altogether misguided. It seems to me to reflect a very limited view of the relationship between particular congressional actions and administrative agencies charged with enforcing established public policies of great significance.
This Commission has few, if any, responsibilities to the people of America greater than its duty to insure that its licensees act consistently with the dictates of the Fairness Doctrine. That doctrine insures that the most powerful medium of mass communication in our society does not stifle competition in the marketplace of ideas. Had the Congress and this Commission not written this doctrine into statutory and regulatory prescription, early in the history of the Communications Act of 1934, the Supreme Court might well have felt obligated to make the requirements of fairness a matter of constitutional law. For fairness plainly deals with issues of constitutional dimension.
In view of the statute of the Fairness Doctrine, we would be underestimating our obligations as members of this Commission if we concluded that the Cigarette Labeling Act tied our hands in the present case. I agree with the Commission that our action here is entirely consistent with the regulatory design created by that act. But even if I shared Commissioner Loevinger's conclusion that the act is ambiguous, it would not alter my view of this issue. Elemental principles of public law dictate that forces within the legislature cannot override a major national policy, unless they persuade a majority of the legislature to inhibit the application of that policy with clarity if not explicitly. In plain political terms, if there was "ambivalence" it means that a majority of Congress did not state an intention to immunize the advocacy of cigarette smoking from the requirements of the Fairness Doctrine. Thus, the Commission's obligation to apply that doctrine according to its inherent logic remains in force.
[*959] In conclusion, I would like briefly to express my personal regret at the seeming reluctance of some broadcasters to accept the spirit of the fairness doctrine and this ruling. There is no social force more powerful than broadcasting today. If popular support is to be sustained for industry programming relatively unfettered by governmental restraint -- which I encourage -- the broadcasters must not only act responsibly but appear to act responsibly. Nothing contributes more to the appearance as well as the reality of responsible broadcasting than the Fairness Doctrine, and the FCC's enforcement of that doctrine. The broadcaster need not withstand alone both the charge the he has been unfair and that he has been unilaterally irresponsible in the self-evaluation of others' charges of his unfairness. He can point to the FCC, its procedures for evaluating such complaints, and its judgments on his behalf. Indeed, if the Fairness Doctrine and procedures did not exist I would think the broadcasters would be the first to urge their creation.
Note that, for a variety of reasons, the FCC has not banned cigarette advertising from broadcasting. Our action today simply requires broadcasters -- public licensees charged with operating in the public interest -- to afford opportunity for fair response to the appeals of cigarette commercials. It is a mild form of regulation. It will have little, if any, impact on the advertising revenues of station owners and networks. It will increase the amount of public service time for which they may take credit.
Unfortunately, it will probably also do little to brake the still-climbing rate of cigarette consumption by Americans, especially our young people -- who see, on the average, at least one television program every day sustained by commercials associating cigarette smoking with adulthood and other goals of youth. FTC Commissioner Elman has estimated that some 300,000 Americans die prematurely each year because of their affection for cigarettes. Given these facts, I should think broadcasters would want to give far more serious consideration than they have to a voluntary ban on the crriage of cigarette advertisements.
For, once again, it is the appearance as well as the reality that moves men's souls. And, unfortunately from the standpoint of the broadcasters' relations with their public, broadcasting's encouragement of cigarette consumption is an issue wrapped in profits as well as propriety (roughly $200 million a year). This is not an insignificant amount of money voluntarily to forgo. But, especially if its loss is ultimately inevitable anyway, it may be far cheaper in the long run to gain the goodwill of voluntary forbearance than to risk forever tainting the good name of American broadcasting.
BACKGROUND TO 1965 CIGARETTE LABELLING ACT
1. On January 11, 1964, the report of the Surgeon General's Advisory Committee concluded that cigarette smoking contributes substantially to mortality from certain specific diseases and to the overall death rate. The Committee recommended that "cigarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action." After the report was issued, many groups private and public acted to provide this "remedial action."
(a) The Tobacco and Broadcasting Industries
2. Soon after the Advisory Committee's report, the tobacco and broadcasting industries 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. n1 In June 1964 similar amendments were approved for the Radio Code. n2 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):
n1 Television Code, sec. IV, Program Standards, par. 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, sec. IX, General Advertising Standards, par. 7: The advertising of cigarettes should not be presented in a manner to convey the impression that cigarette smoking promotes health or is important to personal development of the youth of our country.
n2 Radio Code I, Program Standards, sec. H. 13: The use of cigarettes shall not be presented in a manner to impress 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. Sec. 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 indicate to the youth of our country that the use of cigarettes contributes to individual achievement, personal acceptance, or is a habit worthy of imitation.
The board recognizes the burden of responsibility the report imposes on
all television licensees in the area of cigarette advertising.
Specifically, the board is concerned with the potential of cigarette
advertising to give the false impression that cigarette smoking promotes health
or physical well-being.
The code authority also made clear that regulation initiated by the cigarette manufacturers was what they envisaged. Thus the authority provided that it would delay the issuance of general guidelines (interpreting the code amendments) which would assist advertisers and code subscribers in adhering to the television code restrictions, pending its determination of the implementation and effectiveness of the tobacco industry's self-regulation. Id., at p. 592.
3. In April 1964 the major cigarette companies announced their agreement and adherence to a cigarette advertising code to impose standards and enforcement procedures for the self-regulation of cigarette advertising. The code provided advertising standards which would be applied by an independent administrator who would survey the advertising and labeling of cigarettes in the United States, with the power to levy fines for any advertising or labeling which does not conform to the industry code standards. These standards are basically of three types. The first prohibits many types of cigarette advertising specifically directed at persons under 21 years of age. Another prohibits health claims, except in certain limited circumstances. The third type prohibits suggestions that smoking is essential to social prominence, distinction, success, or sexual attraction. Robert B. Meyner, the former Governor of New Jersey, is the first and current administrator for the code. In evaluating the effect of the code on cigarette advertising, Mr. Meyner said in a Senate hearing (id., at p. 568) that the character of cigarette advertising had been altered as a result of his enforcement of the code. n3
n3 However, we note the following exchange between Code Administrator Meyner and Senator Bass (id., at p. 581):
"Senator BASS. * * * don't you believe that the industry itself, with you as the administrator, don't you believe that you are capable of protecting the health of the American public as far as advertising of cigarettes is concerned?
"Code Administrator MEYNER. I think you describe a responsibility that is greater than is set forth in the code. As the code sets it forth, I am trying to accept that responsibility * * *"
(b) HEW and Private Health Agencies
4. The Department of Health, Education and Welfare (HEW) also took action after the Advisory Committee's report. On February 18, 1964, the Surgeon 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 in the establishment of the National Interagency Council on Smoking and Health on July 9, 1965. The purposes of the Council are threefold: "(1) to use its professional talents to bring to the Nation -- particularly the young -- an increasing awareness of the health hazards of cigarette smoking, (2) to encourage, support and assist National, State, and local smoking and health programs, and (3) to generate and coordinate public interest and action related to this area of health." The membership of the Council includes 13 private agencies and three Federal Government agencies (U.S. Public Health Service, U.S. Office of Education, and U.S. Children's Bureau).
5. In 1964, the Public Health Service, which strongly endorsed the conclusions of the Advisory Committee's report, awarded 10 grants and contracts to support demonstrations and projects to design effective methods of reaching various population groups with the facts about smoking. The comprehensive educational campaigns, however, which the Public Health Service desired to start had to await appropriations forthcoming from the 89th Congress. The President's Commission of Heart Disease, Cancer, and Stroke recommended an appropriation of $10 million 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 in the fall of 1965.
(c) The Federal Trade Commission
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 effects from cigarette smoking, or which made unsubstantiated claims respecting nicotine, tars of other components of cigarette smoke, or which in any other respect contain implications concerning the health consequences of smoking cigarettes or any advertised brand (FTC Ann. Rept., 1960, p. 82). In 1960 the FTC obtained agreement from leading cigarette manufacturers to eliminate unsubstantiated claims of nicotine and tar content (Ibid.).
7. Shortly after the issuance of the Advisory Committee's report the FTC, on January 18, 1964, initiated a trade regulation rule making proceeding concerning the advertising and labeling of cigarettes. On June 22, 1964, after examining the advertising, labeling, and other promotional practices in the cigarette industry, the FTC concluded that cigarette manufacturers should be required to make an affirmative disclosure of the potential hazard from smoking in labeling and advertising (29 F.R. 8325). The basis for its conclusion was twofold. First, the FTC found that the consensus of medical and scientific opinion was that cigarette smoking is a significant 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 being sold to the consuming public -- by means of labeling and advertising which fails to disclose the health hazards of cigarette smoking -- were deceptive and unfair to consumers under settled legal principles governing truth and fairness in advertising. The rule would have required that each cigarette package bear a warning statement by January 1, 1965. Also, if the warnings on the package together with such voluntary advertising reforms as the industry might have undertaken in the interim, had failed to change the circumstances leading to the FTC's findings, the rule would have then required, in addition, warnings in all cigarette advertising by July 1, 1965.
8. On September 3, 1964, at the request of Chairman Harris of the House Commerce Committee, the FTC extended the effective date of the rule for both packaging and advertising warnings to July 1, 1965 (29 F.R. 15570). Chairman Harris stated that he had requested such action because testimony which he had received during his committee's hearings in June and July 1964, indicated that the validity of the trade regulation rule would be challenged in the courts, that judicial review could delay the enforcement of the labeling requirements for a considerable period of time, and that the enactment of legislation in this area by the Congress could very well eliminate this delay. The FTC rule never went into effect because Congress enacted the Cigarette Labeling Act.