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In the Matter of AMENDMENT OF PART 73 OF THE FEDERAL COMMUNICATIONS COMMISSION RULES

WITH REGARD TO THE ADVERTISEMENT OF CIGARETTES.

 

Docket No. 18434

 

FEDERAL COMMUNICATIONS COMMISSION

 

16 F.C.C.2d 284 (1969)

 

RELEASE-NUMBER: FCC 69-95

 

February 5, 1969 Adopted

 


 

BY THE COMMISSION: COMMISSIONER WADSWORTH DISSENTING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT.

 

1. The Cigarette Labeling and Advertising Act of 1965 (Public Law 89-92, 15 U.S.C. 1331 et seq.), which establishes "* * * a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health * * *" (Act, sec. 2, 15 U.S.C. 1331), provides that the provisions "which affect the regulation of advertising" shall terminate on July 1, 1969 (sec. 10, 15 U.S.C. 1339). Congress' purpose was to establish an appropriate period at the conclusion of which it would review this important subject to determine what action should be taken in light of the experience and information obtained. The Commission believes that in its review, Congress should be fully apprised of any administrative action which this agency might take, assuming the absence of a contrary congressional direction. That is the essential purpose of this notice. Specifically, we propose, for the comment of interested persons and for consideration by the Congress in its review, a proposed rule which would ban the broadcast of cigarette commercials by radio and television stations. We shall set forth briefly the background and basis of this proposal.

 

A. Background

 

2. The Commission's previous action in this area was designed to carry out the congressional policy embodied in the 1965 act of not, in effect, barring cigarette advertisements and at the same time promoting intensive smoker education during the life of the act. See "Applicability of the Fairness Doctrine to Cigarette Advertising," 9 F.C.C. 2d 921 (1967), affirmed Banzhaf v. Federal Communications Commission, case No. 21285, C.A.D.C., November 21, 1968, petition for rehearing pending. It required that a broadcast licensee presenting cigarette commercials -- which convey "* * * any number of reasons why it appears desirable to smoke * * *" n1 -- must "* * * devote a significant [*285] amount of time to informing the 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". n2 We further stated, in our important summary paragraph: 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 now make). n3

 

n1 9 F.C.C. 2d at 939.

 

n2 Id. at 949.

 

n3 Ibid.

 

As stated at the outset, the question remains one for the Congress. With the termination date approaching, it is, however, appropriate that the Commission now also consider the question, so that Congress may be aware in its review of any administrative proposal we may deem appropriate. We first consider the public health basis of the matter.

 

3. We set out the then pertinent medical findings in our 1967 decision and shall not repeat that discussion. n4 Instead, we shall turn to the subsequent relevant reports. As stated in the 1967 report to Congress on the health consequences of smoking by the Department of Health, Education, and Welfare:

 

n4 Id. at pp. 936-937, 947-948.

 

In the 3 1/2 years since the publication of that report, an unprecedented amount of pertinent research has been completed, continued, or initiated in this country and abroad under the sponsorship of governments, universities, industry groups, and other entities. This research has been reviewed and no evidence has been revealed which bring into question the conclusions of the 1964 report. On the contrary, the research studies published since 1964 have strengthened those conclusions and have extended in some important respects our knowledge of the health consequences of smoking.

The present state of knowledge of these health consequences can, in the judgment of the Public Health Service, be summarized as follows:

 

"1. Cigarette smokers have substantially higher rates of death 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 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." n5

 

n5 "The Health Consequences of Smoking, a Public Health Service Review," 1967, Public Health Service Publication No. 1696, pp. 3-4 (revised January, 1968).

 

The 1968 supplement has the following highlights:

 

General Mortality Information

 

Previous findings reported in 1967 indicate that cigarette smoking is associated with an increase in overall mortality and morbidity and leads to a substantial excess of deaths in those people who smoke. In addition, evidence herein presented shows that life expectancy among young men is reduced by an average of 8 years in "heavy" cigarette smokers, those who smoke over two packs a day, and an average of 4 years in "light" cigarette smokers, those who smoke less than one-half pack per day.

Smoking and Cardiovascular Diseases

 

Current physiological evidence, in combination with additional epidemiological evidence, confirms previous findings and suggests additional biomachanisms whereby cigarette smoking can contribute to coronary heart disease. Cigarette smoking adversely affects the interaction between the demand of the heart for oxygen and other nutrients and their supply. Some of the harmful cardiovascular effects appear to be reversible after cessation of cigarette smoking.

 

Because of the increasing convergence of epidemiological and physiological findings relating cigarette smoking to coronary heart disease, it is concluded that cigarette smoking can contribute to the development of cardiovascular disease and particularly to death from coronary heart disease.

 

Smoking and Chronic Obstructive Bronchopulmonary Disease

 

Additional physiological and epidemiological evidence confirms the previous findings that cigarette smoking is the most important cause of chronic nonneoplastic bronchopulmonary disease in the United States.

 

Cigarette smoking can adversely affect pulmonary function and disturb cardiopulmonary physiology. It is suggested that this can lead to cardiopulmonary disease, notably pulmonary hypertension and corpulmonale in those individuals who have severe chronic obstructive bronchitis.

 

Smoking and Cancer

 

Additional evidence substantiates the previous findings that cigarette smoking is the main cause of lung cancer in men. Cigarette smoking is causally related to lung cancer in women but accounts for a smaller proportion of cases than in men. Smoking is a significant factor in the causation of cancer of the larynx and in the development of cancer in the oral cavity. Further epidemiological data strengthen the association of cigarette smoking with cancer of the bladder and cancer of the pancreas. n6

 

n6 "The Health Consequences of Smoking, 1968." Supplement to Public Health Service Publication No. 1696, pp. 3-4.

 

4. We shall not set out the many detailed reports (e.g., the Hammond Study; the Dorn Study) discussed in these documents. We do point out that among the diseases as to which cigarette smoking is the main or most important cause, n7 there is an alarming rate of increase in mortality. There were 25,416 deaths from emphysema and/or chronic bronchitis in 1966 which represent a 25 percent increase over 1964. n8 It is estimated that "* * * within 10 years, the death toll from these two diseases, which doubles every 5 years, could be well over 80,000." ("The Dark Side of the Marketplace," 1968, by Senator Warren G. Magnuson and Jean Carper, p. 187). The annual number of deaths in the United States from cancer of the lung increased from 18,313 deaths in 1950 to 48,483 in 1965. n9 It is stated that "by 1976, unless the epidemic is checked, twice that number or 80,000 yearly, will die of the disease [*287] " (ibid). The 1967 report indicates that cigarette smoking is associated with as much as one-third of all deaths among men between 35 and 60 years of age. n10 The 1968 report of the Secretary of Health, Education, and Welfare to Congress concludes that "* * * smoking is a serious health hazard in this country, one which is bringing about much unnecessary disease and death within our population. In the words of the 1964 report, adequate remedial action is required. In my opinion, the remedial action taken until now has not been adequate." n11 See also "The Dark Side of the Marketplace," 1968, supra.

 

n7 As to other diseases such as in the heart disease field, consider the following statement:

 

For the population as a whole, cigarette smoking increases the likelihood of death by coronary disease by about 70 percent. But for those people who already suffer from high blood pressure, cigarette smoking jumps the risk to over 200 percent. "1967 World Conference on Smoking & Health, A Summary of the Proceedings," p. 122).

 

n8 1968 Supplement, supra at 66.

 

n9 Id. at 94.

 

n10 "Health Consequences of Smoking," 1967, supra, p. 14. The foregoing is just a sketch of some of the highlights and does not represent a history of all the significant statistics in the reports. Thus, the following statistics in the reports were cited before the 1967 World Conference on Smoking and Health:

"Over a quarter of a million premature deaths each year from diseases associated with cigarette smoking."

 

"Eleven million extra cases of chronic disease in the cigarette smoking population."

* * *

 

"The quarter of a million early deaths are a little less than a seventh of all the deaths in America each year. At present rates, then, one-seventh of all Americans now alive -- about 28 million people -- will die prematurely of diseases associated with cigarette smoking. These are round figures, but they are not far from the mark." (Speech of Senator Robert Kennedy, 1967 World Conference on Smoking and Health, a Summary of the Proceedings, pp. 4-5).

 

The recent book, "The Dark Side of the Marketplace," by Senator Warren G. Magnuson and Jean Carper, refers (pp. 185-186) to a "recent autopsy study of cross sections of human lung tissue [which] revealed that 93.2 percent of the smokers had abnormal lung cells as compared with only 1.2 percent of the nonsmokers," and to the 7 percent drop of the lung cancer rate of British doctors (16 percent of whom gave up cigarettes between 1951 and 1958) as against a 22 percent increase in the rate among the general public in Great Britain.

 

n11 "Report to Congress on Smoking and Health" by the Secretary of Health, Education, and Welfare, July 1, 1968, p. 1.

 

B. The Public Interest Consequences

 

5. When the question posed in paragraph 2, supra, is considered in the light of the foregoing reports, the compelling answer would appear to be that presentation of commercials promoting the use of cigarettes is inconsistent with the obligation imposed upon broadcasters to operate in the public interest. One of the foremost facets of the public interest standard is public health, as the court pointed out in Banzhaf v. F.C.C., supra, Slip Opinion, p. 26. We are here faced with a most serious, unique danger to public health "authenticated by official and congressional action * * *" n12 It would thus appear wholly at odds with the public interest for broadcasters to present advertising promoting the consumption of the product posing this unique danger -- a danger measured in terms of an epidemic of deaths and disabilities.

 

6. The commercials do promote the use of cigarettes. As we developed in our 1967 document, n13 that is understandably their purpose. We also note that in its 1968 report to Congress, the Federal Trade Commission concluded:

 

n12 Id. at p. 29.

 

n13 9 F.C.C. 2d at pp. 938-940.

 

In 1964 and again in 1967, the Commission found that three principal themes dominate cigarette advertising. These are that (1) smoking and particularly the taste derived from it are satisfying; (2) smoking is associated with that which is desirable or even good; and (3) it is an activity relatively free of hazard.

 

A review of specimen 1967 and early 1968 advertising, obtained through the Commission's continuous monitoring program and also directly from cigarette advertisers, reveals that these three themes, the "satisfaction" theme, the "associative [*288] " theme, and the "assuaging of anxiety" (relative to the danger of cigarette smoking) theme continue to dominate. n14

 

n14 See "Federal Trade Commission Report to Congress Pursuant to the Federal Cigarette Labeling and Advertising Act," June 30, 1968, p. 12. The Commission noted that the "satisfaction" and "associative" themes are basic to the promotion of the cigarette smoking, and that the commercials seek to ease smokers' fears by emphasizing the quality of the filters. Thus, the FTC reported:

 

"* * * The implied safety of a filter (the mere addition of a filter to a cigarette is, in and of itself, some kind of claim or assurance relative to the health aspects of smoking) and the miraculous way in which it delivers taste continues to be the advertiser's principal palliative against smokers' misgiving * * * The implication that 'filter' equals 'comparative safety' can be made more express through depictions of the complicated inner workings of the filter * * * or by euphemisms such as 'mild', 'soft'." (Id. at p. 20.)

 

7. There is no question but that cigarette commercials have significant impact. Here we note initially that the broadcast industry is the recipient of more than 75 percent of the advertising dollar of cigarette manufacturers, in the amount of $244.4 million in 1967. n15 This expenditure, when measured in terms of "exposures" on television to members of the broadcast audience (i.e., the number of cigarette commercials times the estimated program audience), resulted in 13.3 billion exposures in January, 1968 alone. n16 Finally, we note that the commercials reach children to a very significant extent. Based on figures from the FTC report, 1968 supplement, children, ages 2-11, account for more than 13 percent of the exposures of television cigarette advertisements, while teenagers, ages 12-17, account for another 10 percent; the remaining 77 percent represents all adults above 18 years. The exposure rate of teenagers to televised cigarette advertisements was up nearly 10 percent and the rate for children up over 13 percent, compared with a year earlier. n17

 

n15 Id. at p. 7.

n16 Id. at p. 10.

n17 Id. at pp. 10-11.

 

8. There is, we believe, no need to develop further this facet. For the issue does not turn upon the precise extent of impact of the cigarette commercials. It is sufficient that the impact is significant and thus the public health problem posed under the public interest standard is also significant and cannot be sloughed aside. n18 Indeed no one can seriously argue that there is no significant impact -- that the millions spent in this respect year after year is to no significant purpose. n19

 

n18 The overall health problem is, of course, a severe one in view of the sustained high level of cigarette sales. See "New York Times," Jan. 4, 1969, p. 14c, where it stated that 1968 U.S. consumption of cigarettes was, according to Department of Agriculture figures, 526.5 billion -- a consumption which was approximately a billion cigarettes fewer than 1967. Another authority states that there are over 4,000 children starting to smoke every day -- nearly a million and one-half a year -- and that, using present mortality rates, a million children now in school will die prematurely from lung cancer alone ("1967 World Conference Summary," supra, p. 5).

 

n19 Thus, in "The Dark Side of the Marketplace," at pp. 199-200, it is stated:

 

"Although such television advertising may be objectionable, we again should not be overconfident that its abolition would cause a dramatic reduction in smoking. We simply do not know -- nor is it possible to ascertain -- how much television advertising contributes to a person's decision to take up smoking or to continue smoking. There is, however, a firm conviction among educators and public health officials who have worked with the teenage smoking problem that, even if advertising does not prompt a youngster to smoke, the constant barrage of commercials does reinforce youngsters' judgments that smoking is socially desirable and thus is a factor in their decision."

 

9. We have considered other factors. There is the argument that a proscription should only be across-the-board, and not just in the broadcast field; that a ban limited to the one field would result, as a practical matter, in a shift in advertising expenditures to the nonproscribed [*289] areas. n20 The question of an across-the-board ban is of course one solely for the Congress. Here we point out, first, that broadcasting is clearly the most effective medium for promotion of cigarettes, as shown by the above noted expenditure by cigarette manufacturers of 75 percent of the advertising dollar in this field; and second, in any event, we must decide whether the promotion of this product, so uniquely hazardous to health, is consistent with the public interest standard of the Communications Act. In the face of the public health discussion in paragraph 3, supra, we do not believe that this issue can be avoided upon the basis of what other media may be doing or may gain from our action. For the same reason, the issue would still have to be resolved, even in the event of possible FTC regulations similar to those issued in 1965, or of heightened educational campaigns, including the noncommercial messages now carried so frequently over broadcast facilities. The latter messages, for example, do contribute most significantly to the public interest. But the public interest issue posed cannot be resolved by some attempted balance between broadcast material promoting the use of cigarettes and countering material broadcast to discourage such use. Rather, we repeat, the issue is how, in the light of the findings recited in paragraph 3, supra, promotion of this product over broadcast facilities can be said to be consistent with the public interest.

 

n20 This was the experience in Great Britain. See "1967 World Conference Summary", supra, p. 238:

 

"There was a switch of cigarette advertising from TV to the press, and an increase in the amount spent on TV advertising of cigars and pipe tobacco in the press and on TV. Virtually all the increased expenditures on TV was accounted for by cigar advertising, particularly of the miniature brands."

 

10. The above discussion is also pertinent to the factor of impact upon the cigarette industry. We recognize that this is a substantial industry employing thousands of persons and representing roughly an 8.4 billion dollar contribution to the gross national product and a correspondingly sizable tax contribution. n21 The effect of a ban on cigarette commercials upon that industry is difficult to assay, and indeed is not possible at this stage when it cannot be foretold what action, if any, Congress may take with respect to cigarette advertising or promotion generally. While this is a matter upon which parties may comment, and as to which Congress will again be the final arbiter, we believe, upon present considerations, that it is not a bar to action along the lines we propose. Congress has been appropriating funds for a smoker-education effort -- to encourage young people not to smoke and to warn present smokers of the hazards to their health. n22 The premise of this action is clear -- that the economic well-being of an industry, however substantial, cannot be secured at the expense of the public health. We intend to proceed on that premise, unless and until it is set aside by Congress.

 

n21 "Tobacco Situation." TS-125, Sept. 30, 1968, p. 50; see also, "Facts On Smoking, Tobacco and Health," May, 1968, U.S. Public Health Service, Department of Health, Education, and Welfare, pp. 49-50; 101-125.

 

n22 Since 1965, annual appropriations have been made for the National Clearinghouse for Smoking and Health at the level of $2 million under Public Health Services, Chronic Diseases, and Health of the Aged.

 

11. If the foregoing principle is to be applied in the case of impact upon the tobacco industry, a fortiori, it is applicable to the issue of impact upon the broadcasting industry. As a further matter, we note [*290] that in 1967, cigarette advertising accounted for approximately 8 percent of the total television billings and 5.9 percent of radio billings; n23 and that the broadcast industry generally is profitable. n24 The industry would appear able to absorb the loss of revenue from cigarette advertising and indeed its leaders have already warned of such a loss at industry meetings. n25

 

n23 "Broadcasting," July 8, 1968, p. 23. In 1967 cigarette advertising amounted to 11 percent of total network TV business (170.2 millions); 3.9 percent of total network spot business (46.5 millions). See "Television Factbook," 1968-69 edition, No. 38, pp. 56a-57a.

 

n24 In 1967, the television industry showed a pre-Federal income tax profit of $414.6 millions. and in 1966, radio reported such a profit of $97.3 millions. (See FCC Public Notice 26097, December 31, 1968, and FCC Public Notice 10206, December 19, 1967.) While the TV statistics represented a decline from 1966, they do indicate a generally healthy industry situation.

 

n25 At the March 1967 meeting of State broadcast presidents of the National Association of Broadcasters, the general counsel of that organization stated on the basis of the public health issue: "If I were a broadcaster over the next 5 or 10 years I would be looking for sources of revenue to replace cigarette advertising." ("Advertising Age", Mar. 6, 1967, p. 1.) While we do not assert that the British and U.S. television industries are necessarily comparable, we again note the British experience in this respect: "The immediate loss of revenue by independent TV companies was more than made up in the first year by increased revenue from advertisers of other products. Both metropolitan and provincial companies recouped the loss of revenue from cigarette ads." ("1967 World Conference Summary", supra. p. 238.)

 

12. This brings up a most important consideration -- that of voluntary industry action to eliminate cigarette commercials. We specifically listed this possibility in our 1967 decision. n26 We again stress it, and indeed regard it as a threshold matter -- ahead of any final consideration of the issue by either the Commission or Congress. The broadcast industry does not accept the advertising of hard liquor (e.g., Television Code IX, No. 6). Why, then, should this same industry accept cigarette commercials in the face of the public health findings in paragraph 3? Responsible broadcasters would be shocked by an operation such as that involved in KFKB Broadcasting Assn. v. Federal Radio Comm., 60 App. D.C. 79, 47 F.2d 670 (1931), where the licensee, which was controlled by a doctor, engaged in spurious medical advice including bogus cancer cures, "inimical to the public health and safety, and for that reason not in the public interest." n27 Why, then, are not these same broadcasters similarly concerned by their own presentation of commercial messages for a product which is, just for one example, the main cause of lung cancer (with one report stating that "the elimination of cigarette smoking would in time eliminate most lung cancer" -- 1968 "HEW Supplement to the Health Consequences of Smoking," p. 99)? n28 These questions are not meant simply to be provocative. We are issuing a most serious call to the industry to focus upon what its responsibilities are, in light of the public health reports discussed in paragraph 3. n29 We expect serious consideration by the [*291] industry of this matter, and would, of course, also delay any resolution of this proceeding for a reasonable time to permit such consideration. In the words of Senator Magnuson and Mrs. Carper ("The Dark Side of Marketplace", supra, p. 199):

 

n26 Par. 64, 9 F.C.C. 2d at p. 949.

 

n27 60 App. D.C. at 80. 47 F. 2d at 672.

 

n28 To ask but one other question: How, in the face of the foregoing public health evidence, can the broadcast industry become the main partner of the cigarette companies in promoting the sale of new longer (100 millimeters or longer) cigarettes, which by virtue of their size, generally contain added dosages of tar and nicotine? See "The Dark Side of the Marketplace." supra, pp. 196-198.

 

n29 In the 1967 World Conference, Mr. Emerson Foote in effect issued the same challenge in terms of permitting an industry "* * * to use advertising to shorten people's lives, and to ruin their health, on a truly catastrophic scale" (1967 World Conference Summary, supra. p. 249). The late Senator Kennedy further quoted, with full agreement, the following supporting letter of Mr. Foote:

 

"To me, the situation of cigarette advertising on television is like this:

 

"1. Television advertising encourages people to smoke.

 

"2. Cigarettes kill people -- in large numbers.

 

"3. It is not morally justifiable to encourage people to kill themselves.

 

"4. Therefore, cigarette advertising on television should be banned." (Id. at 10.)

 

It is to this and to the statistics in par. 3, supra, that we urge the broadcast industry to address itself.

 

Senator Robert Kennedy of New York has recently suggested that Congress ban all television advertising of cigarettes * * * [This reform deserves] serious consideration. Some Congressmen suggest that the airwaves are a public resource, licensed by the Federal Government on the stipulation that they be operated in the public interest. That inducing people to smoke, especially youngsters, is contrary to the public interest is indisputable. The broadcasting industry by following its own code could, in fact, obviate the necessity for congressional action by voluntarily refusing cigarette advertising, as they now refuse advertising for firearms and hard liquor. The broadcasters' code recognizes that "television and all who participate in it are jointly accountable to the American public for respect for the special needs of children, for community responsibility * * * and for propriety in advertising * * *"

 

C. The Scope of the Proposed Rule

 

13. The proposed rule would simply provide that after a certain broadcast licensees shall not present cigarette advertising. However, we specifically raise the issue whether there should be an exemption so as to inform the public concerning cigarettes low in tar and nicotine and related filter aspects. There is much evidence implicating tar-nicotine in smoking disease and death by smoking. See "The Health Consequences of Smoking," 1967, supra, pp. 14-15; "The Dark Side of the Marketplace," supra, pp. 186-187, 194-195, 203. While it may be that information at the point of purchase is very useful in this respect, we also request comment on whether there should be an exemption from any ban in order to permit broadcast dissemination via commercials of such information.

 

14. The proposed rule does not affect the presentation of broadcast material concerning cigarette smoking in any other form, such as in newscasts, documentaries, roundtable discussions, etc. Licensees might adjudge that there is a controversial issue to be discussed or explored, and here we refer to all facets of the matter (including the issue of this notice, a ban on radio and TV advertising). n30 They, of course, might well conclude that the antismoking messages, which contribute to an informed public in this critical area, should continue unabated, with the cigarette manufacturer afforded the opportunity to present his side in newscasts, documentaries, roundtable discussions, and other formats. All these are matters for licensee judgment.

 

n30 There is no anomaly in such a judgment, as against the premise of this notice -- that the hazard to public health calls for a ban on cigarette commercials. While many health authorities now regard the matter as settled ("1967 World Conference Summary," supra, pp. 1. 118; "The Dark Side of the Marketplace," supra, p. 188) the reports discussed in par. 3 obviously cannot be regarded as barring dissent thereto, or the presentation of contrary views. On the other hand, they do constitute a most substantial showing of hazards -- one which cannot be ignored and calls for remedial action.

 

D. Authority

 

15. We believe, in view of the public health basis uniquely authenticated by official action, that we do have authority to act here under the public interest standard set out in sections 303, 307, 308, 309, and [*292] 315 of the Communications Act, 47 U.S.C. 303, 307, 308, 309, 315. n31 While we here are reciting the authority as required by the Administrative Procedure Act, we believe that in this case of such a threat to public health (see par. 3), the authority to act is really a duty to act. We stress again that our action is limited to this unique situation and product; n32 that we are unaware of any other product commercials calling for such action, and expressly disclaim any intention so to proceed against other product commercials. Finally, as to the first amendment issue generally, we note that product advertising, if it comes within the first amendment "* * * is at least less rigorously protected than other forms of speech." n33 The issue is thus whether the first amendment protects the advertising of a product as to which there is a most substantial showing that it is the main cause of lung cancer, the most important cause of emphysema and chronic bronchitis, and so on. We do not believe so. Finally, we have noted the argument that since cigarettes may be legally purchased, it is wrong both legally and as matter of policy to proscribe the advertisement of such a legal product. But the short answer is that while, in light of the national experience with liquor, the prohibition of a particular product such as cigarettes may be impracticable (again a matter solely for the consideration of the Congress), it does not follow at all that the promotion of the product should be permitted, either legally or as a matter of policy. Remedial actions in the promotion area may well be feasible and serve the public interest.

 

n31 Cf. Banzhaf v. F.C.C., supra, Slip Opinion, pp. 15-19.

 

n32 See 9 F.C.C. 2d at pp. 942-943.

 

n33 Banzhaf v. F.C.C. supra, Slip Opinion, p. 34. See also Valentine v. Chrestensen, 316 U.S. 52 (1942); Breard v. Alexandria, 341 U.S. 622. 642 (1951); Murdock v. Pennsylvania, 319 U.S. 105, 110-11 (1943); Martin v. Struthers, 318 U.S. 141, 142 n. 1 (1943); Jamison v. Texas, 318 U.S. 413, 417 (1943).

 

CONCLUSION

 

16. Our proposed action is in line with the 1968 HEW report and the recommendations of the FTC that there be a ban on cigarette advertising on television and radio. n34 It flows, we believe, directly and as a matter of common sense from the public interest standard in view of the hazard to public health here involved. We therefore issue the notice at this early date in 1969 so that Congress may be afforded the fullest possible opportunity to take the proposal into account in its review of the matter. We again stress the question of voluntary action by the broadcast industry and our recognition that insofar as the Government is concerned, Congress must be the final arbiter of this matter and must signal what action is to be taken.

 

n34 "1968 FTC Report," supra, p. 31. We also note that several other nations ban advertising on either television or radio or both (e.g., Czechoslovakia, Denmark, France, Ireland (phaseout will result in ban by 1971), Italy, Norway, Sweden, Switzerland, and Great Britain (ban on TV only)). The "New York Times," Dec. 20, 1958, p. 14c, reports that "[in] a devastating attack on cigarettes, the Federal Health Department [of Canada] virtually declared war today on smoking and proposed a series of stringent measures that could include a total ban on cigarette advertising."

 

17. Pursuant to applicable procedures set forth in 1.415 of the Commission's rules and regulations, interested persons may file comments on or before May 6, 1969, and reply comments on or before July 7, 1969. In accordance with the provisions of 1.419 of the rules, an original and 14 copies of all comments, replies, briefs and other [*293] documents shall be furnished the Commission. All relevant and timely comments and reply comments will be considered by the Commission before final action is taken in this proceeding. In reaching its decision in this proceeding, the Commission may also take into account other relevant information before it, in addition to the specific comments invited by this notice.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

 


 

CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON

 

I concur in the Commission's announcement of a proposal for rulemaking that would bar the future advertisement of cigarettes over radio and television. I do so out of my general commitment to the desirability of seeking public and industry comments in matters of this kind prior to making up one's mind on the merits. I have earlier expressed my concern about -- if nothing else -- the adverse impact upon the public relations of a broadcasting industry that doggedly persists [*294] in profiting by promoting the lingering illness and early death of Americans of all ages, and vigorously protests the very modest efforts of this agency to insure that the people receive at least some information about the hazards of smoking (under the fairness doctrine). See "Applicability of the Fairness Doctrine to Cigarette Advertising," 9 F.C.C. 2d 921 (1967), and Banzhaf v. FCC, case No. 21285, C.A.D.C., November 21, 1968. n1

 

n1 I would repeat my original wish that broadcasters might have treated this matter through a voluntary sense of responsibility. I regret that they have by now succeeded in what I then phrased as the risk of "forever tainting the good name of American broadcasting."

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.

* * *

FTC Commissioner Elman has estimated that some 300 thousand 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 carriage 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.

 

("Applicability of the Fairness Doctrine to Cigarette Advertising," 9 F.C.C. 2d 921, 959 1967). )

On the other hand, there are many issues regarding this Commission's jurisdictional authority to effectuate today's proposal that were not involved in our earlier decision as to which I would welcome comments from the industry as well as other interested parties.

 


 

DISSENTING STATEMENT OF COMMISSIONER JAMES J. WADSWORTH

 

Even though this matter involves only proposed rulemaking, I must nonetheless dissent to the issuance of the notice adopted by the majority. In so doing, I recognize that were I to join the majority in putting forth the notice, I would not thereby be committed to ultimately casting my vote for or against a definitive ban on cigarette advertising on radio and television.

 

At this point, even to propose administrative action would be unwise in the absence of concrete congressional direction. If and when Congress legislates an absolute ban on the advertising of cigarettes, there will be sufficient opportunity for adoption of implementing rules to conform to the terms of that legislative determination.

 

In addition, if broadcast licensees are to be forbidden to advertise any product on the basis of furtherance of public health, there may well be many other products which might be subjects deserving equal or greater attention. These are matters which the Congress must first decide.

Under the majority proposal, the Commission singles out cigarette advertising -- a subject to which it has already applied its fairness doctrine.

 

I believe that the public should be allowed to make its own choice on the question of purchase and use of cigarettes after listening to all arguments on the subject. The Commission's fairness doctrine ruling has made this opportunity available to them. Parenthetically, this may already have had a degree of effect, reflected in recent reports that the volume of cigarette sales is decreasing.

Should the Congress ban the advertising of cigarettes, the Commission can at that time adopt implementing rules. However, at this point in time, I must dissent to what I consider to be an unreasonable and arbitrary action which might even be arguable as a prejudgment of the very issues which this notice purports to resolve.

 


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