At the Public Health Service's annual Christmas party last year, some of the agency's employees entertained their colleagues by singing their own version of "On Top of Old Smoky":
On top of Old Smoking
A year has gone by
But the smoke we're deploring
Still gets in our eye.
They were lamenting the fact that a full year had passed since the Report of the Surgeon General on Smoking and Health warned that "cigarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action," and that still no such action had been taken. This summer Congress passed a bill requiring that cigarette packages carry the warning "Caution: Cigarette Smoking May Be Hazardous to Your Health," but the same song can be sung at the next Christmas party, and the next one, and the next one.
To hear its sponsors tell it, the new legislation "is a forthright, historic step towards the responsible protection of the health of this nation's citizens" (Senator Warren G. Magnuson, Democrat, of Washington), one that "constitutes a legislative approach in which we can take some degree of pride" (Representative Oren Harris, Democrat, of Arkansas). In fact, however, the bill is not, as its sponsors suggested, an example of congressional initiative to protect public health; it is an unabashed act to protect private industry from government regulation. Behind the facade of a requirement for printing a warning on cigarette packages (which is not expected to deter smoking much), Congress tied the hands of the Federal Trade Commission by forbidding it to proceed with its own plans to apply much more stringent regulations. Had it not been for Congress, the FTC, which is charged with preventing unfair and deceptive trade practices, would have required a warning both on cigarette packages and in cigarette advertising. The effect of the advertising regulation is what the cigarette industry most feared; Congress obliged by forbidding it for at least four years.
In another remarkable provision, the law prohibits state and local governments from taking any action on cigarette labeling or advertising. It is one thing for Congress to prohibit the states from enacting legislation which overlaps and is inconsistent with its own requirements, as in the case of the labeling, but it is a far different thing for Congress to refuse to act, and to prohibit the states from acting, as in the case of cigarette advertising.
The tobacco industry's success at winning from Congress what it wanted while still providing the lawmakers with an opportunity to appear to be all in favor of health was a brilliant stroke. The industry brought it off because the tobacco lobby employed unusually skilled and well-organized strategy; because it hired some of the best legal brains and best-connected people in Washington to help with the fight; because it successfully grafted onto its built-in congressional strength from tobacco-producing states a sufficient number of congressmen to whom the issue was not one of health, or even of the tobacco industry, but one of curbing the powers of regulatory agencies, such as the FTC; and because it succeeded in throwing a heavy smoke screen around the health issue. And finally, it was the industry's good fortune that President Johnson remained aloof from the battle.
The report of the Surgeon General's special advisory committee on smoking and health was instigated at the behest of private health organizations, such as the American Cancer Society, which sought a definitive government position on the accumulating studies pointing to a connection between smoking and disease. The panel of ten scientists established in 1962 to make the study had the approval of the health groups and the tobacco industry, for all parties had been allowed to veto any proposed member. The cigarette industry, it was widely assumed, had been boxed in.
After fourteen months, the panel's report was printed under the security regulations usually reserved for top-secret reports to the National Security Council, and on a Saturday (the stock market was closed) early in January, 1964, it was handed out to reporters locked in the State Department auditorium until the stipulated hour for the report's release. The Surgeon General's panel unanimously found that smoking was related to lung cancer, chronic bronchitis, emphysema, cardiovascular diseases, and cancer of the larynx.
Among those who were ready and waiting for the report was the Federal Trade Commission, which had rejected past requests for action, pending a definitive answer to the health question. Within days after the report was released, the commission announced hearings on proposed new trade regulations for the cigarette industry.
Also ready for the Surgeon General's report was the tobacco industry. Sometime in late 1963, the distinguished Washington law firm of Arnold, Fortas & Porter turned up as counsel to the Philip Morris Company. The Fortas in the firm's title is Abe Fortas, personal counsel and confidant to President Johnson--and later his first choice for the Supreme Court. Faced with the probability that the FTC would move against the companies, the industry formed a committee of lawyers from Arnold, Fortas & Porter and other top Washington firms, one representative of each of the "big six" tobacco companies--R. J. Reynolds, American Tobacco, Brown & Williamson, Liggett & Myers, P. Lorillard, and Philip Morris--and one of the industry's defense lawyers for personal injury suits alleging that smoking had induced cancer. This committee met almost daily, from the time of formation in early 1964 through completion of congressional action on the labeling bill this year. It covered every contingency for the companies: it planned the industry argument in the FTC hearings, it planned a court test of the FTC ruling if that became necessary, and it deeply involved itself in the maneuvering in Congress. Once the issue came before Congress, the lawyers' committee wrote testimony, drafted bills and amendments, served as central casting for witnesses most likely to sell the industry's point of view, and fed to friendly congressmen statements and questions to be asked of witnesses. In gossip-prone Washington there inevitably was speculation on whether Fortas' involvement had anything to do with the conspicuous absence of any mention of the smoking issue in President Johnson's message to Congress making various proposals in the field of public health. It is more likely, of course, that this omission was due to understandable reluctance on the part of the President to take on a bruising fight that would pit him against many members of his own party. Anyway, according to people in the Capitol, when the time came for key votes on the Hill, Fortas was busy on the telephone.
While the lawyers' committee was providing the legal brainwork for the industry, the political expertise and the overt lobbying were supplied by Earle C. Clements, former Democratic representative and senator from Kentucky, former Senate Majority Whip and lieutenant to then Majority Leader Lyndon B. Johnson, and former director of the Senate Democratic campaign committee, which dispenses vitally needed election funds. In 1964, Clements registered as a lobbyist for the big six. A more ideal man could hardly have been found, for not only did Clements have excellent political connections; he was well liked, he was a gentleman, and he was a shrewd master of legislative infighting. Clements is believed to be the one who sold the tobacco companies on the core of their strategy, a strategy which seems now the obvious one because it worked, but which was not so obvious at the time: go to Congress and accept the package label (the least alarming and most inconspicuous one possible) in exchange for protection against advertising requirements and state regulation. The industry would then give the impression of a sweet reasonableness, whereas a rigid position might bring more severe consequences. The label might even be a boon of sorts, providing a new defense in future personal injury cases brought by cigarette smokers.