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
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
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
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
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
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
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
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
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
n16
n17
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
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
"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
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." (
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
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.
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.,
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.