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Tobacco

Federal Regulation Of Tobacco Advertising And Labeling

In the 1950s, the federal government began to regulate the sale and production of chewing and smoking tobacco because of the growing concern over its adverse effects on the health of consumers. Traditionally, the FTC was the federal agency primarily responsible for the regulation of tobacco products, especially with regard to labeling and advertising. In 1955, the FTC promulgated guidelines that prohibited cigarette advertisements from carrying therapeutic health claims. In 1964, the commission issued a Trade Regulation Rule on Cigarette Labeling and Advertising that strictly controlled the advertising and labeling of tobacco products. The FTC claimed that the failure to warn consumers of the dangers of smoking constituted an unfair and deceptive trade practice under the Federal Trade Commission Act (15 U.S.C.A. § 41 [1994]).

Shortly after the FTC issued its trade regulation rule, Congress intervened by enacting the Federal Cigarette Labeling and Advertising Act (FCLAA) (15 U.S.C.A. §§ 1331 et seq. [2000]), which was more moderate than the FTC regulation and preempted agency action. The FCLAA required that a health warning be conspicuously displayed on all packages and cartons of cigarettes. As originally enacted, the FCLAA required only the warning, "Caution: Cigarette Smoking May Be Hazardous to Your Health." Subsequently, however, this act was amended to require more explicit warnings. Under amendments added in 1984, cigarette manufacturers must use one of the following labels to satisfy the health warning requirement:

SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy.

SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.

SURGEON GENERAL'S WARNING: Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight.

SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide.

The warning labels must also appear on all cigarette advertising, including magazine advertisements and billboards.

In 1986, Congress enacted the Comprehensive Smokeless Tobacco Health Education Act (CSTHEA) (15 U.S.C.A. §§ 4401 et seq.), which requires smokeless tobacco products to carry one of the following warning labels:

"WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER"

"WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS"

"WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES."

NATIONAL CLEAN AIR DEBATE

On April 5, 1994, the Occupational Safety and Health Administration (OSHA) published proposed nationwide indoor air quality regulations that would prevent smoking in all indoor workplaces, including office buildings, government buildings, restaurants, stores, and bars, except in designated smoking areas with separate ventilation systems (59 Fed. Reg. 15,968–16,039). OSHA provided a public comment period followed by public hearings, which were extended a number of times, and finally closed the hearings in January 1996. OSHA also sought post-hearing comments, but by the end of 1997 the administration had not announced when, or whether, it would issue its final rules addressing this controversial topic. The dispute over the OSHA regulations frames the larger debate between advocates and opponents of smoking regulations.

Proponents of the indoor air quality regulations argue that if people are freely allowed to smoke in the workplace, they contaminate the air that nonsmokers breathe, subjecting everyone around them to severe health consequences. Proponents cite decades of scientific and medical studies that demonstrate the health effects of environmental tobacco smoke (ETS). They refer to studies that show that ETS causes lung cancer and heart disease in adults and various respiratory disorders in children.

Various government agencies support OSHA's proposed regulations. The U.S. SURGEON GENERAL has published numerous reports warning of the dangers of ETS. The LABOR DEPARTMENT reported to OSHA that 83 percent of all worker health complaints related to indoor air quality are linked to ETS. Since 1992, the U.S. ENVIRONMENTAL PROTECTION AGENCY has classified ETS as a known Group A human carcinogen. Various other medical and research organizations support the proposed regulations as well. The National Academy of Sciences has warned of the dangers of ETS. A 1995 study published in the Journal of the American Medical Association found that nicotine levels in the air at work sites with no restrictions on smoking were triple the amount considered hazardous by U.S. regulatory standards.

Proponents of the regulations are concerned for the health of the non-smokers, but they also cite many economic reasons for instituting the indoor air quality regulations nationwide. For example, employers must pay more for HEALTH INSURANCE for their employees when their employees smoke or are exposed to ETS. Employers also suffer productivity losses when their employees are sick or disabled due to smokingrelated illnesses. Smoking also causes premature deaths in employees, which results in a productivity loss to the employer. When smoking is allowed in the workplace, there is more trash, such as cigarette butts, to clean up. Proponents of the smoking regulations also argue that computer equipment, carpets, furniture, and other furnishings need more maintenance and must be replaced more frequently when smoking is permitted in the workplace. Finally, employers who are forced to choose between the rights of smoking workers and the rights of nonsmoking workers fear that they will be liable for nonsmoker injuries. For example, under the Americans with Disabilities Act, 104 Stat. 327, if ETS prevents a worker from being able to perform her job, the employer may be responsible for allowing the ETS in the workplace.

Opponents of the indoor air quality regulations include restaurant, bar, and hotel owners, trade associations, cigarette manufacturers, smokers, and those who seek to protect individual freedoms from government regulation. Activist organizations that promote smokers' rights include the National Smokers Alliance, the United Smokers Association, and the American Puffer Alliance. These groups point out that their numbers are large; in fact, there are approximately 52 million Americans who do not support the crusade to stop smoking. Further, many of these groups stand for principles of tolerance, fairness, and inclusion and seek to promote accommodation of the wishes of smokers as well as nonsmokers.

Opponents of the regulations argue that exposure to ETS really is not as dangerous to nonsmokers as many anti-smoker groups contend. In fact, the opponents have scientific research to support their theories. In addition, they attack contrary studies as being statistically flawed and claim that any conclusions showing an association between ETS and disease are really due to confounding variables in the studies. Other opponents, particularly restaurant, bar, and hotel owners, reject the proposed workplace smoking ban as overly restrictive and likely to lead to a serious financial loss to business owners. Some opponents of the regulations focus on the fact that their freedom to smoke is a liberty interest and a privacy right that is being impinged.

A large opponent of the proposed indoor air quality regulations is the Center for Indoor Air Research (CIAR), a nonprofit, independent research organization founded in 1988 by three large tobacco companies. CIAR has been instrumental in providing research results to refute those that suggest that ETS is harmful. A 1992 study conducted by CIAR concluded that moderate amounts of smoking indoors will not interfere with acceptable air quality. CIAR also conducted a study to determine the quantities of ETS that people are actually exposed to in the workplace. Finding that most people are exposed to very little ETS on the job, CIAR concluded that the federal government does not need to regulate smoking in the workplace. Another CIAR study that examined workplace smoking policies, ventilation, and indoor air quality concluded that the role ETS plays in contributing to poor indoor air quality is very minor, if it plays any role at all. The findings from this study show that OSHA's proposal to require separate ventilation systems for smoking areas is unnecessarily restrictive. Another CIAR study concerning indoor air quality, published in 1992, and criticized by a congressional subcommittee in 1994 as being flawed due to falsified or fabricated data, concluded that the levels of ETS in "light smoking" rooms were very similar to the levels of ETS in "nonsmoking" rooms within hundreds of different office buildings.

In addition to quoting studies conducted by CIAR and other tobacco-industry-funded organizations, opponents of the OSHA regulations cite to studies that were not funded by the tobacco industry and thus do not convey the appearance of bias. For example, a 1995 study by the CONGRESSIONAL RESEARCH SERVICE (CRS), the research arm of the LIBRARY OF CONGRESS, found no statistically significant correlation between ETS and lung cancer.

Restaurant and bar owners nationwide fear that the regulations will cause a decline in their business and result in serious financial consequences for them. In fact, these groups can already demonstrate the validity of their fears: studies of restaurants in cities and states that already have smoking bans have shown that these businesses have suffered an average decline of 24 percent in sales.

Others argue that banning smoking in the workplace is an infringement of personal rights. Specifically, they argue that workplace smoking bans violate the right to privacy and liberty interests protected by the Constitution. Opponents of the proposed nationwide ban can cite to judicial decisions that hold that federal regulations imposed on smoking employees must have a rational basis related to on-the-job performance. (In Grusendorf v. Oklahoma City, 816 F.2d 539 [10th Cir. 1987], a one-year smoking ban for firefighter trainees was upheld.) Other courts have held that employers cannot prohibit all smoking on their property if a ban violates a collective bargaining agreement (Johns-Manville Sales Corp. v. International Ass'n of Machinists, 621 F.2d 756 [5th Cir. 1980]). In addition, several states have enacted "smokers' rights laws" that stop employers from regulating off-duty smoking habits of employees and from discriminating against employees or job applicants based on their smoking habits outside the workplace. Opponents of OSHA's proposed indoor air quality regulations argue that employers likewise have no right to impinge upon their employees' freedom to smoke while at work.

Smokers also argue that their decision to smoke and the risks involved are no different from other personal lifestyle choices. If smoking is banned in the workplace, then there is no limit as to what other risky, but legal, behaviors may be banned in the workplace. For example, employers could prohibit the consumption of fatty foods. The crux of the issue, argue opponents, is that smoking is a legal activity and smokers should be left alone in deciding which risks they want to take in their lives.

CROSS-REFERENCES

Air Pollution; Employment Law; Environmental Law; Privacy; Tobacco.

The CSTHEA also requires all manufacturers, packagers, and importers of smokeless tobacco to provide the secretary of the HEALTH AND HUMAN SERVICES DEPARTMENT with a list of all ingredients used in the manufacture of the product, as well as the quantity of nicotine contained in the product. The act further requires the secretary to report biennially to Congress with a summary of research on the health effects of smokeless tobacco, information about whether its ingredients pose a health risk, and recommendations for legislative or administrative action. Finally, the act requires the FTC to report biennially to Congress about the state of smokeless tobacco sales, advertising, and marketing practices and also to make recommendations for legislative or administrative action. Amendments to the FCLAA require similar reports on smoking tobacco products.

In 1967, the FCC decided to act upon citizen complaints it had received regarding broadcast cigarette advertising. The FCC implemented a rule requiring any station that broadcasts cigarette advertising to also air public service announcements prepared by various health organizations in an effort to inform listeners and viewers of the dangers of smoking. This FCC regulation was challenged in the courts but upheld under the FAIRNESS DOCTRINE, which requires broadcasters to provide a balanced representation and fair coverage of controversial issues of public importance (Banzhaf v. FCC,405 F.2d 1082 [D.C. Cir. 1968]).

A few years later, Congress also intervened on the issue of broadcast advertising, electing to ban all television and radio advertising of cigarettes. Congress enacted the Public Health Cigarette Smoking Act of 1969 (Pub. L. No. 91-222, § 6, 84 Stat. 87, 89), which was codified as an amendment to the earlier FCLAA. The new regulations took effect in 1971 and prohibited all advertising of cigarettes and small cigars via electronic communication, subject to the jurisdiction of the FCC (15 U.S.C.A. § 1335). The tobacco companies challenged the constitutionality of the Public Health Cigarette Smoking Act, but it was upheld by the courts (Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 [D.D.C. 1971], aff'd mem., 405 U.S. 1000, 92 S. Ct. 1289, 321 L. Ed. 2d 472 [1982]). Beginning in 1986, Congress also made it illegal to advertise smokeless tobacco on any medium of electronic communication that is subject to the jurisdiction of the FCC (15 U.S.C.A. § 4402(f)).

The FCLAA, as amended by the Public Health Cigarette Smoking Act of 1969, did not work wholly to the detriment of the tobacco industry. Some legal commentators argue that it actually benefited the tobacco companies. The warning labels that were required to help inform consumers of the health risks associated with tobacco worked to provide the manufacturers with a shield against TORT liability. In fact, before the matter was taken up by the U.S. Supreme Court in 1992, several circuit courts held that the FCLAA had preempted (previously addressed) state claims against the tobacco companies based on a failure-to-warn legal theory (Pennington v. Vistron Corp., 876 F.2d 414 [5th Cir. 1989]; Roysdon v. R. J. Reynolds Tobacco Co., 849 F.2d 230 [6th Cir. 1988]; Palmer v. Liggett Group, 825 F.2d 620 [1st Cir. 1987]; Stephen v. American Brands, 825 F.2d 312 [11th Cir. 1987]).

In CIPOLLONE V. LIGGETT GROUP, 505 U.S. 504, 112 S. Ct. 2608, 120 L. Ed. 2d 407 [1992], the U.S. Supreme Court held that the FCLAA had preempted state law damage. In effect, because tobacco companies were federally mandated to include warning labels on their products, they were essentially immune from product-liability suits. The Supreme Court held, however, that the FCLAA did not PREEMPT claims based on STRICT LIABILITY, negligent design, express WARRANTY, intentional FRAUD and MISREPRESENTATION, or conspiracy. This means that companies could be sued for knowingly withholding or falsifying information about health risks associated with the use of tobacco products.

The tobacco industry also benefited indirectly from the FCLAA's ban on advertising because when television advertising ceased, so did the antismoking public service messages that broadcasters were previously required to air. In fact, Judge Skelly Wright, the author of the dissenting opinion in Capital Broadcasting Co., noted that the Public Health Cigarette Smoking Act of 1969 was a legislative coup on the part of the tobacco industry. Wright accurately predicted that the loss of the broadcast antismoking messages would result in a rise in cigarette consumption.

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