Federal Cigarette Labeling and Advertising Act of 1965

Kelly A. Moore

Americans expect cigarette packaging and advertisements to include a warning such as "Smoking causes lung cancer, heart disease, emphysema, and may complicate pregnancy." These warnings, however, are a relatively recent development and came about after Congress adopted legislation in the 1960s requiring tobacco companies to inform consumers of the health risks associated with the use of their products. Congress required tobacco companies to place warnings on cigarette packaging beginning in 1965 when it enacted the Federal Cigarette Labeling and Advertising Act (known as the "Original Act,") (P.L. 89–92, 79 Stat. 282), and in print advertising 1969 when it adopted the Public Health Cigarette Smoking Act.

Researchers and statisticians began to suspect a link between smoking and lung cancer as early as 1900. The first medical studies linking smoking to this and other illnesses began to appear in the 1920s. Between 1920 and 1960 over 7,000 studies established a link between smoking and health problems. In 1962, with this ever expanding body of medical research as a backdrop, Dr. Luther L. Terry, the Surgeon General of the U.S. Public Heath Service, convened an advisory committee to examine the issue of the link between smoking and illness.

On January 11, 1964, the advisory committee released its conclusion that "cigarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action." After requesting that the Federal Trade Commission (FTC) postpone acting on regulations it had developed to address the advisory committee's conclusion, Congress enacted the Original Act in 1965. Whereas the FTC had proposed requiring warnings on containers and print advertisements, the Original Act only required such warnings on packaging. The 1969 act, however, went further and required warnings be placed within any and all print advertising of cigarettes. The 1969 act also banned cigarette advertising in any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission.

Congress amended the act again when it adopted the Comprehensive Smoking Education Act of 1984. This law required tobacco companies to place one of the following warnings on cigarette packaging and in print advertisements:

1. "SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy"
2. "SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health"
3. "SURGEON GENERAL'S WARNING: Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight"
4. "SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide"

Congress had two purposes for adopting these statutes—to adequately inform the public of the health hazards of smoking, and to protect the national economy from the potential impact on the cigarette manufacturing industry if each of the fifty states enacted its own packaging and advertisement regulations. The acts achieved the first purpose by making it unlawful to sell or distribute any cigarette unless its packaging displays the appropriate label; the second goal was achieved through the language of Section 1334, which provided that "no requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in accordance with the provisions of this Act."

The second goal was furthered by the Supremacy Clause of the U.S. Constitution, contained in Article 6, clause 2, which provided that "any Thing in the Constitution or Laws of any state to the Contrary notwithstanding," the laws of the United States shall be the supreme law of the land. In McCulloch v. Maryland (1819), the Supreme Court determined state laws that conflict with federal law are without effect under the Supremacy Clause. Subsequent cases, however, have held that there is a presumption against preemption of state police power regulations and that the scope of any such preemption must be narrowly defined.

In the decades since the adoption of the acts, the preemption issue has led to several court cases. In Cipollone v. Liggett Group, Inc. (1992), the Supreme Court addressed the extent to which state law was preempted by the federal acts. In Cipollone, the plaintiff, a woman who ultimately died of lung cancer after years of smoking, sued cigarette manufactures under various state laws. The cigarette manufacturer argued that federal law barred her claims and the Supreme Court agreed with the argument to the extent that state law imposes a "requirement or prohibition based on smoking and health ... with respect to ... advertising or promotion." The Court based its decision on the fact that this was a narrow area of the law Congress had intended the acts to regulate and that the states could not interfere. Federal law, however, did not bar the plaintiff's claims that did not relate to the use of tobacco products.

BIBLIOGRAPHY

U.S. Department of Health and Human Services, report of the Surgeon General. Reducing the Health Consequences of Smoking: 25 Years of Progress. Washington, DC: 1989.

U.S. Department of Health, Education and Welfare, U.S. Surgeon General's Advisory Committee. Smoking and Health 33 (1964).