Having popular stars like Yul Brenner and William Talman (the prosecutor who lost to Perry Mason) speak from the grave in televised messages explaining how smoking led to their deaths, or teen star Brooke Shields convincing kids that "people who smoke are real losers" and that smoking makes teens unpopular, were so graphically effective - because of the power of televised images - that they slashed the rate of smoking for the first time in modern history, something even the U.S. Surgeon General's report about smoking and cancer several years earlier could not do.
Moreover, notes Banzhaf, the U.S. Court of Appeals unanimously rejected arguments that the arrangement, which the tobacco companies repeatedly claimed forced them to subsidize messages which demeaned their products and cut into their sales, violated the First Amendment or were otherwise constitutional, and the U.S. Supreme Court refused to even consider the case. Banzhaf v. F.C.C., 405 F.2d 1082 (DC Cir. 1968).
Subsequently, the U.S. Supreme Court affirmed a lower court decision which rejected arguments that even totally banning all cigarette commercials violated the First Amendment, notes Banzhaf, who also participated in that legal proceeding, and whom the Reader's Digest called "The Man Behind the Ban on Cigarette Commercials."
The tobacco industry's attack also seems to ignore generally-accepted psychological principles that plain text and factual warnings are usually not very effective in warning young people, especially since many of them still have trouble comprehending abstract concepts, appreciating the magnitude of risks, and personalizing the dangers, says Banzhaf. Since the primary targets of the educational campaign are young teens and pre-teens, it only makes sense to use messages in a form which have been proven to be effective in communicating with them, he argues.
As an analogy, he suggests a situation in which manufacturers of poisonous household products objected to any requirement that their labels contain a picture of "Mr. Yuk," and insisted instead that the government could mandate only plain text messages like "THIS IS POISONOUS."
Naturally any court would reject such an absurd argument, since a graphic message is the only effective way to reach this targeted audience. The same in true with regard to cigarettes, with children often initiating smoking as young as nine at a time when many can barely read, much less fully comprehend and act upon a complex health messages.
Since more and more countries are now requiring large health warnings on cigarette packs, including many more graphic than those under legal attack in the U.S., and the World Health Organization has specifically recognized the need for graphic health warnings, it's likely that courts will likewise see them as reasonable and appropriate warnings messages about the world's most deadly product, and not as an unreasonable imposition on tobacco companies, Banzhaf predicts.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
Creator, Banzhaf Index of Voting Power
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
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John F. Banzhaf III is a Professor of Public Interest Law at George Washington University Law School [http://banzhaf.net/]