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© 2007 American Public Health Association
DOI: 10.2105/AJPH.2006.097006
PUBLIC HEALTH THEN AND NOW |
Jennifer K. Ibrahim is with the Department of Public Health at Temple University, Philadelphia, Pa. Stanton A. Glantz is with the School of Medicine and the Center for Tobacco Control Research and Education at the University of California, San Francisco.
Correspondence: Requests for reprints should be sent to Jennifer K. Ibrahim, PhD, Temple University, 1700 N Broad St, Rm 304D, Philadelphia, PA 19122 (e-mail: jibrahim{at}temple.edu).
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ABSTRACT |
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 TOP ABSTRACT INTRODUCTIONTHE RISE OF TOBACCO...TOBACCO INDUSTRY TACTICS AGAINST...CONCLUSIONReferences |
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Extensive research has demonstrated that public education through media campaigns is an effective means to reduce smoking prevalence and tobacco consumption. Aggressive media campaigns that confront the tobacco industry’s deceptive practices are most effective and are therefore a prime target for attack. The tobacco industry has attacked public tobacco control media campaigns since 1967, when the first public tobacco control media advertisements ran.
Through studying tobacco control media campaigns in Arizona, California, Florida, Massachusetts, Minnesota, and Oregon, and of the American Legacy Foundation, we identified industry strategies to prevent a campaign’s creation, limit the target audience and the content of the messages, limit or eliminate the campaign’s funding, and pursue litigation against the campaigns.
Tobacco control advocates must learn from the past and continue to confront the tobacco industry and its third-party allies to defend antitobacco media campaigns or, despite evidence of their effectiveness, they will be eliminated.
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INTRODUCTION |
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TOPABSTRACTINTRODUCTIONTHE RISE OF TOBACCO...TOBACCO INDUSTRY TACTICS AGAINST...CONCLUSIONReferences |
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The tobacco industry first encountered antismoking media messages in significant volume in 1967 when Action on Smoking and Health filed a complaint with the Federal Communications Commission under its fairness doctrine1 that television and radio stations should provide free time for antismoking advertising when they aired paid cigarette advertising. As a result, antismoking messages received about $75 million ($378 million in 2005 dollars) in free airtime between 1967 and 1970,2 leading to an immediate drop in cigarette consumption despite continued aggressive tobacco advertising (Figures 1
and 2; Table 1).2,3 The tobacco industry recognized the need to stop anti-smoking ads and approached Congress with a proposal to remove all cigarette advertising on television and radio effective January 1970; this action was followed by an increase in cigarette consumption2,3 and a decrease in the tobacco industry’s advertising costs.4
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The tobacco industry eliminated tobacco control advertisements at the national level in 1970. There was no large-scale tobacco control advertising until 1984, when Minnesota began the first state-funded, paid anti-smoking media campaign. Several states, including Arizona, California, Florida, Massachusetts, and Oregon, created statewide tobacco control media campaigns (Table 2
), and in February 2000, the American Legacy Foundation launched its "truth" campaign, which represented the return of a national antismoking media campaign.5
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These early media campaigns paved the way for subsequent campaigns and provided lessons that were incorporated into the Centers for Disease Control and Prevention’s Best Practices for Comprehensive Tobacco Control Programs, which recommended that each state spend between $1 and $3 per capita to counter the pro-tobacco influences and to educate the public.6 More specifically, the Centers for Disease Control and Prevention recommended that a comprehensive tobacco control program include components on community; chronic disease; school-based education to prevent tobacco use and addiction; enforcement of tobacco control laws, including minors’ access to tobacco products and smoking in public places; statewide coordination with local communities; countermarketing media campaigns; tobacco cessation programs; surveillance and evaluation of tobacco-related behaviors, attitudes, and health outcomes; and administration and management.6 The tobacco industry has historically used campaign contributions7–10 and lobbying, through front groups and third-party allies,11–14 to influence the development of, voting on, and implementation of tobacco-related legislation and tobacco control programs. Tobacco control media campaigns are often the most visible and wide-reaching component of a comprehensive program, and the tobacco industry has long recognized the threat they pose and has worked to prevent, weaken, or destroy these campaigns. Despite evidence of effectiveness,5,15–23 tobacco control media campaigns have proven difficult to sustain.
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THE RISE OF TOBACCO CONTROL MEDIA CAMPAIGNS |
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TOPABSTRACTINTRODUCTIONTHE RISE OF TOBACCO...TOBACCO INDUSTRY TACTICS AGAINST...CONCLUSIONReferences |
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As of June 2006, there was no comprehensive database of state tobacco control media campaigns. Therefore, although there are several other tobacco control media campaigns that may have similar experiences, we have selected Minnesota, California, Massachusetts, Arizona, Florida, Oregon, and the American Legacy Foundation to illustrate the rise and fall of tobacco control media campaigns in the United States. In considering these cases, it is important to keep in mind the chronology of the creation of the media campaigns. Whereas the Minnesota campaign initially focused on health messages explaining the dangers of smoking,24 subsequent campaigns shifted messages to focus on the actions of the tobacco industry.5,23,25
Minnesota
The first statewide tobacco control media campaign was developed in Minnesota.14,26 Beginning in 1982, Minnesota’s commissioner of health convened a committee to recommend strategies to promote nonsmoking. In 1984, the committee produced the Minnesota Plan for Nonsmoking and Health, which proposed a statewide program to prevent youth smoking, encourage cessation, and promote clean indoor air. The plan included a youth smoking-prevention media campaign. The campaign started out exclusively with television ads focused on promoting a tobacco-free lifestyle, but it expanded to include billboards and radio spots.24 Minnesota implemented the media campaign in May 1986, with a total operating budget of $176 000 ($313 620 in 2005 dollars).14,26
California
California’s Tobacco Control Program was created in 1988, following the passage of Proposition 99, a voter initiative that increased the state excise tax on cigarettes by $0.25 a pack and allocated 20% of the revenues to a health education account to reduce smoking.25,27 Administered by the Department of Health Services, the media campaign was designed to promote "a social norm of not accepting tobacco"28(p1) and included television, radio, print, billboards, and transit, with messages on the tobacco industry, environmental tobacco smoke, addiction, cessation, cigarette additives, smokeless tobacco, general health, pregnancy, and prevention among youths.29 In April 1990, the media campaign first aired with an annual budget of $14.4 million ($21.52 million in 2005 dollars; C. M. Stevens, MSW, California Department of Health Services, oral communication, October 15, 2002).
Massachusetts
In November 1992, Massachusetts’ Tobacco Control Program was created with the passage of Question 1,30 a statewide ballot initiative that raised the excise tax on cigarettes by $0.25 a pack and on smokeless tobacco products by 25% of its wholesale price and dedicated the revenue to tobacco education and prevention programs.31–34 The media component of the Massachusetts program emphasized the hazards of tobacco use and environmental tobacco smoke and preventing youths from starting to smoke.33 The campaign began in October 1993 with ads on television, radio, newspaper, and billboards, financed with a budget of $14 million ($18.9 million in 2005 dollars).35
Arizona
On November 8, 1994, voters in Arizona passed Proposition 200, thereby increasing the cigarette excise tax by $0.40 a pack; 23% of the new revenues were dedicated to tobacco prevention and education programs.36 The media campaign focused on preadolescents and adolescents, pregnant women, and the partners of pregnant women with messages focused on preventing tobacco use in any form.36–38 Arizona’s media campaign began in December 1995 with a budget of $5.5 million ($7.05 million in 2005 dollars).36
Oregon
In 1996, Oregon passed Measure 44, a voter initiative that increased the state’s tobacco tax from $0.30 to $0.68 per pack and dedicated 10% of the revenues to tobacco control education.39,40 The messages of the media campaign, which included radio and television ads, billboards, and public events, focused on the importance of tobacco prevention efforts, the dangers of tobacco use, the effects of environmental tobacco smoke, and the benefits of quitting. Oregon’s media component began in March 1998 with a budget of $4.56 million ($5.55 million in 2005 dollars).39
Florida
Florida’s tobacco control program was the first program created as part of a legal settlement with the tobacco industry.41,42 Florida’s lawsuit against the tobacco industry for smoking costs imposed on the state was settled on August 25, 1997 (before the Master Settlement Agreement, discussed below). The tobacco industry agreed to pay $11.3 billion to the state of Florida over the first 25 years and to provide $200 million ($243.4 million in 2005 dollars) for a 2-year tobacco pilot program designed to reduce youth tobacco use.43 Florida’s media campaign focused on maintaining tobacco-free youths, informing youths of the risks of environmental tobacco smoke and the addictive nature of tobacco, and demonstrating that peer pressure to use tobacco can be overcome.42,44 The "truth" campaign began in April 1998 with print and broadcast advertisements and expanded in June 1998 with billboard advertisements. Florida’s media campaign was initially funded at $26 million ($31.15 million in 2005 dollars).42
The American Legacy Foundation
On November 23, 1998, 46 states’ attorneys general signed the Master Settlement Agreement (MSA) with the tobacco industry that resolved most state litigation against the tobacco industry. The settlement included the creation of a national public health foundation (later named the American Legacy Foundation), which was established with $250 million paid over the course of 10 years, and a national public education campaign, established with $1.45 billion over the next 5 years. The American Legacy Foundation was designed to reduce tobacco use and support tobacco education programs. The funds from the education account could only be used for "public education and advertising regarding the addictiveness, health effects, and social costs related to the use of tobacco products and shall not be used for any personal attack on, or vilification of, any person (whether by name or business affiliation), company, or governmental agency, whether individually or collectively."45(p37–38)
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TOBACCO INDUSTRY TACTICS AGAINST MEDIA CAMPAIGNS |
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TOPABSTRACTINTRODUCTIONTHE RISE OF TOBACCO...TOBACCO INDUSTRY TACTICS AGAINST...CONCLUSIONReferences |
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Tobacco control media campaigns, particularly those that include messages that denormalize the tobacco industry, pose a major threat to the tobacco industry1,15,46–48 and are therefore a major target for attack. As health advocates modified their approaches to educating the public about the dangers of smoking, environmental tobacco smoke, and the practices of the tobacco industry, the tobacco industry also intensified its efforts to stop or reduce the effectiveness of these campaigns.14,25,26,49,50 Although all of the major media campaigns have encountered at least 1 of the strategies outlined, Minnesota served as a testing site for the tobacco industry’s strategies because it was the first state (in 1984) to develop a statewide tobacco control media campaign.14,26
Prevent the Creation of Media Campaigns
Whenever possible, the tobacco industry works to prevent the creation of media campaigns.25,26,36 In Minnesota, the tobacco industry used political connections to monitor the development of the state’s media campaign, seeing the 1984 Minnesota Plan for Nonsmoking and Health24 as "a revolutionary attack on our industry."51(p1) These connections included informal contacts with members of the technical advisory committee responsible for the implementation of the plan. The tobacco industry hoped that by monitoring the development of the Minnesota plan, they would be able to reverse any progress that could occur.26 After monitoring the program, the tobacco industry realized that there was enough support for the Minnesota plan that they needed to take additional steps. Therefore, they created their own, competing campaign and then argued that the state campaign was a waste of taxpayer funds.
The tobacco industry also attempted to prevent the creation of California’s tobacco control media campaign in 1989 while the California legislature was creating the implementing legislation for Proposition 99.25,49 According to the political editor of the California Journal in 1989, the media campaign "was the main issue because it was that component that bothered them [the tobacco industry] the most. I mean the tax was the tax, there was nothing they could do about it, but the notion that Californians would be educated and that there would be a specific media component to it was what terrified them."25(p113) Despite winning support from some powerful legislators, including the Speaker of the Assembly, who questioned the use of this new stream of revenue for a large and untested media campaign,52 public health advocates mobilized to protect the media campaign.25,49,50
Allege Waste of Limited State Resources
A second way to defeat media campaigns is for the tobacco industry to create similar programs and claim that a state-run program is a waste of taxpayers’ dollars. The tobacco industry used its youth smoking prevention programs to argue against public funding for youth smoking prevention programs,26 improve relations with government entities,53 and shift the blame for youth smoking away from the industry.54 In 1984, the tobacco industry recognized the potential of Minnesota’s media campaign55–57 and introduced its own youth education campaign, Helping Youth Decide, in an attempt to delegitimize the significance of the Minnesota Plan for Nonsmoking and Health.56,58 Whereas the Minnesota plan focused on educating youth in the school system, Helping Youth Decide targeted parents about how to talk with youths about not smoking.59 Helping Youth Decide allowed the tobacco industry to compete with the state’s youth smoking prevention messages and to claim that Minnesota’s media campaign was duplicative and a waste of limited resources.55 During the development and implementation of Helping Youth Decide, the tobacco industry intensified its campaign contributions and lobbying26 to gain favor with elected officials.9,27
Similarly, Philip Morris introduced "Think. Don’t Smoke" in December 1998,60 1 month after the execution of the MSA, which included a national public education component and required the tobacco companies to implement youth smoking prevention programs.45 Philip Morris’s program stressed the notion of responsible parenting. "Think. Don’t Smoke" was discontinued in 2002, 2 years after the start of the American Legacy Foundation’s successful "truth" campaign.60
In 1999, Lorillard also launched a youth smoking prevention program called "tobacco is whacko if you’re a teen."60 According to minutes from a September 29, 1998, youth smoking prevention meeting among Lorillard, RJ Reynolds, Philip Morris, and Brown and Williamson executives, there were ongoing discussions about the creation of tobacco industry–controlled youth smoking prevention programs: an industry-sponsored program should "be comprehensive . . . (access, peer pressure, parental influence) . . . be ongoing . . . be industry owned—i.e., in light of various problems presented if a third party’s program is funded, the Industry should create and implement its own program . . . be candid . . . be provable . . . be beneficial to the industry—i.e., there is nothing wrong with the Industry receiving some credit for doing a ‘good thing’ and it ought to receive some."61(p2–3) Previous studies have reviewed the impact of industry-administered youth tobacco prevention programs and have determined that these programs are not effective in preventing or reducing youth smoking.5,56,60
The tobacco industry also worked to divert states’ MSA funds to ineffective programs.62 Philip Morris and Brown and Williamson endorsed prevention programs that focused on "positive youth development" instead of the deceptive practices of the tobacco industry.63(p3) In particular, the tobacco companies were working to secure states’ commitment of MSA dollars to the life skills training program, which used a broad school-based drug prevention approach despite the fact that extensive research funded by the industry indicated that the program was not effective in preventing youth smoking.62
Claim Fiscal Crises and Use Political Allies
A third approach to destroying media campaigns is through claims of a fiscal crisis, regardless of the claim’s validity. The combination of necessary shifts in funding to balance state budgets and shifts in funding on the basis of a lack of efficacy are 2 prime tactics the tobacco industry and its political allies use to eliminate media campaigns. Although the tobacco industry pursues cuts to comprehensive tobacco control programs, media campaigns are most visible and are therefore a threat and prime target. Furthermore, the tobacco industry is particularly aggressive and consistent in opposing effective media campaigns because, unlike tax increases, which are one-time legislative battles that are won or lost, fights over the funding levels and content of media campaigns are an ongoing battle.
Minnesota provides a good example of the way the tobacco industry implemented the use of fiscal crisis as a means to stop media campaigns. The tobacco industry spent an average of $63 000 per year for lobbying in Minnesota between 1980 and 1985, but it spent an average of $230 000 per year while the first media campaign was fully operational (1987–1992).26 Health advocates did not act,14,26,50 and these investments paid off for the tobacco industry when the Minnesota legislature cut the tobacco control program’s budget by one third, from $1.5 million to $1 million in 1990.64 Although Governor Arne Carlson (R), known to have ties with the tobacco industry,26,65,66 claimed that cuts to the media campaign were because of fiscal crisis, the Minneapolis Star Tribune reported, "even by the Carlson administration’s own calculations, the state will be sitting in a sizable nest egg at the end of the two-year budget cycle that runs until June 1995."67
Regardless of the true presence of a budget crisis, the fact remains that there are always more demands on a state budget than there are funds available, so encouraging other interest groups to go after tobacco control dollars became a well-established strategy for the tobacco industry. California provided the first example of this tobacco industry tactic. In a 1990 memo, Terry Eagan from the government affairs division of Philip Morris USA wrote to Roger Mozingo in the state government relations division of RJ Reynolds:
The tobacco industry has decided that the timing is excellent for an attempt to divert money from the antismoking media campaign into other programs that are doomed to suffer because of the current fiscal crisis . . . . Strategy sessions on this issue resulted in the conclusion that it is important that the tobacco industry not be identified as an instigator of any attempt to encourage special interests to seek re-direction of the media money to other programs.46(p2–3)
In an April 1990 memo from Kurt Malmgren, senior vice president of state activities for the Tobacco Institute, to Samuel Chilcote, president of the Tobacco Institute, Malmgren spells out a list of strategies to "meet our goal of eliminating Prop 99 media money," including to:
encourage the California legislature to intervene; cooperate with minority, business, and other groups in developing their opposition to the advertising program; convince Health Services Director Kizer to pull or modify the current advertisements; encourage the Governor to intercede against the campaign.68(p1)
The tobacco industry was hoping to win influence over elected officials, bureaucrats, and the business community. In California, it was the overt pressure on legislators in the form of tobacco industry campaign contributions that drew public attention to threats to the media campaign’s funding, which in turn pressured legislators to leave the funding intact.25
Massachusetts provides another example of the strategy of using budget cuts to eliminate a media campaign. The campaign first used variations of the notion of truth and outrage, featuring startling statistics on the morbidity and mortality caused by tobacco use and depicting the manipulation and cynicism of the tobacco industry to recruit young smokers, messages that contributed to reduced smoking in Massachusetts.35,69 Funding for Massachusetts’s tobacco control program quickly dwindled from $54 million in 2000 to $44 million in 2001. Although funding increased to $48 million in 2002, it was quickly reduced midyear to $34 million70 and finally cut to $5.7 million in 2003.71 Within the tobacco control program, the media campaign took the hardest hit of all the cuts, receiving nothing in 2003 after receiving $20 million in 2000.70,71 The tobacco industry has worked since the inception of Massachusetts’ tobacco control program to divert resources away from the program,72 and funds for the program continued to decline as tobacco industry lobbying expenditures in Massachusetts continued at the same rate through 2001.73 In Arizona, the tobacco industry used its political allies to advance claims of fiscal crisis through the tobacco control program’s oversight committee and in the legislature.
The Arizona state legislature used HB 2275,74 the implementing legislation for Proposition 200, to restrict funding for the Arizona Tobacco Education and Prevention Program from the $27 million and $29 million estimated from the tobacco tax for fiscal years 1996 and 1997, respectively, to $10 million for fiscal year 1996 and $15 million for fiscal year 1997; the remaining $37 million intended for anti-tobacco education remained in a reserve account that could be used after July 1, 1997.37 HB 2275 included language that would cap expenditures for the tobacco control program for the first 2 years of the programs’ existence with excess funds being placed into a reserve account; after 2 years, the reserve funds could be used for tobacco control efforts and the full 23% allocation as mandated from Proposition 200 would be available. During this time, Senate President John Greene (R, Phoenix) had accepted political contributions from the tobacco industry. The funds available for the media campaign were reduced because of the caps on tobacco control spending and a larger number of programs seeking funding.37
A representative who was a public health ally introduced several pieces of legislation to remove the caps and was successful in April 1997. Not only were the caps removed but the missing funds were backfilled for fiscal years 1996 and 1997. It was also in 1997 that Governor Fife Symington (R), who had accepted tobacco industry contributions, waged a campaign to divert $34.7 million from the tobacco control program to build a state hospital; the tobacco control media campaign drew the most attention from the public and tobacco control interests.37 As a result of a swift response from tobacco control advocates,50 Governor Symington’s efforts were unsuccessful.
In Florida, major cuts were made to the tobacco control media campaign in 1999. Despite the program’s success at reducing tobacco use and popularity,16,20,21 the Florida house appropriations chair, who had accepted campaign contributions from the tobacco industry,42 called for reduced funding of the program.75 This sentiment was echoed by other members of the legislature.76–78 In April 1999, the house and the senate agreed to give the tobacco program $45.2 million for 1999–2000, representing a 36% reduction in funds from the previous year, in which the program received $70.5 million. In May 1999, Governor Jeb Bush (R) cut the program further, providing only $38.7 million,41 without any opposition from health advocates.50 Following the cuts in funding, Governor Bush’s administration dismantled the program by laying off staff members and youth workers and reorganizing its administration across several departments. Although cuts were made to the overall program, the media campaign by far drew the greatest attention from the tobacco industry and its allies.42
Oregon legislators also used a budget crisis as the justification for defunding the state’s tobacco control program.39 Beginning in 2001, legislators, led by Senator Jackie Winters (R, Salem), who was also vice president of tobacco-industry ally Oregon Restaurant Association, cut funding for the tobacco control program from the budget and put the appropriation into a bill that would preempt local tobacco control laws, in essence forcing legislators who wished to fund tobacco control efforts to also allow preemption to pass.79 Although this effort (House Bill 3953) was unsuccessful, Senator Winters was closely involved with successful cuts to tobacco control funding in 2003.80
Impose Funding Time Limits
In addition to working to eliminate existing funding for other groups’ media campaigns, the tobacco industry also places restrictions on the period for their own campaigns, as was seen in Florida’s and the American Legacy Foundation’s campaigns. In Florida, the settlement with the tobacco industry explicitly stated "the Pilot Program will commence upon Final Approval of this Settlement Agreement and last for a 24-month period following such date."43 Similarly, in the 1998 Master Settlement Agreement, the national public education funding was limited to 5 years.45 Hence, once these campaigns were up and running, funding would cease.
It is also important to recognize the impact of inflation on tobacco control funding. Even if states maintain funding levels for media campaigns at a portion of cigarette taxes, the effect of inflation slowly erodes the value of a dollar, limiting the scope and reach of such educational campaigns. Therefore, as states budget for media campaigns, it is important for them to compensate for inflation.
Limit the Audience of the Media Campaign
When the tobacco industry cannot destroy a campaign, it works to weaken the program by watering down the message or limiting the audience so that the population reached is minimal or even transitional, as is the case with pregnant women. To accomplish this goal, the tobacco industry has incorporated restrictive language in settlements, specifically with the state of Florida and the American Legacy Foundation, attempting to control the content of the campaigns, as well as working with elected officials during the design phase of the media campaigns to create small target audiences, which was the case in Arizona.
Florida’s Tobacco Pilot Program provides an example of the industry restricting the message of the media campaign. By including language in the settlement stating that the money be used for "media, educational and other programs directed to the under-age users or potential underage users of tobacco products,"43 the tobacco industry sought to limit the scope of the campaign to children and adolescents.
The target audience and message of the media campaign were severely limited in Arizona as well. The governor and senate president, both recipients of tobacco industry contributions,36 worked to weaken Arizona’s Tobacco Education and Prevention Program through the composition of the Tobacco Use Prevention Advisory Committee, which provided oversight for the tobacco control program. The implementing legislation for Proposition 20074 required that the advisory committee be composed of the director of the Arizona Department of Health Services and other individuals appointed by the governor, the president of the senate, and the speaker of the house. The governor’s appointees were from the Arizona Retailers Association and the Golden Eagle Distributors Association, both tobacco allies,37 and the senate president appointed 2 senators who had accepted tobacco industry contributions.36 As a result of the tobacco-related interests on the committee, the audience of the campaign was limited to "pre-adolescents and adolescents, pregnant women and their partners."38
Given limited resources, this was not the most efficient use of funds, because only a small fraction of the US population is pregnant at any given time (about 104 women per 1000 women, about 5% of the population81) and children form a much smaller group than adolescents. A media campaign targeted at adults can also appeal to youths, and the fact that adults serve as role models for youths means that an adult-focused media campaign would indirectly target youths. Limiting tobacco control programs specifically to children and adolescents is a common tobacco industry approach when complete destruction of the program is not possible, because it reduces the size of the target audience.36
Restrict the Message of the Media Campaign
California’s tobacco control media campaign was the first example of the tobacco industry attempting to limit the content of the campaign by working through political allies. In 1996, the Department of Health Services, under tobacco-friendly Governor Peter B. Wilson (R), informed the administrators of the media campaign that the following 4 terms were no longer allowed in the content of the campaign: "tobacco industry," "profit," "nicotine addiction," and "lies."25 The restriction on the campaign’s messages, coupled with a new advertising agency, resulted in the production of only 1 ad in 1996, focused on youths’ access to tobacco (C. M. Stevens, MSW, California Department of Health Services, oral communication, October 15, 2002).82 The experience with California provided the tobacco industry with an opportunity to see the damaging effects of a media campaign focused on tobacco industry practices and therefore to develop strategies to prevent or combat these messages.
The tobacco industry sought to formalize restrictions on media campaign content in Florida through the inclusion of a "vilification clause" in its 1997 settlement with the state of Florida.83 The settlement stated that the funds provided in the settlement could only be used "for general enforcement, media, educational and other programs directed to the underage users or potential underage users of Tobacco Products, but shall not be directed against the tobacco companies or any particular tobacco company or companies or any particular brand of Tobacco Products"43 (emphasis added). Within the first year of the campaign, the vilification clause in Florida was removed when, in September 1998, the state of Texas settled its lawsuit against the tobacco industry83 without a vilification clause.84 The Florida settlement’s "most favored nation" clause required that it would benefit from subsequent settlements that were more favorable than its own.43
Rather than learning from the Florida experience, the attorneys general who negotiated the MSA agreed to include a vilification clause83 in the MSA stating that the educational program created by the MSA "shall be used only for public education and advertising regarding the addictiveness, health effects, and social costs related to the use of tobacco products and shall not be used for any personal attack on, or vilification of, any person (whether by name or business affiliation), company, or governmental agency, whether individually or collectively."45(p37–38) Although the vilification clause did not restrict the messages of the American Legacy Foundation’s media campaign, it did result in significant legal battles.83
Freedom of Information Requests to Media Units
The tobacco industry has historically used information requests to bombard tobacco control efforts and delay or diffuse progress on reducing tobacco consumption.11,85 The tobacco industry used this tactic during the 1990s in its assault on the ASSIST program, a large-scale intervention trial funded by the National Cancer Institute, in several states.85,86 Similarly, progress in making new ads in California was virtually halted for months in 2002 while staff members worked to produce evidence requested by the tobacco companies in an unrelated lawsuit (C. M. Stevens, MSW, Tobacco Control Section, California Department of Health Services, oral communication, October 15, 2002).83
Pursue Litigation to Halt Media Campaigns
Since the beginning of the tobacco control media campaign in California, the tobacco industry has entertained using legal means to halt media campaigns.83 A few days after the California media campaign launched in 1990, Kurt Malmgren, senior vice president of state activities for the Tobacco Institute, wrote to Samuel Chilcote, Jr, president of the Tobacco Institute (emphasis added):
Covington and Burling [one of the tobacco industry’s law firms, based in Washington, DC] and California legal counsel have been reviewing possible grounds for a legal attack on the ad program. Among the possible bases for suit that have been reviewed are that the ad campaign is an improper expenditure of funds under Prop 99 and AB 75, that it is defamatory, that it is deceptive advertising, and presents First Amendment concerns. Aside from tactical questions as to the desirability of pursuing any legal action, the considered judgment of counsel here and on the ground in California is that there is no basis for suit which would have a realistic chance of success.87(p3)
The industry did not pursue a legal strategy at that time. In 2001, however, Lorillard attacked the American Legacy Foundation’s truth campaign,88 claiming that it had used MSA funds to "publish or broadcast a number of advertisements that do not address the ‘addictiveness, health effects or social costs’ of tobacco use" and had "included personal attacks on companies and individuals and the vilification of Plaintiff, its employees and tobacco companies collectively," which violates the vilification clause of the MSA.89 The primary ad in question involved a dog walker calling a tobacco company to inquire if the company is interested in purchasing his dog urine because urea is one of the chemicals added to cigarettes. However, other ads in question included suggesting that Philip Morris advertise its product on hearses and that it produce gas-flavored cigarettes because the company adds ammonia to its products.90
On August 22, 2005, the Delaware Court of Chancery ruled that the American Legacy Foundation’s truth advertisements did not violate the terms of the MSA.83,91 In the fall of 2005, Lorillard appealed the decision in the Court of Chancery and was denied relief90; Lorillard then appealed to the Delaware Supreme Court, where it was once again denied relief.92 On the media campaign, a significant limitation of the MSA was a lack of definition for the terms "vilification" and "personal attack." The significance of the appeals process was that the Delaware Supreme Court defined "vilification" and "personal attack"; the court’s examples to illustrate its definitions are particularly instructive:
With the boundaries established by Section VI of the MSA in mind, we turn to whether the advertisements before us violate that provision. They do not. The advertisements are not invidious, disparaging, offensive, belligerent, nor fiercely or severely critical. Nor are they denouncements that are both unfounded and abusive or slanderous. The tone of the youth in the advertisements is usually expressly friendly or helpful, even if implicitly drawing attention to unflattering facts about past actions of tobacco companies or their employees. The youth’s messages, and thus the advertisements themselves, do not qualify as personal attacks or vilifications. To illustrate the basis for our conclusions, we will use the same four advertisements that Lorillard has presented as examples of breaches of contract by ALF [American Legacy Foundation].
While the MSA creates real restrictions on ALF’s advertisements, we conclude that the advertisements presented to us from ALF’s truth campaign fall within the MSA’s restrictions, and do not exceed them. Merely drawing attention to the past conduct of tobacco companies through innocuous and even helpful-sounding offers such as those heard in "Shredder," "Hypnosis," "Lie Detector," and "Dog walker," is not a personal attack or vilification prohibited by the MSA.92(p742–743)
The fact that the court clearly defined these 2 terms was a significant victory for tobacco control media campaigns because it provided a clear standard that can be cited in the event of future attacks against them.
In 2002, RJ Reynolds attacked California’s media campaign, claiming that the campaign was polluting potential jury members for a variety of individual tobacco-related lawsuits pending in California courts and that the tobacco industry was owed the right to a fair trial. RJ Reynolds went on to plead that "94% of jury-eligible adults recalled seeing state-sponsored ads. Of those, 79% reported that the ads made them feel less favorable to the tobacco companies."93 The court disagreed with Reynolds, stating that the media campaign is doing what it is supposed to do—educate the public about the industry’s manipulative tactics. The judge went on to say that although a majority of the public may have been influenced by the campaign, there still existed a reasonable portion of the population that had not been influenced, thereby still making it possible to seat an impartial jury.94
In 2003, this time in conjunction with Lorillard, RJ Reynolds once more attacked the California media campaign, claiming that tobacco companies are entitled to a right to free speech, and part of that right is "the right not to be compelled to pay for speech that one would not voluntarily fund."95 In July 2003, the US District Court dismissed the lawsuit, stating that California’s media campaign was "simply the cost of living in a democracy."95,96,97(pA-11) Because the media campaign is financed by tobacco excise taxes (Proposition 99) and the messages are not compelled speech by taxpayers but rather a representative of the state government, the judge ruled that the tobacco companies do not have the authority to control government speech (D. Eckhart, JD, California Attorney General’s Office, written communication, February 15, 2005). Although costs associated with legal challenges are a normal cost of business for the tobacco industry, it can be a major financial burden for tobacco control media campaigns, reducing the time and funds available to produce ads.83
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CONCLUSION |
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TOPABSTRACTINTRODUCTIONTHE RISE OF TOBACCO...TOBACCO INDUSTRY TACTICS AGAINST...CONCLUSIONReferences |
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During the past 4 decades, the evolution of the messages conveyed to the public through tobacco control media campaigns to focus less on the health dangers of smoking and more on revealing the deceptive practices of the tobacco industry was matched with more aggressive tactics by the tobacco industry to weaken or eliminate these campaigns. There have been 2 significant changes over time. First, the tobacco industry has become more experienced and sophisticated in its efforts to stop these campaigns or, failing that, push them into providing ineffective messages. Second, there is strong empirical evidence that these media campaigns can substantially contribute to a reduction in smoking rates.98 Media campaigns that are aggressive and directly confront the lies and deceptive practices of the tobacco industry are effective; however, that which makes them effective also makes them a target for the tobacco industry.49 The efforts put forth by California and the American Legacy Foundation as they pursued legal battles with the tobacco companies provide a good example of the tenacity needed to successfully defend and promote tobacco control media campaigns.
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Acknowledgments |
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Our research was funded by the National Cancer Institute (grant CA-61021).
Note. The funding agency had no role in the conduct of the research or the preparation and revision of the article. Portions of the research were originally prepared for a forthcoming National Cancer Institute monograph, "The Role of the Media in Promoting and Discouraging Tobacco Use."
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Peer Reviewed
Contributors
J. K. Ibrahim collected the data, conducted the analysis, and drafted the article. S. A. Glantz supervised the data collection and edited and revised the article. Both authors revised the article in response to the reviewers’ comments.
Accepted for publication September 4, 2006.
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TOPABSTRACTINTRODUCTIONTHE RISE OF TOBACCO...TOBACCO INDUSTRY TACTICS AGAINST...CONCLUSIONReferences |
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