Soon after cigarettes started to gain a following in the United States, alarm about young "cigarette fiends" created pressure for legislation to prevent children from obtaining this new form of tobacco. By 1890, 26 states had passed laws banning cigarette sales to children. Then as now, enforcement was half-hearted, and kids continued to smoke even in jurisdictions where they could not legally obtain cigarettes. The anti-smoking movement lobbied for tougher laws, and by 1921 more than a dozen states had banned the manufacture, sale, and possession of cigarettes.
These laws were passed at a time when the popularity of cigarettes was rising steadily. Most people did not believe the anti-smoking movement's warnings that cigarettes would lead to moral, mental, and physical degradation. Nowadays, smokers are a shrinking minority viewed with hostility and contempt, while cigarettes are considered instruments of addiction and death. So the tobacco companies may not be paranoid when they warn that the Clinton Administration's campaign to discourage teenage smoking will eventually erode the freedom of adults.
Indeed, the FDA regulations that have already been proposed impinge on adult behavior. Consider a relatively minor example that symbolizes the overkill of the administration's approach: the ban on cigarette vending machines. It's true that kids can easily obtain cigarettes from unattended vending machines. But if preventing underage access were the administration's only goal, there would be no reason to ban vending machines in bars, clubs, and other places where children are not permitted.
The restrictions on advertising are also gratuitous. The regulations would prohibit the use of pictures in outdoor ads and in print ads considered likely to be seen by a significant number of minors. The administration also wants to ban outdoor ads within 1,000 feet of schools or playgrounds, brand-name sponsorship of sporting or entertainment events, and non-tobacco items such as T-shirts or gym bags imprinted with product logos. In defending these restrictions against First Amendment challenges, the administration will rely on the Supreme Court's tradition (since 1946) of according less protection to commercial speech than to noncommercial speech. This distinction has never been stated with much precision, let alone justified. In any case, since 1976 the Court has made it clear that the government needs a good reason to regulate commercial speech and has to choose its means carefully. Under the four-part test established in the 1980 case Central Hudson v. Public Service Commission, restrictions will be upheld if (1) the speech is misleading or deals with unlawful activities; or if (2) the government has a substantial interest in regulating it, (3) the regulation directly advances this interest, and (4) the regulation is no more extensive than necessary.
Taking a stab at justifying the proposed advertising restrictions under the first prong, President Clinton and White House counsel Abner Mikva have both argued that cigarette ads, by targeting children, are proposing an unlawful activity. But without a confession from the tobacco companies, it is difficult to tell the difference between an ad aimed at 16-or 17-year-olds and an ad aimed at 18-or 19-year-olds. Pictures, which appear in ads targeting the middle-aged and elderly as well as the young, are not likely to be the distinguishing characteristic.
Still, whatever the tobacco companies intend, isn't it obvious that their advertising plays an important role in convincing kids to smoke? It is to the Clinton Administration, but there is little evidence for this hunch. Research indicates that the most important factors influencing whether a teenager will smoke are the behavior of his peers, his perceptions of the risks and benefits of smoking, and the presence of smokers in his home. Exposure to advertising may affect brand preferences, but it does not independently predict whether a teenager will smoke.
In support of its restrictions, the Clinton Administration cites a 1991 study published in The Journal of the American Medical Association that found 6-year-olds were as likely to match Joe Camel with a pack of cigarettes as they were to match the Disney Channel logo with Mickey Mouse. But recognizing Joe Camel is not tantamount to smoking, any more than recognizing the logos for Ford and Chevrolet (which most of the kids in the study did) is tantamount to driving. Other studies have found that teenagers who smoke tend to view cigarette advertising more favorably and to recall more of it. But this sort of correlation does not show that advertising makes kids more likely to smoke. It is just as plausible to suppose that kids pay more attention to cigarette ads after they start smoking, or that kids who are inclined to smoke forother reasons are also more likely to have a positive view of cigarette ads. International comparisons have also been inconclusive: There is no consistent relationship between restrictions on advertising and smoking rates among children or adults.
In 1989 Surgeon General C. Everett Koop said "there is no scientifically rigorous study available to the public that provides a definitive answer to the basic question of whether advertising and promotion increase the level of tobacco consumption. . . . The extent of the influence of advertising and promotion on the level of consumption is unknown and possibly unknowable." In 1991 Thomas Schelling, former director of Harvard's Institute for the Study of Smoking Behavior and Policy, said: "I've never seen a genuine study of the subject. . . . Most of the discussion that I hear even the serious discussion is about as profound as saying, 'If I were a teenage black girl, that ad would make me smoke.' I just find it altogether unpersuasive. . . . I've been very skeptical that advertising is important in either getting people to smoke or keeping people smoking. It's primarily brand competition." Given the lack of evidence, the proposed advertising restrictions cannot reasonably be said to advance the government's interest in preventing children from smoking, let alone do so in the least sweeping way possible.
But the most troubling aspect of the Clinton Administration's plan is its open-endedness. By declaring the nicotine in tobacco a drug subject to FDA regulation, the administration opens the door to further censorship and arbitrary restrictions. Indeed, if underage use of tobacco does not fall by 50 percent within seven years after the regulations are imposed, the FDA says, "the agency will take additional measures."
FDA Commissioner David Kessler has declared the cigarette a "nicotine-delivery device," an epithet he would force the tobacco companies to display in their ads. This is like saying that Scotch is an "ethanol-delivery device" or that coffee is a "caffeine-delivery device." Such simplistic, pseudoscientific terminology reduces smoking to a pharmacological compulsion. It ignores the manifest fact that some people like to smoke, despite the risks involved. Whether you start smoking as a teenager or as an adult, quitting may be difficult, but it is clearly not impossible: About as many Americans have given up smoking as continue to smoke, and they typically do so on their own.
Yet Kessler has responded favorably to the idea of forcibly weaning smokers from the habit by requiring tobacco companies to gradually reduce the amount of nicotine in cigarettes. Furthermore, if the FDA got serious and applied the same standards for safety and efficacy to cigarettes that it applies to pharmaceuticals, it would have to ban them. President Clinton insists that is not in the cards. For now.
[A version of this article appeared in the San Diego Union-Tribune on August 20, 1995.]