Chapter 12, Part 1

By Frank Tursi, Susan E. White and Steve McQuilkin
JOURNAL REPORTERS
© Winston-Salem Journal

Bleary-eyed football fans who managed to hang on beyond the last bowl games witnessed history 90 seconds before midnight on New Year's Day 1971 when four Marlboro cowboys galloped into the TV sunset. From then on, cigarette companies would never again be allowed to advertise their wares on television or radio.

On the face of it, the companies took another blow to the body. They had been singled out, by Congress no less, for making a product that was so dangerous and using ads that were so deceptive that they were banned from the tube. ''A lot of excitement went out of the business then,'' a tobacco ad man lamented.

The R.J. Reynolds Tobacco Co. was once the largest cigarette company in the United States with a powerhouse of best-selling brands: Winston, Salem and Camel. But times changed, and as the case against smoking became more pronounced in the 1960s, RJR failed to adapt to the marketplace. Its rivals would eventually rush past it, and RJR's efforts to catch up would have a profound impact on the company and the cigarette industry.

Though they would have to survive without instant access into America's homes, the companies used the $300 million that they spent with broadcasters each year on magazine ads, billboards and on sponsoring sporting events. In the end, cigarette consumption would continue to rise.

Horace Kornegay, the wily former congressman from Greensboro and president of the Tobacco Institute when the TV ban went into effect, succinctly described the strategy as ''winning while seeming to lose.''

The same thing had happened in 1965 when Congress required warning labels on all cigarette packs. Coming a year after the first surgeon general's report, the bill was the government's first faltering attempts to rein in what it had deemed a dangerous public-health threat. Industry lobbyists, though, made sure the labeling law exempted advertisements and prevented states from enacting their own anti-tobacco legislation. Smokers continued to smoke.

In the 1950s, the tobacco companies responded to the initial attacks on smoking's effects by introducing filters. As the medical evidence against smoking continued to mount in the '60s, the companies aggressively marketed low-tar and low-nicotine cigarettes with ads that featured healthy young people doing healthy things surrounded by bright soothing colors. If the label was designed to discourage smoking, the ads were meant to reassure.

That message, though, wasn't as readily accepted as it once was. The mood in the country and in Congress was changing as the labeling act was set to expire in 1969.

An escalating war in Southeast Asia made Americans less trusting of authority and a rising sense of consumerism and environmentalism made them more suspicious of big business.

As it had in 1965, the industry agreed to the inevitable. It accepted a TV ban in return for some important concessions, including a new warning label that made no mention of cancer.

Most important, the ban ended an academic experiment by a cruise-ship dancer that was killing the tobacco companies.

John F. Banzhaf III had no particular animosity toward the cigarette companies when he sat down in his Bronx home on Thanksgiving Day 1966 to watch a football game with his father. He was struck by a cigarette commercial that seemed to glamorize a habit that both his parents practiced. While at Columbia University School of Law, Banzhaf had studied the ''fairness doctrine,'' a Federal Communications Commission policy that required broadcasters to offer free air time to opposing views on controversial public matters. He wondered whether the doctrine could be applied to cigarette advertising.

While working that winter as a dancer on a cruise ship, Banzhaf fired off a letter to WCBS-TV in New York, the station that had broadcast the football game. He argued that commercials were covered by the fairness doctrine, which would require the station to give free air time to anti-smoking messages.

The CBS brass refused, noting that its news telecasts carried plenty of stories about the smoking issue.

Banzhaf then complained to the FCC, the watchdog of public airwaves. The agency, in a letter to the television station on June 2, 1967, said that news stories it had broadcast dealing with smoking and health did not sufficiently offset the effects of the dozens of cigarette commercials it broadcast each day. The FCC said that the station must provide an unspecified but ''significant'' amount of time for opposing views.

The tobacco and broadcast companies immediately appealed, and Banzhaf wasn't sure that the FCC would stand its ground. Because he didn't think he had the time or money to continue the fight himself, Banzhaf wanted to turn it over to the American Cancer Society, the American Lung Association or some other major public-health organization.

They all refused. The entire subject was too controversial, and broadcasters sat on the boards of many public-health organizations, whose directors feared they would lose some of the free air time they were already getting on TV for other health problems.

Those directors, Banzhaf explained, thought that the only way to fight disease was through research and education. ''The idea that you would use legal action was . . . so far outside the box they couldn't even conceive it,'' said Banzhaf, now a professor at George Washington University. He teaches law students, known as ''Banzhaf's bandits,'' to use ''legal judo'' and ''guerrilla law'' to magnify their effectiveness while trying to tackle public problems.

Banzhaf also is the director of Action on Smoking or Health, known as ASH. He works out of a narrow, red-brick townhouse with a threadbare carpet, behind a cluttered desk with a small rubber statue that says ''Sue the Bastards.'' He files lawsuits against the tobacco companies, he said, as a sort of ''hobby.''

The FCC stuck to its guns and upheld its preliminary ruling in September 1967. A judge for the U.S. Circuit Court of Appeals in Washington upheld the FCC's ruling in November 1968. ''The danger cigarettes may pose to health,'' the judge wrote, ''is, among others, a danger to life itself.''

The American Cancer Society and the other groups that had refused to take up Banzhaf's fight rushed to produce anti-smoking commercials. One featured William Talman, the prosecutor from the Perry Mason TV series. He was dying of lung cancer and wanted to warn people not to smoke. ''Don't be a loser,'' he said. The spot aired after he died.

Such messages had a powerful effect. For the fourth time since 1953, cigarette consumption dipped.