Chapter 7

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

At precisely 9 a.m., the 200 or so reporters filed into the basement auditorium of the State Department Building on E Street in Washington. The doors were locked behind them. Dr. Luther Terry, the U.S. surgeon general, chose a Saturday to lessen the shock on the stock market. He picked the auditorium, which had been the site of presidential press conferences, because its security could be assured.

At a news conference on Jan. 11, 1964, Surgeon General Luther Terry presented the results of the first U.S. government review of the effects of smoking on health. (Journal File Photo)

The committee Terry had appointed to conduct the first government review of the health effects of smoking had been working for more than a year amid the hush-hush more common to the CIA than the U.S. Public Health Service. Its report was finally ready on that Jan. 11, 1964; a copy had been hand-delivered less than two hours earlier to the West Wing of the White House.

While Terry and the 10 committee members took their seats on the auditorium stage, Donald Shopland, a young staff member for the committee, wheeled in one of the two pallets stacked with boxes of the report. He began to hand out copies of the 387-page brown, softbound book with the ponderous title Smoking and Health, Report of the Advisory Committee to the Surgeon General of the Public Health Service. (Surgeon General Report footnote)

The reporters were given 90 minutes to skim through the conclusions the committee had reached after reviewing more than 7,000 scientific articles and studies:

Cigarette smoking is causally related to lung cancer in men; the magnitude of the effect of cigarette smoking far outweighs all other factors. . . . Cigarette smoking is much more important than occupational exposures in the causation of lung cancer in the general population. . . . Cigarette smoking is the most important of the causes of chronic bronchitis in the United States, and increases the risk of dying from chronic bronchitis and emphysema. . . .

In other words, cigarettes could kill.

The 387-page report was titled Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service. (Journal File Photo)

What tobacco executives had for the past 10 years passed off as nothing more than a ''theory'' or ''scare'' was given the seal of government approval. What they hoped would prove nothing more than an uncomfortable but passing fad was guaranteed a permanence that, in a country where more than half of the adults smoked, threatened the fate of a multibillion-dollar industry.

Terry and the committee members answered questions for 90 more minutes, and then the doors were unlocked. The reporters rushed to the telephones ''like rushing ducks off a pond.'' The report's verdict was on the front page of every major newspaper in the country the next morning.

It struck fear in Winston-Salem. Ella Mae Jessup, an employee at R.J. Reynolds Tobacco Co., wrote Sen. B. Everett Jordan of North Carolina that RJR went on ''short hours'' a week after the report was released. ''The tobacco industry, if it goes under, would cripple the nation,'' she noted.

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.

Rodney Austin was more concerned about what the report would do to his beloved RJR. ''It was a surprise, it was a shock,'' said Austin, who was then the company's personnel manager. ''It had obvious implications for the company, the institution, the heritage _ and we didn't know what those implications were going to be. It was like anything coming out like that, and it was a very unique first-time kind of move for government. You had the press speculating on all kinds of implications and possible implications.''

Never before had the government branded a product a threat to public health. Those who later would lament the growing involvement of government into Americans' daily lives would trace the trend to this landmark report. Within a year of its release, the government would require warning labels on each cigarette pack, the first of the mandated warnings that now appear on everything from movies to side-view mirrors.

The report also marked the beginning of the government's faltering attempts to diminish tobacco's centuries-old hold on Americans. Smoking was enough of a hazard, the report noted, to warrant ''appropriate remedial action.'' What that might be wasn't specified, and 35 years later society is still trying to figure it out.

Shopland, who had wheeled the tobacco report into the meeting room, stepped outside the auditorium and lit a Pall Mall as he watched the reporters fly to the telephones _ nine signs around the auditorium reminded occupants that smoking was forbidden inside. The report would persuade him, as it did many Americans, to quit.

The Worm Turns

Shopland was a 19-year-old kid in September 1962 when he took a job working in the new National Library of Medicine on the sprawling campus of the National Institutes of Health in Bethesda, Md., just north of Washington. Within two months, the library with its pagoda-shaped roof would become the center of the advisory committee's efforts, and Shopland would be assigned as a clerk for the committee.

The committee met in an unfinished sub-basement in the library, a windowless bunker that was far removed from normal traffic. Armed guards roamed the corridors, and Shopland and other staff members had to get security clearances. All the studies collected by the committee and the internal reports it generated were locked up at the end of each day.

Those studies showed that the medical case against tobacco had been slowly closing shut throughout the late 1950s. Researchers with the American Cancer Society, for instance, had followed 200,000 people for 44 months. Cigarette smokers, they reported in 1957, had a 68 percent higher mortality rate than nonsmokers. Of the 448 lung-cancer victims, only 15 had never smoked.

That was enough for then-Surgeon General Leroy Burney, a conservative man who enjoyed a smoke every once in a while. He issued a statement soon after the cancer society's report was released that read in part: ''The weight of the evidence is increasingly pointing in one direction: that excessive smoking is one of the causative factors in lung cancer.''

Though it was a surgeon general's first public statement on the matter, his cautionary tone _ using the words ''excessive'' and ''one'' _ gave the tobacco executives the wiggle room they needed. They trotted out the rebuttal that had by then become standard: Statistical studies can't prove the causes of disease; more research was needed. Cigarette sales in the third quarter of the year were 6 percent higher than the previous year.

Maybe smokers weren't convinced, but scientists for British-American Tobacco Co. were hard-pressed to find an American doctor who didn't think smoking caused cancer. The B.A.T. scientists visited major U.S. universities and research centers in 1959 and found the medical opinion on smoking nearly unanimous.

''Although there remains some doubt as to the proportion of the total lung cancer mortality which can fairly be attributed to smoking, scientific opinion in the U.S.A. does not now seriously doubt that the statistical correlation is real and reflects a cause-and-effect relationship.,'' the B.A.T scientists wrote in their report.

The American Cancer Society, the American Heart Association and the National Tuberculosis and Respiratory Disease Association urged President Kennedy in June 1961 to appoint a commission to determine the health hazards of smoking, but Kennedy passed. He had won the 1960 presidential election by only 0.1 percent of the vote. His vice president, Lyndon Johnson of Texas, had successfully delivered crucial Southern states. Kennedy had an ambitious legislative program that would have to navigate past congressional committees dominated by tobacco-state legislators. (Kluger footnote; background on the Surgeon General's report.)

The pressure on Kennedy to make a public statement on smoking increased in 1962 after the venerable Royal College of Physicians, a 444-year-old honorary society made up of the most respected doctors in England, issued a report that concluded that smoking was an important cause of lung cancer. The report had little effect in England, but it triggered a reporter's question at a Kennedy press conference. JFK promised to look into it. (Kluger footnote)

Surgeon General Terry announced on June 7, 1962, that he was appointing an ''expert committee to undertake a comprehensive review of all data on smoking and health.'' Committee members would turn out to be respected scientists who had previously expressed no opinion about the relationship of tobacco to health. All members were approved by the tobacco industry and by the American Medical Association and several national health agencies. Half of the committee members were cigarette smokers.

''It was a fairly virgin group in some respects because they had a learning curve,'' Shopland remembered. ''And it's probably all the more remarkable as to how they got that report out in the 13 or 15 months.''

Tobacco executives promised in newspaper and magazine ads to cooperate with the committee, and Liggett & Myers even turned over some studies on smoke composition. Behind the scenes, though, industry representatives were laying out a far different strategy. Tobacco executives instructed Dr. Clarence Cook Little, the scientific director for the industry's Council for Tobacco Research, to ''evaluate constructively and critically and to publicize at about the time of the release of the report any deficiencies, inadequacies or bias.''

Other industry representatives were told to ''manifest an attitude of complete cooperation in the development of the report'' but be prepared to ''hit hard and effectively at the time the report is made.''

By December 1963, members of the advisory committee had reviewed enough of the science to know where their report was heading, Shopland said. ''We had a very clear idea that this was going to be something that would be found to be fairly hard-hitting,'' he said.

Murray Senkus, RJR's director of research at the time, was relieved that the study didn't condemn smoking outright, but that didn't lessen its effects. ''The health people who thought seriously about this became more vociferous and so the curve is not so much this way,'' Senkus said, tracing a gradually rising line in the air with his finger.

''But like this,'' he continued, as his imaginary line cut sharply upward.

James Bowling, a member of Philip Morris' board of directors when the report was released, saw another, far-reaching effect. ''It was serious, stunning shock,'' he said of the report. ''That's when the lawyers became more involved.''

The Battle Is Joined

Philip Morris Cos. hired Abe Fortas in 1963 as a lobbyist. Fortas was Lyndon Johnson's personal attorney and became the most powerful lobbyist in Washington after Johnson succeeded the assassinated Kennedy in November 1963. Everyone in town knew that Fortas had the president's ear, giving his words immeasurable authority when he spoke on behalf of tobacco.

Fortas' most important contribution, though, may have been persuading his buddy to stay out of the fight. Without Johnson throwing his considerable influence around Capitol Hill, where he had once ruled as Senate majority leader, the tobacco industry had its way.

Reporters who were in the State Department auditorium that Saturday morning in January 1964 noted that Terry had been strangely noncommittal when asked what he intended to do about this new health threat. He was probably taking orders from the White House. Johnson had enough wars _ domestic and foreign _ to fight without engaging in a bruising battle within his own party. His administration didn't want to expend valuable political capital that would be needed fighting poverty and championing civil rights on an action that would undoubtedly entail severe social and economic disruptions.

''We wanted to get schools integrated, the voters' rights act passed, fair housing passed,'' explained Joseph Califano, at the time Johnson's top domestic adviser. ''And all of those things required us to take on the whole phalanx of Southern states.''

Into the void stepped the Federal Trade Commission. The agency announced a week after Terry released his report that it intended to hold hearings on new rules that would require the tobacco companies to place warnings on every cigarette advertisement and pack. The action surprised the tobacco barons and their allies in Congress. Sen. Sam Ervin of North Carolina issued a stern warning to the FTC in February 1964: ''I respectfully submit that the ruling of the Federal Trade Commission is unfair and should be forthwith contested by the tobacco companies in federal courts. If this ruling is not annulled by the courts, I will do everything within my power to obtain a satisfactory legislative solution.'' (Ervin footnote; Jessup's letter.)

The companies quietly went to work. Soon after the FTC announcement, they secretly formed a committee of lawyers, each representing one of the Big Six _ RJR, Philip Morris, American Tobacco, Brown & Williamson, Liggett & Myers and Lorillard. The committee would meet almost daily for the next year planning for every contingency: FTC arguments, lobbying in Congress, a possible court test. The lawyers wrote testimony, drafted bills and amendments and fed questions and statements to friendly congressmen.

Thus, the decades-long battle was joined.

So high were the stakes that British-American Tobacco sent a team of lawyers to America in the fall of 1964 to gauge which way the wind was blowing. If the United States required warning labels, B.A.T feared that Italy, Germany, Sweden and a host of other countries in its overseas kingdom would follow suit. ''The dangers to the industry in the present situation are not only the damage that the warnings will do to trade _ and the advertising warning is likely to make spot TV advertisements impossible _ but the danger that states and even municipalities will start prescribing their own warnings,'' the lawyers wrote in a memo after returning home.

The industry had always had its way in such matters. In 1905, for instance, in exchange for tobacco-state support for the first federal Food and Drugs Act, tobacco was removed from the U.S. Pharmacopeia, an official government listing of drugs. The action automatically removed tobacco from supervision of federal regulators.

Rep. John Blatnick, a liberal Democrat from Minnesota, found out in 1957 just how powerful the tobacco industry could be. Consumer Reports and other magazines had been reporting that the tar and nicotine content of the new filtered cigarettes was often higher than nonfiltered brands. Reader's Digest, for example, reported that Winston had 32.6 milligrams of tar, compared to 31 milligrams for the filterless Camel. By 1957, the tar content of Winston had risen to 32.6 milligrams. Kent with its ''Micronite'' filter, which contained asbestos, had 9 milligrams of tar when Lorillard introduced it in 1952. Kent was such a dud that Lorillard, to make it taste better, almost doubled the tar content in five years. Yet many tobacco companies advertised their filtered cigarettes as being safer for smokers.

Deceptive advertising claims were the thrust of the first congressional hearings on smoking and health, which were held during six days in July 1957 by Blatnick's Legal and Monetary Affairs subcommittee. Though tobacco executives refused to appear, the committee heard testimony that the cigarette companies compensated for the filters by using stronger tobacco. The subcommittee decided that the Federal Communications Commission, which policed public airwaves, wasn't doing its job because it allowed the companies to mislead smokers with false advertising claims about filters' safety. In a stinging report that rebuked the FCC and the surgeon general, the committee recommended that Congress grant the Federal Trade Commission injunctive powers over deceptive cigarette advertising. Instead, the House stripped Blatnick, a smoker himself at the time, of his chairmanship and dissolved his subcommittee.

A Strategic Retreat

Considering their track record, the tobacco barons were inclined to fight the warning-label threat, but Earle Clements advised that a carefully planned retreat was in order. Clements was a wily political strategist whom the tobacco lawyers had hired to help Fortas twist arms in the Capitol. Clements, a former Democratic representative and senator from Kentucky, had been the majority whip when Johnson ruled the Senate. He was a horse trader of the first order and knew where the levers were in Washington's political machinery.

The medical evidence against smoking was compelling enough, Clements advised the lawyers' secret committee, that the industry must give ground voluntarily. Otherwise, Congress would have no choice but to impose warnings and harsh restrictions on cigarette advertising. A hard-line stance, Clements warned, also risked spurring the states into action. At least 20 states, after Terry's report, were considering their own warning labels. A bill in the New York legislature would have required a skull and crossbones on each pack.

Clements and H. Thomas Austern _ the chain-smoking senior partner of Covington & Burling, Washington's top law firm, and the final member of tobacco's team of political strategists _ sold the industry's lawyers on the idea of going to Congress and accepting the least onerous warning labels in exchange for protection from state regulations and warnings on advertisements.

To ward off sterner congressional action, the companies agreed to voluntary restrictions on advertising and even considered putting mild warnings about ''excessive'' smoking on cigarette packs. Edward DeHart pushed strongly for the voluntary labels as an enlightened pre-emptive strike. He was an account executive for Hill & Knowlton, the public-relations firm that the industry had hired in 1954. DeHart's persistence on the matter almost cost him his job when Henry Ramm, RJR's general counsel and the unofficial chairman of the lawyers' secret committee, confronted him.

''I want you to stop talking about it,'' Ramm told DeHart. (Kluger footnote; description of DeHart-Ramm incident.)

The industry, DeHart recalled, ''was in no mood those days to do anything it didn't absolutely have to do.''

The idea of voluntary labels was dropped. Though the industry's lawyers realized that the labels could help ward off lawsuits, Congress had to require them. ''We were told that a voluntary agreement by the industry on a packet warning would not solve the problem,'' the lawyers for British-American Tobacco wrote in the fall of 1964. ''Firstly, it would be an admission by the industry that cigarettes were harmful. Secondly, if the warning was specific enough to give the industry protection in lawsuits, its wording would be most damaging to future trade. Thirdly, of course, a voluntary warning would not prevent separate legislation by States. An Act of Congress is essential to the industry. Mr. (John) Russell (general counsel of Lorillard) thought that a general warning on packets, though it would not be specific enough to safeguard the manufacturers against future lawsuits, would make it more difficult for plaintiffs to establish a claim for damages.''

Having decided to make their case in Congress, industry lawyers and strategists were conspicuously absent from the FTC hearings in March 1964. No company executives testified. Instead, witnesses such as B.C. Mangum of the N.C. Farm Bureau told of tobacco's economic and historic importance. Mangum noted that 750,000 farm families in 21 states made $1.3 billion from tobacco, the fifth-largest cash crop in America. North Carolina farmers spent $74 million a year on labor, $30 million on fertilizer, $40 million on fuel, $35 million on equipment. The industry, Mangum reminded the FTC, employed 100,000 people _ 32,400 in N.C. factories alone _ paying them $379 million in wages.

Broadcasters and newspaper publishers bemoaned the loss of revenue that would accompany warning labels on advertisements. Even the American Medical Association came to tobacco's defense. The executive committee of the AMA's board of trustees sent a letter to the FTC opposing warning labels. It said: ''Cautionary labeling cannot be anticipated to serve the public interest with any particular degree of success. The health hazards of excessive smoking have been well-publicized for more than 10 years and are common knowledge.''

Skeptics snorted that the AMA was repaying the tobacco industry for the $10 million research grant it had received from the companies in late 1963. But there may have been more to it than that. Since the 1940s, the association had also been standing a lonely vigil against various attempts by Congress to provide federal health care to senior citizens. It needed the support of tobacco-state legislators to fight off the latest version, Johnson's Medicare bill.

None of which had any effect on the FTC. The commissioners voted in June to require tobacco companies to place warning labels on cigarette packs starting Jan. 1, 1965, and on all ads six months later.

H.R. Lindsey, the mayor of the little town of Draper, close to American Tobacco's Reidsville operations, saw a sinister force at work. ''In my opinion, they are just trying to destroy the South with their civil-rights bill or any other method they think they can get by with,'' he wrote in a letter to Sam Ervin. ''Hope you will fight them to the last ditch.'' (Ervin footnote; Lindsey's letter.)

Meeting the Accusers

That's what Clements intended to do, but not in the meeting room of an administrative agency. His turf was Congress. He persuaded Oren Harris, a Democrat from Arkansas and the chairman of the House Interstate and Foreign Commerce Committee, to hold hearings on warning labels in June and July 1964. Reps. James T. Broyhill, a Republican, and Horace Kornegay, a Democrat, represented North Carolina on the committee.

''They had ashtrays on the back of every seat, so you could sit out there as a spectator and light up a cigarette,'' Kornegay remembered. ''You could walk down the halls, you could go to the cafeteria. You could smoke anywhere you wanted to smoke and very few, if any, complained about it.''

Kornegay, a former prosecutor from Greensboro, placed a potted tobacco plant on the table in front of him. It was, he told the spectators gathered in Room 1334 of the Longworth Building for the first day of testimony on June 23, ''the defendant in this trial. I thought it had a right to be confronted by its accusers, so I brought it along this morning.''

The committee spent five days considering seven bills to regulate smoking. The most stringent, introduced by Rep. Blatnick, would have condemned smoking as a ''grave hazard to the public health'' and would have prevented government departments and agencies from taking any action that encouraged or promoted smoking.

Tobacco companies countered with three major points: Regulations on cigarette advertising should come from Congress; the industry should be given time to develop voluntary guidelines; and more research was needed to answer the questions raised by the cigarette companies. Bowman Gray Jr., the chairman of RJR, was their star witness.

Accompanied by Ramm, Gray spoke on behalf of all the companies when he told the congressmen that the industry would oppose the FTC in court if it had to. More research was needed before any restrictions were considered, he said, and only Congress should regulate an industry as vital as tobacco.

Gray was treated by the congressmen with respect and deference, a striking contrast to the harsh treatment some of his successors would receive at congressional hearings 30 years later. Under questioning, Gray echoed the fears of many of the congressmen in the room when he talked about the overreaching arm of government trying to control industries.

''This, in itself disturbs me as a citizen,'' he said. ''It disturbs me as a businessman because it would appear to me to be step one only in a planned and progressive assumption of control over the industrial economy of this country, which I submit is a very vital part of our free-enterprise system.''

The tobacco industry, Gray assured the congressmen, would move quickly if it were proven beyond doubt that cigarettes triggered disease. ''If it is proven that cigarettes are harmful, we want to do something about it regardless of what somebody else tells us to do,'' he said. ''And we would do our level best.''

By then, a number of compounds known to cause cancer in animals had been found in cigarette smoke by RJR researchers.

Cautions and Aftermaths

Despite the sound and fury, Congress adjourned in 1964 without passing a labeling act, but Kornegay and Harris persuaded a reluctant FTC to delay the effective date of its new rules until mid-1965 to give the next Congress time to act. The makeup of that new Congress was decidedly more liberal after Johnson's landslide presidential victory in November 1964, and the tobacco barons had a potential disaster on their hands.

They reacted swiftly. At House and Senate committee hearings in 1965 to consider labeling bills, committee members friendly to the industry attempted to discredit the surgeon general's report and Terry's testimony, Paul Rand Dixon, the chairman of the Federal Trade Commission, and the representatives of various medical and health organizations. The industry put on a full-scale medical defense with 39 doctors and scientists testifying that no proof existed that cigarettes caused cancer. Consequently, the report by the House Commerce Committee hedged. Smoking, it said, ''may be hazardous.''

Of the 11 bills on the subject considered that year, the one that passed on July 27 was the least onerous. The Cigarette Labeling and Advertising Act of 1965 required that all cigarette packs contain a mild warning smoking ''may'' be hazardous. The bill exempted cigarette advertisements for at least four years and prevented the states, the FTC and other federal agencies from requiring their own warnings.

Ervin, who had argued strenuously against warning labels, ended up voting for the final bill because, as he explained later to an angry constituent, ''it was the best we could hope for.''

The bill, said The New York Times, was ''a shocking piece of special-interest legislation _ a bill to protect the economic health of the tobacco industry by freeing it of proper regulation.'' An FTC commissioner called it ''one of the dirtiest pieces of legislation ever.''

In retrospect, a tougher law probably was impossible, given the political realities and the scientific evidence of the time. The weak warning would matter less than what the law stood for. With it, the government took the first steps, no matter how faltering, against smoking. The dangers of cigarettes were elevated from parental haranguing to official notification.

The immediate effects of the surgeon general's report and labeling act were minimal. Sales of cigarettes dipped temporarily after the report was issued but then rebounded and remained constant as the industry continued to invest hundreds of millions of dollars in advertising. The companies spent $200 million a year on radio and television in 1967, when cigarettes had become the single largest product advertised on television.

Long term, however, the report and warning labels had serious consequences. Per-capita consumption, according to the FTC, started falling 3.5 percent yearly, beginning in 1964. The Centers for Disease Control estimated that about 12 percent of the people who started smoking after 1964 quit in 10 years strictly in response to health publicity.

The rumbles of 1964 had become a constant drumbeat three years later when a Gallup survey showed that more than two-thirds of all adults and almost 60 percent of smokers thought cigarettes caused cancer. Mounting opinion against cigarettes could only spell bad news for the industry, warned John Dowdle, at the time RJR's assistant treasurer.

''We do know that a climate of public opinion is being created which, in the long run, can only have adverse effects upon cigarette sales,'' Dowdle wrote in a memo to Charlie Wade, who headed the company's public-relations department. ''But unless there is some dramatic scientific breakthrough, any significant change in public opinion will require even more public relations efforts for many years to come.''

Though they were lost in the debate at the time, two provisions of the labeling act would see to that. They required that the FTC and the U.S. Department of Health, Education and Welfare, through the surgeon general's office, report annually to Congress on cigarette advertising and health effects. They would work to keep smoking a pressing public issue. Henry Ramm and the other industry lawyers would work to minimize the damage.