James R. Adams, a giant on Madison Avenue during the years immediately after World War II, once said that advertising is the "principal reason why the business man has come to inherit the Earth." Surely, the three weeks prior to an election give further reason why modern "Mad Men" still have a lot to say about how people behave at the polls, let alone the marketplace.
Those ads for Question 7 that have flooded Maryland's airwaves in recent weeks aren't detached, dry recitations of why expanded gambling is good or bad for Maryland. They are attention-grabbers that try to shout above the fray. In an era of mass digital distraction, not to mention recording devices that allow us to fast-forward through the commercial clutter, that's never been more essential — at least if you want your message heard.
Candidates, ballot questions or light beer, the challenge is the same. Consumers have never been more jaded, more message-resistant, more distracted, more information-overloaded or deluged with social media, text messages and email. And that's particularly true for young people, who are plugged in and tuned out in this post-MTV Digital Age.
All of which supports the action taken last week by the U.S. Food and Drug Administration to have a full-court review of the decision by a three-judge appeal panel to throw out rules forcing cigarette packaging and advertising to display warning labels that are both more graphic and more effective. The big tobacco companies sued to block those warnings, which include an image of a man exhaling smoke through a tracheotomy hole, on the grounds they went beyond the factual and into anti-smoking advocacy.
The first sign the court went astray in its decision was surely the judges' observation that the FDA "has not provided a shred of evidence" that the warnings would advance the government's interest in reducing the number of Americans who smoke. Yet why else would the companies want to stop them, and why else would they claim the warnings amount to advocacy?
We'll admit there's something a bit unusual in where the regulation of tobacco has gone. Rather than ban its use altogether, the government at the federal, state and local levels — with overwhelming public support — has slowly been trying to restrict its use. The facts of tobacco use aren't really in any doubt. Preventing people from smoking may be the single most effective action government can take to save lives, prevent disease and reduce health care costs.
Posting warnings on cigarette packaging dates to 1965. It's established public policy. The problem is that those labels are too easily ignored, particularly by children. The "just the facts" approach that R.J. Reynolds Tobacco Co. would prefer would just be more of the same. A photograph of a diseased lung is a lot more effective than a few words mentioning lung disease.
The "Big Five" tobacco companies argue that they have a constitutional right not to have their product become anti-smoking billboards. "Compelled speech" is their claim. If so, why was that not a First Amendment problem in 1965 (or when similar laws were passed in 1969 and 1984)? Likely because the labels had little effect. Nor do manufacturers like admitting publicly that they misrepresented the facts about their product in the past, as the government's proposed warnings labels would do.
Of course, one could take the position that tobacco use is down in this country and higher cigarette taxes, the growing body of laws limiting where a person can light up and public health campaigns will drive it down further. But recent surveys found that about 1,000 teens take up the smoking habit each day. Young people commonly get hooked before they are even old enough to legally purchase a pack. And what are the tobacco companies doing about it? They spend an estimated $10 billion each year on marketing.
Naysayers will argue, why not put similar graphic labels on French fries or soda? But they aren't harmful in moderation, whereas cigarettes are destructive from the first puff. That makes them unique among consumer products, and warning labels that carry an emotional content don't misrepresent the facts, they simply transmit them effectively.
The federal government has a right to regulate tobacco, as the 2009 law passed by Congress made clear, and warning labels are an established practice. As such, the FDA ought to be able to use the same communications techniques that big business, politicians and advocacy groups routinely use as well. Otherwise, whoever inherits the Earth, businessmen or others, will simply end up with a much shorter life spent on it.