Just before the stroke of midnight on December 31, 1970, Virginia Slims aired a new commercial during The Tonight Show Starring Johnny Carson. It was a celebration of the progress women have made over the last century or something.
It was also the last TV commercial for cigarettes in the United States.
Up to that point, the tobacco industry had been the biggest product advertisers on television, spending about $150 million (or about $1 billion in 2020 dollars) on TV commercials. The sudden halt came as a result of Congress passing the Public Health Cigarette Smoking Act in April 1970, banning the advertising of cigarettes on television and radio beyond that year.
At first glance, the law appears to be a major salvo in the long-running legal, regulatory, and cultural battle with the tobacco industry. This fight is still being waged to this day, with major developments along the way in the ensuing half-century, such as the Federal Cigarette Labeling and Advertising Act in 1984, requiring cigarette companies to put the U.S. surgeon general’s warnings on all cigarette packs and ads. In 1998, the Master Settlement Agreement further limited the advertising, marketing, and promotion of cigarettes, including the use of cartoons such as Joe Camel to entice young people. (It also required the tobacco industry to pay billions of dollars to states annually.) A decade ago, in 2010, the Family Smoking Prevention and Tobacco Control Act prohibited tobacco companies from sponsoring sports, music, and other cultural events, and banned the display of their logos or products on T-shirts, hats, and other apparel.
But in actual fact, the 1970 TV ad ban was a total smoke screen.
In 1967, the Federal Communications Commission began enforcing a provision of its “fairness doctrine” that required TV stations to broadcast one anti-smoking public service announcement, free of charge to the anti-smoking organizations, for every three cigarette ads that aired. The anti-smoking ads—surprise!—were actually effective, with smoking declining by about 7% between 1967 and 1970. Big Tobacco challenged the fairness doctrine in court with a First Amendment challenge, but it was upheld.
Big Tobacco’s clever strategy
Then someone in Big Tobacco figured out that the best way to get rid of all those pesky anti-smoking ads was to just stop advertising on TV.
Without cigarette commercials, there would be no free anti-smoking commercials. Given the money they spent on TV advertising, a sudden collective departure would risk triggering an antitrust lawsuit from the TV networks losing those giant plumes of smoking lucre.
Instead, according to Alan Blum, director of the University of Alabama Center for the Study of Tobacco and Society, they did the next best thing: Lobbied Congress to pass the bill to ban cigarette commercials. “And so Congress did the bidding of the tobacco industry against the fervent pleas of the television networks to please not ban cigarettes,” says Blum.
What happened next was a preview of what brands of all stripes would be doing 40 years later as the internet subsumed traditional advertising models and a complete decentralization of our media consumption. With no TV ads available, Big Tobacco invested heavily in sponsorships of sports and other cultural events.
Almost immediately after the TV ad ban, NASCAR signed a deal with R.J. Reynolds Tobacco Company to change the name of its Grand National Division to the Winston Cup Series, which ran from 1971 to 2003, when the title sponsor switched to the telecom company Nextel. Beyond major tournament sponsorships in sports such as car racing, tennis, and golf, tobacco companies also bought strategically placed billboards in other sports with massive audiences, such as behind home plate in Major League Baseball stadiums.
In a 1991 article in the New England Journal of Medicine, Blum wrote that in the 15 races of the 1989 CART racing season, Marlboro got about three-and-a-half hours of in-focus TV exposure, and 146 brand-name mentions on the air. He wrote in The Wall Street Journal that by 1980, 14 of the 24 Major League Baseball stadiums had Marlboro billboards, and eight had Winston billboards. Then there was the hundreds of millions of dollars spent in sponsorships and grants in the arts.
The Truth Initiative, formerly the American Legacy Foundation, was founded as a result of the Master Settlement Agreement, to promote anti-smoking. Current CEO Robin Koval says the TV ban actually helped top cigarette brands. “For the leading brands like Marlboro and Camel, it benefited them competitively because it essentially froze their shares in place,” says Koval. “It became very hard for new premium brands to enter the market without television, which was where the biggest influence was in those days. Marlboro and Camel are still top brands today. How many categories can you look at that have the same top brands as in 1970? It’s not common. And it’s because this gave them an advantage.”
The vaping exception
Why does any of this matter in 2020? The implications and machinations behind the 1970 Public Health Cigarette Smoking Act are all too relevant 50 years later. Most obviously because Big Tobacco is still advertising, thanks to their little pivot to e-cigarettes, which conveniently hadn’t been invented in 1970 and therefore are not covered by the ban.
And boy, they’re something!
In June, U.S. House lawmakers asked the FDA to ban Puff Bar, which it accused of using the pandemic to advertise to teens, with flavor names such as OMG and ad copy on its site that read, “We know that the inside-vibes have been … quite a challenge. Stay sane with Puff Bar this solo-break. We know you’ll love it. It’s the perfect escape from the back-to-back zoom calls, parental texts and WFH stress.”
Illinois Representative Raja Krishnamoorthi told The New York Times that “this advertisement is designed to convince children home from school to vape in their rooms without their parents noticing.”
According to a lawsuit filed in February by the Massachusetts attorney general, Juul Labs had bought ad space in its early days on youth-focused websites, including Nickelodeon and the Cartoon Network, among others with audiences of middle school and high school students.
“Juul invested in social media, and eventually its target audience did the marketing for them, spreading among their own networks,” says Koval. “Even after Juul announced it was shutting down its social accounts, its unofficial presence was still strong.”
The social media regulatory fight
Tobacco use isn’t the only toxic business in need of a regulatory makeover.
The rise of social media has unleashed a rash of consequences, not the least of which are hateful content and disinformation and an epidemic of cyberbullying, among other impacts on kids around mental health, depression, anxiety, and more.
Facebook, for example, is in the midst of an advertiser boycott, led by the Stop Hate for Profit movement, that has inflicted a massive PR wound, if not a significant financial hit just yet. Execs Mark Zuckerberg and Sheryl Sandberg are scheduled to testify during the forthcoming House Judiciary Committee hearings that are part of its yearlong antitrust investigation.
The social equivalent of the 1970 ban could be something like Facebook asking Congress to regulate its business, as the company has done, then work to influence that regulation so it doesn’t really have a material effect, while still appeasing critics and limiting would-be rivals. If that seems unlikely, just look at Big Tobacco and the 28% of young people who are vaping.
“It shows that wherever there’s a loophole in the law, the tobacco industry is always looking to find it to go through,” says Koval.