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Even if the report had temporarily sharpened the scientific debate, the prohibitionists\u2019 legislative \u201caxes\u201d had long been dulled. Ever since the spectacularly flawed attempts to regulate alcohol during Prohibition, Congress had conspicuously disabled the capacity of any federal agency to regulate an industry. Few agencies wielded direct control over any industry. (The Food and Drug Administration was the most significant exception to this rule. Drugs were strictly regulated by the FDA, but the cigarette had narrowly escaped being defined as a \u201cdrug.\u201d) Thus, even if the surgeon general\u2019s report provided a perfect rationale to control the tobacco industry, there was little that Washington would do \u2014or, importantly, could do\u2014to achieve that goal.<\/p>\n\n\n\n
It fell upon an altogether odd backwater agency of Washington to cobble together the challenge to cigarettes. The Federal Trade Commission (FTC) was originally conceived to regulate advertisements and claims made by various products: whether Charlie\u2019s liver pills truly contained liver, or whether a product advertised for balding truly grew new hair. For the large part, the FTC was considered a moribund, torpid entity, thinning in authority and long in the tooth. In 1950, for instance, the year that the Doll\/Hill and Wynder\/Graham reports had sent shock waves through academic medicine, the commission\u2019s shining piece of lawmaking involved policing the proper use of the various words to describe health tonics, or (perhaps more urgently) the appropriate use of the terms \u201cslip-proof\u201d and \u201cslip-resistant\u201d versus \u201cslip-retardant\u201d to describe floor wax.<\/p>\n\n\n\n
The FTC\u2019s destiny changed in the summer of 1957. By the mid-1950s, the link between smoking and cancer had sufficiently alarmed cigarette makers that many had begun to advertise new filter tips on cigarettes\u2014to supposedly filter away carcinogens and make cigarettes \u201csafe.\u201d In 1957, John Blatnik, a Minnesota chemistry teacher turned congressman, hauled up the FTC for neglecting to investigate the veracity of this claim. Federal agencies could not directly regulate tobacco, Blatnik acknowledged. But since the FTC\u2019s role was to regulate tobacco advertisements, it could certainly investigate whether \u201cfiltered\u201d cigarettes were truly as safe as advertised. It was a brave, innovative attempt to bell the cat, but as with so much of tobacco regulation, the actual hearings that ensued were like a semiotic circus. Clarence Little was asked to testify, and with typically luminous audacity, he argued that the question of testing the efficacy of filters was immaterial because, after all, there was nothing harmful to be filtered anyway.<\/p>\n\n\n\n
The Blatnik hearings thus produced few immediate results in the late 1950s. But, having been incubated over six years, they produced a powerful effect. The publication of the surgeon general\u2019s report in 1964 revived Blatnik\u2019s argument. The FTC had been revamped into a younger, streamlined agency, and within days of the report\u2019s release, a team of youthful lawmakers began to assemble in Washington to revisit the notion of regulating tobacco advertising. A week later, in January 1964, the FTC announced that it would pursue the lead. Given the link between cigarettes and cancer\u2014a causal link, as recently acknowledged by the surgeon general\u2019s report\u2014cigarette makers would need to acknowledge this risk directly in advertising for their products. The most effective method to alert consumers about this risk, the commission felt, was to imprint the message onto the product itself. Cigarette packages were thus to be labeled with Caution: Cigarette Smoking Is Dangerous to Health. It May Cause Death from Cancer and Other Diseases. The same warning label was to be attached to all advertisements in the print media.<\/p>\n\n\n\n
As news of the proposed FTC action moved through Washington, panic spread through the tobacco industry. Lobbying and canvassing by cigarette manufacturers to prevent any such warning label reached a febrile pitch. Desperate to halt the FTC\u2019s juggernaut, the tobacco industry leaned on Abe Fortas, President Johnson\u2019s friend and legal adviser (and soon to be Supreme Court justice), and Earle Clements, the former governor of Kentucky who had become Little\u2019s replacement at the TIRC in 1959. Led by Clements and Fortas, tobacco makers crafted a strategy that, at first glance, seemed counterintuitive: rather than being regulated by the FTC, they voluntarily requested regulation by Congress.<\/p>\n\n\n\n