(Paralegal) “Winston Smokes True, Like a Cigarette Do”

 “Winston Smokes True, Like a Cigarette Do”

The title of this paper refers to a MAD Magazine spoof of Winston cigarettes from the early 1950s (back when MAD Magazine’s format was closer to resembling a comic book, complete with newsprint pages and four-color Benday-dotted offset printing, than an actual magazine); the actual advertising jingle was “Winston smokes good, like a cigarette should” and R. J. Reynolds Tobacco Company used that catchy slogan and a declaration that Winston cigarettes had “no additives” for promotional purposes.

The case study presented involves a (hypothetically) fictional company, Winston Cigars, Inc., which does not reveal the health (and personal appearance) consequences of smoking their cigars and, additionally, neglect to disclose the addictive quality of the substances they use to manufacture their wares. Whether fictional or not, Winston Cigars, Inc. is facing the same dilemma real world tobacco companies face: How is it possible to be an ethical company if you are selling a product that, if used exactly as designed, is unhealthy?

Winston Cigars also has to adjust to a changing world that does not blithely accept tobacco product advertisements, whether they come with a smiling doctor (or an illustration of an actor playing a doctor) promising that either cigarettes in general or a particular brand of cigarettes are somehow harmless (or “good” for you) or appear with beloved children’s cartoon characters selling them, as Winston brand cigarettes were marketed in the 1960s by “Stone Age family” members Fred and Wilma Flintstone (a YouTube video of a Winston / Flintstones commercial can be viewed at http://www.youtube.com/watch?v=ttoOOOoRI-U). Congress and the Federal Trade Commission (along with non-government-sponsored anti-smoking activists) have either passed laws or worked tirelessly to get the general public to associate tobacco consumption with a wide range of frightening illnesses, maladies, and even a possible early death. What is a poor tobacco company to do?

In 1999, after settling FTC charges (related to deceptive advertising that might mislead the general public), R. J. Reynolds Tobacco Co. was required to stop implying that “no additives” in Winston brand cigarettes meant a safer cigarette. In addition, RJR was compelled to add a disclaimer in future advertising making that lack of connection clear, and to do so for at least one year “in a clear and prominent location,” even in future advertising that did not include a mention of additives at all, with penalties for failing to comply including a fine of $11,000 (FTC, 1999). Winston persisted in occasionally touting “no additives” (and American Spirit brand cigarettes also make a note of their “additive-free” tobacco) but has not used “additive-free” as a selling point in its advertising campaigns or on cigarette packaging since 2008 (FTC, 1999).

The FTC previously decided in 1967 that anti-smoking programs and awareness campaign advertisements were not sufficient to counteract the effect of a constant stream of tobacco company advertisements promoting various brands of cigarettes, and cited “the fairness doctrine” which compelled broadcasters to air anti-smoking messages free of charge if they also chose to advertise tobacco products on their television stations. Congress went further in 1970 and banned tobacco company advertising completely, and by 1971, radio and television stations were prohibited from airing such advertisements (CDC, 2010).

The FTC’s settlement with RJR included “corrective advertising” provisions (suggested by John Banzhof of ASH, a law professor) which would include making RJR’s prior deceptions (when advertising Winston brand cigarettes as being “additive free” and implying that there was a health benefit in choosing a cigarette without additives added into its tobacco) clear to the average consumer in their marketing outreach and advertising campaigns. Banzhof referenced Campbell Soup Co., 77 F.T.C. 664 (1970) and Firestone Tire & Rubber Co., 81 F.T.C. 398 (1971) which both involved companies which had been previously cited for less-than-completely-honest advertising (ASH, n.d.).

In addition to ethical concerns over advertising addictive (but legal) products, tobacco companies started to face lawsuits not only from faithful cigarette consumers who later developed serious health problems but also from actors who had appeared in cigarette advertisements. Allan Levine, who was known as Alan Landers when he was working as an actor (appearing in Winston advertisements), complained that not only did he fall victim to deceptive tobacco company advertising as a child, when he began smoking, but was also required to smoke Winston cigarettes when he was on-set filming commercials for the tobacco industry. He sued R. J. Reynolds and became an outspoken critic of tobacco companies in general. Sadly, like a couple of his “Marlboro Men” counterparts who died from cancer and cancer-related ailments, Levine died in 2009 after enduring several serious medical problems that he believed were directly attributable to his lifelong use of tobacco products and which included heart surgery to perform a double-bypass, removal of cancerous lobes from one of his lungs, and emphysema (Larimer, 2009).

People who protest smoking and tobacco company promotional techniques attempt to do so in ways that do not restrict anyone’s freedom of speech, but point out that–ethically speaking–it is their moral duty as responsible members of society to exercise their own freedom of speech to point out that smoking causes harm, that there is a correlation between the amount of cigarette advertising and smoking behaviors (more cigarette advertising leads to more smokers), and that we all, as taxpayers, end up footing the bill for smoking-related healthcare expenses and a diminished workforce incapacitated temporarily or permanently by nicotine- and smoking-related illnesses (Andre & Velasquez, n.d.).

Other groups, such as AdBusters, frequently target tobacco companies with protests, defaced billboards, and satirical advertisements. They assert that cigarette advertising may be legal in some cases (albeit with heavy regulations and rules and guidelines), but it is also deceptive. Tobacco companies favor advertising campaigns depicting vibrant and lively models enjoying sporty activities, and often imply that smoking is an adult activity with both sex appeal and mystique. (In fact, tobacco companies that come right out and say that smoking is “only for adults” are accused of using “reverse psychology” and similar social manipulation techniques and thus slyly appealing to adolescents looking for ways to prove their maturity and demonstrate their feelings of teenage rebellion: what better way to do so than by indulging in a somewhat forbidden adult activity like smoking?)

The problem any tobacco company faces is that, although their product is currently legal for adults to buy and use, their product contains carcinogens and is extremely addictive (the Surgeon General said that nicotine in cigarettes is as addictive as heroine and cocaine (Andre & Velasquez, n.d.)), meaning that proper use almost inevitably leads to health consequences up to and including death, and someone who wishes to quit smoking is going to suffer from withdrawal and discomfort (and probably relapse a few times before succeeding, if they manage to quit at all).

Tobacco companies also have a difficult time portraying themselves as responsible corporate citizens when they have to be forced by law to accept industry regulations and to post clear health warning labels on their products. Tobacco companies also have to deal with greater public awareness of the hazards of tobacco use, increased social pressure that indicates many people strongly disapprove of smoking, various laws, rules and restrictions directed against smoking in public (especially on venues that might previously have allowed smoking in restricted areas, such as bars, clubs and restaurants), restrictions on advertising (including the aforementioned bans on radio and television advertising since 1971, which are currently somewhat subverted when tobacco companies succeed in securing prominent product placement in various popular TV shows, e.g., Mad Men), and the threat of more individuals bringing lawsuits against tobacco companies for health problems they feel were caused by smoking (and deceptive advertising that made smoking look safe and pleasurable).

Tobacco companies strive to find new—but legal—ways to promote themselves if not their products specifically. Companies like Phillip Morris sponsor art museums (such as The Met), sporting events, live theatre and ballet performances, pop music and rock concerts, and even entire venues (like the Lincoln Center). Critics point out that such sponsorship easily skirts advertising bans while still garnering the tobacco company’s name some publicity when it is linked as a sponsor to events that the general public–or at least those people who enjoy the arts and sports–tends to see as important, useful and socially uplifting (Ravo, 1987).

Tobacco industry spokespeople also struggle to convince the general public that they are behaving ethically and responsibly, arguments that often fall on deaf ears. Michel Poirier, in his role as a representative for Canadian tobacco company JTI-Macdonald, vehemently denies that the general public is misled by tobacco advertising, claiming that surely no one is unaware of the health risks tied to smoking in this day and age when anti-smoking activism and strict advertising regulations have successfully projected a “smoking is bad for you” message. He claims that JTI-Macdonald does not want to “encourage anyone to smoke,” but, with millions of smokers in Canada, their particular market, it is not wrong for his company to try to win over as many people who are already smoking as they can: “[I]f you are an adult and enjoy smoking, we would like you to smoke our brands” (Poirier, 2002).

Poirier also noted that tobacco products sold in Canada are heavily taxed, with nearly 70 cents out of every dollar spent on cigarettes going toward taxes, which raise revenue federally and in the Canadian provinces that no doubt goes toward supporting social services from which all Canadians benefit, but which is punitive towards consumers who purchase tobacco products (in the United States, these taxes, which are not restricted to cigarettes and other tobacco products, are colloquially known as “sin taxes” and—echoing Poirier’s point of view–criticized by tobacco consumers and tobacco companies just as heartily in the U.S. as they are in Canada). Poirier also took umbrage at the idea that reminding consumers that cigarettes are for adults might influence underage children to see cigarettes in a positive light, and stated he was proud of a bill promoting a proposed sales levy which would have helped fund research into the root influences and causes of underage smoking (he also notes that this bill was rejected). Poirier argues that because his company does not directly market to children or pretend that their product is harmless, that his company is therefore acting ethically and responsibly (Poirier, 2002).

Tobacco companies like the fictional Winston Cigars, Inc. typically cite their charitable and social contributions to their communities as an indication that they desire to behave ethically (this may be the same concept—doing something positive to diminish the impact of a company’s product’s negative consequences or a company’s activities–that inspired the idea that corporations that were known to be heavy polluters or which caused damage to the environment could ease both the company’s and their customers’ consciences by purchasing “carbon footprint offsets” and engaging in activities such as promoting massive-scale tree planting). Compared to a mere 50 years ago, society has increasingly become critical of tobacco use and promotion and fewer people choose to smoke, thus tobacco companies have a hard job selling their products and an even more difficult task framing themselves as “ethical” to critics who note that, albeit legal, their products are still unhealthy and addictive.

Tobacco companies, if completely ethical, would not attempt to profit off of unhealthy products. In fact, some tobacco companies, like R. J. Reynolds, do have non-tobacco products in their roster ranging from T-shirts (Hanes and Stedman) to frozen desserts (Sara Lee) to snacks (Planters) that are not marketed under the parent corporation’s brand name, and which are kept as far away from their tobacco-centric commercial interests as possible. RJR, which was also criticized for their cartoon “Joe the Camel” advertisements for one of their Camel cigarette brands (which were seen as being deliberately enticing to children and teens), is likely hedging their bets and diversifying into other (non-cigarette) areas so they can stay profitable even as the laws and regulations about tobacco and tobacco products adapt and change to reflect ever-increasing societal concerns about the safety of tobacco products. If tobacco was to be made illegal tomorrow, RJR would probably survive, even if it did not thrive due to being gravely wounded financially.

Cigarette companies also market by arranging promotional events with cooperative bars and clubs and hiring attractive young people to go into bars with a tray of cigarette packs; free packs are then given out in exchange for mailing list information (after an ID is checked, they are very careful to make sure they only sign up adults). Smokers who accepted the freebies will soon be inundated with mail and catalogs and contest fliers by the tobacco company. Anti-smoking activists have compared this tactic with “drug pushing,” noting that nicotine is indeed an addictive drug, albeit a legal one, and those people who sell illegal drugs supposedly occasionally offer a “free first taste” to attract new customers.

If tobacco companies have to be compelled to put honest warning labels on their products, forced to stop advertising on radio and TV stations, and if they continue to try to find ways to market themselves in an oblique fashion and in seemingly benign ways (such as supporting the arts (and getting their name in, say, a Joffree ballet performance program as a sponsor) and providing funding for concerts (mostly large festival-type concerts like Lollapalooza, Bonnaroo, KnotFest or OzzFest which are typically most appealing to teens and young adults), or getting filmmakers to include their product prominently in a movie if one of their actors is portraying a smoker (you’ll either see a fake brand like Quentin Tarantino’s fictional Red Apple cigarettes or a real brand that a tobacco company wants to pay a fee to promote), or putting tobacco company logos on NASCAR vehicles), it is hard to argue that they are behaving “ethically” in the strictest sense of the word.

Tobacco companies tend to define “ethical” as “obeying the letter of the law” and “not marketing in an obvious way to underage children and teenagers” but exceptional and inarguable ethical behavior would likely include not selling a dangerous product at all, even if it is legal to do so. Tobacco companies like the hypothetical Winston Cigars, Inc. would do better to focus on promoting the fact that they act legally, and, if true, that they act responsibly (by obeying the law, being careful with the content of their marketing and advertising, and following all regional guidelines properly), but by asserting that they are also acting “ethically” strains credulity a bit. A tobacco company can’t survive without new customers to replace those that quit smoking, die or get sick, and attracting new customers requires tobacco companies to advertise and promote themselves: Seeking out new customers in order to sell new people an addictive and unhealthy product is difficult or impossible to do ethically, as you are knowingly causing physical harm to someone if you succeed and get new people to try and buy your products.

References

Twomey, D. P., and Jennings, M. M. (2011) Anderson’s Business Law and the Legal Environment. Retrieved from http://digitalbookshelf.southuniversity.edu

Federal trade Commission (FTC). (1999, March 3). FTC Accepts Settlement of Charges That Ads For Winston “No Additive” Cigarettes Are Deceptive: Settlement Requires R.J. Reynolds to Disclose in Future Ads that “No Additives” Does Not Mean a Safer Smoke. Retrieved from http://www.ftc.gov/opa/1999/03/winston.shtm

Action on Smoking and Health (ASH.org). (n.d. –1999?). R.J. Reynolds Tobacco Co., File No. 992-3025. Retrieved from http://ash.org/ftcadd.html

Centers for Disease Control and Prevention (CDC). (2010, February 9). Selected Actions of the U.S. Government Regarding the Regulation of Tobacco Sales, Marketing, and Use (excluding laws pertaining to agriculture or excise tax). Retrieved from http://www.cdc.gov/tobacco/data_statistics/by_topic/policy/legislation/index.htm

Larimer, S. (2009, March 4). ‘Winston Man’ Alan Landers, 68, Became a Critic of Big Tobacco. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2009/03/03/AR2009030303560.html

Biener L, Siegel M (March 2000). “Tobacco marketing and adolescent smoking: more support for a causal inference.” (Originally published in Am J Public Health 90 (3): 407–11.) Retrieved from http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.90.3.407

Friedman, L. C. (2009). Tobacco industry use of corporate social responsibility tactics as a sword and a shield on secondhand smoke issues (Abstract). Retrieved from http://www.ncbi.nlm.nih.gov/pubmed/20122118

Andre, C. & Velasquez, M. (n.d.). The Morality of Marketing the Marlboro Man. (originally published in Issues in Ethics – V. 1, N. 4 Summer 1988.) Retrieved from http://www.scu.edu/ethics/publications/iie/v1n4/marlboro.html

Ravo, N. (1987, March 8). Anti-Smoking Groups Question Ethics of Tobacco Concerns’ Gifts to the Arts. Retrieved from http://www.nytimes.com/1987/03/08/nyregion/anti-smoking-groups-question-ethics-of-tobacco-concerns-gifts-to-the-arts.html

Poirier, M (JTI-Macdonald Corp). (2002, October 16). Ethics vs. Activists: The Tobacco Experience: Notes for a Presentation to The Canadian Club. Retrieved from http://archive.tobacco.org/resources/Documents/021016poirier.html

 

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