Cigarette labels were bad. social media labels would be worse

By Stephen Mihm for Bloomberg Opinion

Last week, Vivek Murthy, surgeon general of the United States, warned that the use of social media among adolescents has contributed to a surge in anxiety and depression. In a widely read op-ed, he argued that Congress should take action, forcing the social media giants to attach warning labels on their products in much the same ways that it did with cigarette makers.

This may sound like a good idea, but the history of cigarette labels suggests otherwise. That earlier effort at warning consumers underscores how such well-intentioned measures can easily end up serving the interests of the corporations they were meant to regulate.

In the 1950s, scientific consensus was finally coalescing around the dangers of tobacco as a series of studies — some conducted under the auspices of the nation’s Public Health Service — established a clear connection between smoking and lung cancer. But the industry fought back, sowing doubt about the research and hiring doctors to argue that their products were safe. The turning point came in 1964, when a special committee appointed by President John F. Kennedy published a report that laid out an incontrovertible case that smoking was behind not only lung cancer, but a host of other ills.

The report gave regulators at the Federal Trade Commission a rationale to act. The agency, which regulated false or misleading product claims, argued that the tobacco companies would commit “an unfair or deceptive act” if they failed to disclose in advertising and on packaging that “cigarette smoking is dangerous to health and may cause death from cancer and other diseases.”

Lawyers advising the cigarette companies warned that the industry would soon be forced to accept some kind of labeling. In fact, a number of state legislatures soon started introducing bills that regulated the promotion of cigarettes. At the same time, some smokers who blamed the companies for cancer and other health issues started filing lawsuits. Confronted with these challenges, the tobacco industry shifted strategy.

In his account of this period, historian Allan Brandt has described how the tobacco industry turned the tables on its critics. “If the industry could not avoid government action,” Brandt writes, “it could ensure that … action was taken in their preferred venue: the US Congress.”

The industry knew it had allies in Congress who might help dilute the impact of warning labels; tobacco lobbyists worked closely with them to draft relatively innocuous language that would appear on every package of cigarettes: “Smoking may be hazardous to your health.”

But as Brandt has demonstrated, the strategy of enlisting Congress went well beyond political alliances. The lawyers who conceived of this strategy also did so because federal legislation about warning labels would effectively preempt other ways of holding the companies responsible.

This strategy of preemption, Brandt observes, meant several things. First, if the tobacco companies could get Congress to take the lead on warning labels, it could essentially forbid individual states from doing the same. In practice, this tied the hands of progressive states who wanted to force companies to be more explicit about the risks of cigarettes.

At the same time, with Congress taking the lead, the tobacco companies simultaneously preempted the regulatory authority of government agencies; the final version of the legislation explicitly forbade the FTC from exercising any regulatory oversight over the cigarette makers.

Finally, the labels preempted potential lawsuits. As Brandt notes: “Among the many advantages of legislation requiring a label was that it allowed the industry to insist — in court if necessary — that claims against the companies for negligence and deception were now moot.” The proposed labels insured that smokers had been warned. If they got lung cancer, it was their own fault.

The Federal Cigarette Labeling and Advertising Act of 1965 delivered everything that the tobacco industry wanted. It preserved the fiction that no scientific consensus existed — “smoking may be hazardous to your health” — while simultaneously thwarting federal regulators. Most importantly, it effectively stopped smokers from filing lawsuits against the companies.

This was well understood at the time. After the bill passed, the New York Times described the legislation as having protected “the economic health of the tobacco industry by freeing it of proper regulation.” In fact, a year later, rates of smoking, which briefly dipped after the 1964 report, had hit new all-time highs. And while smoking has finally fallen out of fashion in recent years — due in part to the spread of vaping — warning labels, even graphic ones, seem to have had little effect. Instead, the warnings’ lasting impact has been tobacco companies’ ability to dodge scrutiny and responsibility for decades.

This sorry episode holds lessons for today. While scientists eventually reached an accepted consensus on the ills of smoking, no such agreement exists about the effects of social media. This means that any warning label will be provisional, tentative and ambiguous, much like the one crafted by the tobacco companies nearly 60 years ago. Once in place, such a label would almost certainly complicated efforts to hold the tech companies responsible via other avenues, including federal regulation, state laws and individual lawsuits.

Or to distill this into to a package-size label: “Warning: enlisting Congress to put ambiguous declarations of danger on products will achieve nothing while simultaneously shielding the companies responsible.”