Israel Copied U.S. in Applying “Fairness Doctrine” to Cigarette Ads; Commercials Banned; Packs Must Be “Ugliest Color on Earth,” The Color of Feces
WASHINGTON, D.C. (June 11, 2019) – The Israeli government, using a legal strategy inspired by a U.S. law student, has adopted a “fairness doctrine “approach to cigarette advertising; mandating that newspapers and other print media which publish cigarette ads must also feature, in the same publication, and with a similar placement in the publication, an antismoking ad or health warning message of the same size.
This was inspired by the FCC's 1967 fairness doctrine decision which required free broadcast time for antismoking messages - one message for every three commercials - to provide a counterbalance to cigarette ads, and by the U.S. Court of Appeals decision which upheld the legality of the approach.
In the U.S., the FCC ruling forced radio and TV stations to provide hundreds of millions of dollars worth of broadcast time (and in the same time period as cigarette commercials) for antismoking messages.
These antismoking warnings triggered the first-ever decline in U.S. cigarette consumption - something even the Surgeon General's report on the dangers of smoking several years earlier was unable to do - and led directly to the U.S. ban on commercials advertising both cigarettes and small cigars.
Israel has likewise banned cigarette commercials, but it has also adopted a novel approach.
By law, cigarettes must be packaged in the color Pantone 488c, a muddy brown with a yellowish tint - the color of feces - which was found scientifically to be the "ugliest color on earth."
Perhaps they are trying to send a subliminal message about the odor and taste of tobacco smoke, says public interest law professor, who can claim to be the father of the counterbalancing approach.
While still a law student, Banzhaf filed a formal legal complaint with the FCC arguing that, under the Fairness Doctrine, broadcasters should be required to provide broadcast time free of charge for antismoking messages. The FCC agreed, requiring radio and TV stations to balance every three cigarette commercials with one antismoking message.
The FCC's ruling was challenged in court. But in a unanimous decision written by Chief Judge Bazelon, the U.S. Court of Appeals, in Banzhaf v. FCC, held that this approach was lawful and constitutional, and furthered the public interest.
This U.S. court decision was the inspiration for Israel's approach to dealing with print ads for cigarettes. Indeed, the original proposal included the same 3-1 ratio, but the final rule provides for an equal 1-to-1 balance.
Another example of the counter-balance approach can be found in the current legal requirement, ordered by a federal judge, that the major cigarette manufacturers publish statements confessing to the public about how they lied in the past about a variety of issues - including, for example, the addictive effects of nicotine.
This resulted from a major federal law suit which was triggered by a lengthy legal memorandum submitted to the government by Banzhaf, now a law professor.
That approach in turn was based upon a related concept now called "corrective advertising" which Banzhaf and his law students helped develop at the FTC, and which has subsequently been applied to many different products.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf