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Reagan Van Cleave

COMM 440- Communication Law

Government Regulation on Tobacco
Advertising in the United States

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The tobacco industry is one of the largest and most lucrative industries in the world,
valued at nearly 90 billion dollars. Approximately 10 billion of that is allotted to the advertising
of their products annually. Through the years, tobacco products such as cigarettes have been
advertised on major motion pictures, mass media, and various campaigns, as they were once a
common household staple. Today, the industry and its advertising is one of the most heavily
regulated entities by the United States Federal Government and around the globe. This paper
examines the history of cigarette advertising, the government regulation there of, and the various
court cases that have surfaced due to the regulations.


The first record of tobacco advertising was in 1789 when P. Lorillard and Company
advertised their tobacco products in the New York Daily Paper. 1 The tobacco companies used
their advertisements to target certain audiences. This was seen in the 1870s with the development
of color lithography, where tobacco companies could promote their product with images and
pictures they wanted to represent their brand. They used images of eagles, Civil War generals,
and American flags to target younger men. They also used young, thin models to attract women
to smoking.2
Well into the 1900s tobacco companies paid for numerous advertising campaigns to be placed in
daily newspapers. Tobacco companies created campaigns such as Winston Tastes Good, Like a
Cigarette Should, and Id Walk a Mile for a Camel, in order to entice people to adopt
smoking. These advertising campaigns aimed to glorify smoking and cigarettes to the public.
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Advertisements for cigarettes increased as the three major tobacco companies, P. Lorillard and
Company, Phillip Morris U.S.A. and R.J. Reynolds and Company, began to compete.
Leading up to World War II, cigarette advertising was primarily seen in print media with
colorful images and endorsements from celebrities of the time. During World War II, cigarettemanufacturing companies began to extend their promotions to target soldiers serving in the war.
They would send free cigarettes to soldiers hoping they would start to smoke. Eventually,
cigarettes became a part of the soldiers c-rations during the war. 3 At this time in history, the
negative health effects of cigarette smoking were still not publicly known, however some began
to speculate.
Following World War II, cigarette advertising moved beyond print media and word-ofmouth, to the television. In the early 1950s and 1960s tobacco companies began to run their
advertisements on television commercials. They also began to sponsor popular television shows
of the time such as To Tell the Truth and Ive Got a Secret. As television tobacco advertising
picked up, so did the speculation of cigarettes potential health risks. In late 1953, a health study
came out revealing that the tar in cigarettes could lead to lung cancer. Immediately, the major
tobacco companies retaliated by airing A Frank Statement to Cigarette Smokers, on January 4,
1954. This advertisement that made headlines, was one of the first to dispute findings that
cigarette smoking could lead to lung cancer and other adverse health effects. The advertisement
was included in over 400 newspapers and was estimated to have reached over 43 million people.4
As findings about the health risks of smoking emerged, tobacco companies increased
their advertisements. According to the History Channel, in 1969, tobacco companies were the
single largest product advertisers on television.5 Although reports alluded to the potential harms
of smoking, the advertisements did not stop; they were everywhere. Well into the turn of the

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century, many people continued to smoke. Many of the smokers had begun smoking at a very
young age, as they were most vulnerable to the tobacco companies excessive and specifically
targeted advertisements. For years, tobacco companies faced much criticism for targeting the
younger age group. According to the United States Department of Health and Human services,
The more young people are exposed to cigarette advertising and promotional activities, the
more likely they are to smoke.5 Their reports go further to say youth and young adults see
smoking in their social circles, movies they watch, video games they play, websites they visit,
and many communities where they live. Smoking is often portrayed as a social norm, and young
people exposed to these images are more likely to smoke.5 Because of their vulnerability, the
tobacco companies were attracted to the younger demographic to get them addicted to smoking
early on.
For many years tobacco companies were diverting negative claims about their smoking
products. However, in 1964 these claims became unavoidable when the United States Surgeon
General released a report linking cigarette smoking to lung cancer. In 1971, what tobacco
companies feared most became reality. President Richard Nixon signed into law that tobacco
products could no longer be advertised on radio and television. At 11:50PM on January 1, 1971,
the last televised cigarette commercial was aired during an episode of The Johnny Carson Show.5
When cigarettes and other tobacco products could no longer be advertised on radio and
television, tobacco companies moved their advertising elsewhere. From print media to radio and
television, the booming tobacco companies decided to take their brand into the motion picture
industry. In 1979 Phillip Morris spent $42,500 to have their Marlboro brand cigarettes to appear
in the film SuperMan II. Again in 1988, Phillip Morris paid $350,000 for their cigarettes to
appear in the James Bond film Licensed to Kill.6 With the heavy restrictions imposed by the

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government, tobacco companies were looking for any opportunity to continue their
One of the biggest markets for tobacco advertising was in sports racing, as regulations
had not reached the market yet. Phillip Morris was one of the main sponsors for Formula One
racing, specifically Ferrari. In fact, Ferrari even changed their car name to Scuderia Ferrari
Marlboro.7 In 2005 when Ferrari signed with Phillip Morris, the F1 car was in full Marlboro red,
showcasing the Logo along with the pit crew who wore Marlboro Jumpsuits. In 2007, Ferrari
was the only team to be backed by a tobacco brand as the image around tobacco companies
began to decline.7 Since 2008, Ferrari has continued to keep their sponsorship with Phillip
Morris but has removed Marlboro and its brand from all of its cars, attire and even its name due
to pressure from the industry.7
At roughly the same time as partnering with Ferrari in Formula One racing, Phillip
Morris got involved with Indy Car racing. The Marlboro Indy Car first appeared at the 1986
Indianapolis 500, and became one of the most well known names in the industry. Marlboro went
on to partner with Patrick Racing to sponsor two more cars in 1987. As government regulations
had still not tightened in the industry, Phillip Morris decided to take their sponsorship of Indy
Car to a whole new level by creating the Marlboro 500, Marlboro Grand Prix, and an awards
program called the Marlboro Million. In 1990, the Marlboro brand moved to the Penske Team
as the largest sponsor of their two cars. The partnership between Penske and Phillip Morris was a
faithful one until 2009 when the Master Settlement Agreement required that the Marlboro logo
be removed from the cars.
One of the most well known sporting events in history was the NASCAR Winston Cup.
R.J. Reynolds Tobacco Company, owner of Winston brand cigarettes, decided to delve into the

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sports car racing business in 1970 after the major ban of tobacco products on television and
radio. Since the Winston Cup was a highly televised event, it was R.J. Reynolds loophole in
getting back on television. R.J. Reynolds even sponsored its own Camel car to race in the event.
In 2003, after almost 30 years, R.J. Reynolds withdrew its sponsorship of NASCAR due to what
they claimed as financial concerns within the company.8 Today, the Winston Cup has a new
sponsor, and now is called The Sprint Cup.
Despite the increasing government regulation in more recent years, tobacco companies
continue to spend billions on advertising and promotion for their products. In 2012, the last
record of tobacco advertisements, the FTC (Federal Trade Commission) recorded a $9.168
billion advertising budget by the tobacco industry, a ten percent increase from the previous year.9
Today, the industry no longer advertises on many platforms due to regulations. These platforms
include radio, television, online, and major sporting and entertainment events throughout the
United States. In more recent years the tobacco industry has spent most of its advertising budget
on price discounts to cigarette retailers, outdoor advertisements (billboards, signs and placards,)
point-of-sale promotional displays, direct mail and adult-only advertising. 7 Native advertising
has grown increasingly popular within tobacco advertising due to the regulations. Marlboro had a
recorded mailing list of over 26 million in 2005.10 While tobacco companies have seen a major
decrease in sale of cigarettes, they continue to increase their advertising. 7

Government Regulations

In the 1800s and into the 20th century, tobacco product promotions dominated the advertising
industry. They were seen on every major daily newspaper and magazine. Into the network era,

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tobacco commercials were seen on numerous television channels. For over a century, these
excessive and persuasive advertisements went unregulated by the United States government.
However, when the nations health began to suffer from an unknown cause, doctors and
scientists began to investigate the increasingly popular smoking trend.4
According to the History Channel, Alarming health studies emerged as early as 1939
that linked cigarette smoking to higher incidences of cancer and heart disease and, by the end of
the 1950s, all states had laws prohibiting the sale of cigarettes to minors.5 As speculation
regarding the health risks of smoking became inevitable, tobacco companies released
advertisements and statements on air refuting these supposed fallacious claims. The companies
stated that allegations concerning dangerous health effects were unproven and false.4 The
industry even went as far as to get testimonies from their own doctors to advertise to the public.
R.J. Reynolds, one of the nations largest tobacco companies ran a campaign with the tagline
More Doctors Smoke Camels to gain trust back from smokers in speculation.4
While cigarette companies tried to combat these reports and findings, they did not cease.
In 1964 the Federal Trade Commission (FTC) and the Federal Communication Commission
(FCC) determined that tobacco companies should be held responsible to warn the public of the
negative health effects of cigarette smoking.5 With this determination, coupled with increased
televised cigarette advertising, research on the effects of smoking increased. In opposition to the
tobacco companies statement about no known health risks, the Surgeon General of the United
States released a statement on the true effects that same year. Smoking and Health Report of the
Advisory Committee to the Surgeon General of the United States was comprised of over 7000
scientific articles that linked smoking to cancer and other harmful diseases. 11

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Because of this report, in 1966 the United States Federal Government passed the Federal
Cigarette Labeling and Advertising Act of 1966. This law required manufacturers, packagers,
and importers to place one of four statutorily-prescribed health-related warnings on cigarette
packages and in advertisements, on a rotating basis. 12 Warnings included Cigarette Smoking is
Dangerous to Health. It May Cause Death From Cancer and Other Diseases. The FTC also
required that cigarette packages include tar and nicotine levels. The FTC was firm in their belief
that tobacco companies were deceptive in their advertising and disseminated misinformation
about the health of cigarettes.10 The packaging regulations were designed by the FTC to counter
the deceptive advertisement in the interest of the public. Congress had originally passed a
separate bill, The Cigarette Labeling and Advertising Act of 1965, but later amended it, as it
was said to favor the tobacco industries. 13 The original bill only required the warning label to
state Cigarette Smoking May Be Hazardous to Your Health.10 The FTC believed the original
warning left much room for the tobacco companies to refute the claims. 10 The original bill also
did not require the tobacco companies to put warning label on any advertisements, and in fact
required a three-year prohibition of such warning labels.10
This first regulation was the beginning to the United States Federal Government keeping
a close watchful eye over the tobacco industry and its advertising. While the Federal Cigarette
Labeling and Advertising Act of 1966 put forth many obstacles for the tobacco industry, it did
not slow down their amount of advertisements. In 1969, cigarettes and other tobacco products
were the most advertised commodities on television.5 The warning labels required by the bill
were placed in very small print on tobacco advertisements. With the increase in advertisements,
the government feared for the health of the nation and continued to do more research on the
health risks of smoking. In 1969 the Surgeon General came out with another report on smoking.

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This time, the report linked cigarette smoking to low birth weight in pregnant women. After
much pressure from the public health sector, congress signed the Public Health Cigarette
Smoking Act of 1969. This act amended cigarette packages to say, The Surgeon General Has
Determined That Cigarette Smoking is Dangerous To Your Health. It also temporarily preempted FTC requirements of health labels on advertisements.11 Most importantly, it banned all
cigarette advertising from radio and television by the authority of the United States Department
of Justice.14 As historians recall the event, cigarette makers defended their industry with
attempts to negate the growing evidence that nicotine was addictive and that cigarette smoking
caused cancer. Though they continued to bombard unregulated print media with ads for
cigarettes, tobacco companies lost the regulatory battle over television and radio.5
On April 1, 1970, President Richard Nixon signed the bill into law. 5 President Nixon was
praised in his approval for the new law. Howard Koh, former Assistant Secretary of Health for
the United States Department of Health and Human Services, was quoted saying this is truly a
historic announcement in our country's public health history. This is designed to prevent our
children from becoming the next generation of Americans to die early from tobacco-related
illnesses."15 Along with Koh, many law officials believe this to be the start of the era of negative
public opinion of tobacco use. 10
For many years, congress and government agencies continued to find ways to regulate the
tobacco industry further. In 1984, congress amended the 1966 Federal Cigarette Labeling and
Advertising act by introducing the Comprehensive Smoking Education Act. This act required
that cigarette packaging contain one of four rotating warning labels such as complicate
pregnancy; quitting smoking now greatly reduces serious risks to your health; smoking by
pregnant women may result in fetal injury, premature birth, and low birth weight; cigarette

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smoke contains carbon monoxide.16 These warnings were intended to close the gap on
misinformation put out by tobacco companies. The bill also required the Department of Health
and Human Services to publish a biennial status report to Congress on smoking and health, the
creation of a Federal Interagency Committee on Smoking and Health and for cigarette companies
to provide a confidential list of ingredients added to cigarettes manufactured in or imported into
the United States.13 This bill worked to keep distribution of tobacco products within government
Although the government continued to heavily regulate the tobacco industry, many
Americans were dying from smoke related illnesses. In 1998, congress decided that tobacco
companies must take responsibility and passed The Master Settlement Agreement. In this
agreement, the Attorney Generals of 46 states and the District of Columbia signed the Master
Settlement Agreement with the four largest tobacco companies in the United States, Phillip
Morris USA, R.J. Reynolds American Inc, P.Lorrilard and Co., and Brown and Williamson.17 The
companies agreed to pay the states billions of dollars annually to compensate for tobacco-related
health care costs, accept limitations on outdoor, billboard and public transit advertising, prohibit
tobacco advertising that targets people younger than 18, including the use of cartoons, and
prohibit the use of cigarette brand names on other products. 14 In addition to these limitations,
tobacco companies agreed to pay states a budget of $206 billion for the first twenty-five years to
fund anti-smoking campaigns such as the The Truth Initiative, formerly the American Legacy
Foundation.14 The MSA ensured that individual states would no longer pay for the negative
implications of cigarette smoking.
With all the regulations and the negative stigma associated with cigarettes, tobacco
companies developed additive-free cigarettes intended to be advertised as a healthier alternative

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to regular cigarettes. Additive-free cigarettes such as Natural American Spirits were the
tobacco companies way to gain back customers they had lost with the restrictive hazardousclaiming health warnings. However, in 2000 the FTC ruled that these cigarettes must also
contain the Surgeon Generals warnings as they are no safer than regular cigarettes.18 Once again,
the tobacco companies were at a disadvantage.
The United States federal Government has aimed its regulations at combating tobacco
companies deceptive and persuasive advertising towards children and young adults, as they are
more vulnerable to these practices. Research has shown that most long-term smokers adopted
smoking at an early age. The U.S. Department of Health and Human Services quotes, Every
day, more than 1,200 people in this country die due to smoking. For each of those deaths, at least
two youth or young adults become regular smokers each day. Almost 90% of those replacement
smokers smoke their first cigarette by age 18.5 Research goes on to say, among youth who
persist in smoking, a third will die prematurely from smoking.5 Despite this research, tobacco
companies have not denied their advertising specifically to younger adults. In fact, Phillip Morris
Tobacco Company has been quoted saying, todays teenager is tomorrows regular customer!19
According to R.J. Reynolds Company, the Joe Camel campaign was created to advertise the
camel brand to young adult smokers. 20
In 2009, congress perfected a bill to protect children from the tobacco companies
harmful advertising practices. The bill, Family Smoking Prevention and Tobacco Control Act,
restricts tobacco product advertising and marketing to youth by directing the Food and Drug
Administration (FDA) to issue regulations such as, limiting the color and design of cigarette
packages and prohibiting tobacco product sponsorship of major sporting entertainment, or
cultural events. The bill also prohibits free samples of cigarettes or smokeless tobacco and

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prohibits tobacco brand names on non-tobacco products.21 The FDA claims their goal for the
Tobacco Control act is to curb the trend of children becoming addicted before they are old
enough to understand the risks, and prevent these vulnerable new users from
dying too young of tobacco-related diseases.22
Today, many industries and companies have agreed to the harsh regulations for the tobacco
industry and their advertising. Universal Pictures has a policy regarding tobacco use in films that
state, films anticipated to be released in the United States with a G, PG or PG-13 rating,
smoking incidents (depiction of tobacco smoking, tobacco-related signage or paraphernalia)
appear only when there is a substantial reason for doing so. In that case, the film is released with
a health warning in end credits, DVD packaging, etc.23 Ted Turner, founder of the Cartoon
Network, took steps to remove or edit scenes that depict characters smoking in cartoons such as
Tom and Jerry, The Flintstones and Scooby-Doo.24 Regulations have even been adapted to fit
new technological trends. Both Google and Microsoft have implemented policies outlawing the
promotion of tobacco products on their advertising networks.25
With the support of numerous industries and companies, tobacco products and their advertising
are watched with a close eye. The tobacco industry is one of the only industries to be heavily
regulated by both the FCC, FDA, FTC, and other United States public health sectors whose aim
is to deter smoking related deaths among Americans. However, despite these hefty regulations,
the tobacco industry continues to thrive as one of the worlds most profitable industries.

Court Cases

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In the midst of creating and increasing government regulation for tobacco advertising,
issues and grievances between both parties arose. Tobacco companies were not always in favor
of the governments bills regulating the industry. Several times, tobacco companies were taken to
court over their violation of advertising laws and procedures. Also, with the publication of
tobacco products negative health risks, the public asserted the blame to major tobacco
companies for their illnesses and fatalities.
Many times, tobacco companies tried to fight regulations imposed by the government. In
2000, P. Lorillard Tobacco Company fought the regulations of the Federal Cigarette Labeling and
Advertising Act of 1966 in the case Lorillard Tobacco Company v. Reilly. Lorillard thought the
regulations violated the first and fourteenth amendments, the liberties and rights of individuals.
However, the district courts upheld their rulings. 26 The courts also ruled, neither the regulations
prohibiting outdoor advertising within 1,000 feet of a school or playground nor the sales
practices regulations restricting the location and distribution of tobacco products violated the
First Amendment.24 The courts were, however, in favor of dismissing the point-of-sale
regulations that required tobacco advertising to be no lower than five feet from the ground
because the Attorney General did not provide sufficient justification for that restriction.24
The United States government continued to defend the health of the American people that were
at risk due to the use of tobacco products. The Racketeer Influenced and Corrupt Organizations
Act (RICO) also known as the Organized Crime Control Act of 1970 was enacted by congress to
provide criminal penalties for acts a part of a criminal organization. The act aims to try leaders of
these organizations for crimes they have done or assisted others in doing. 27 In 2006, the United
States Department of Justice (DOJ) determined tobacco companies had engaged in a decadeslong conspiracy to (1) mislead the public about the risks of smoking, (2) mislead the public about

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the danger of secondhand smoke; (3) misrepresent the addictiveness of nicotine, (4) manipulate
the nicotine delivery of cigarettes, (5) deceptively market cigarettes characterized as light or
low tar, while knowing that those cigarettes were at least as hazardous as full flavored
cigarettes, (6) target the youth market; and (7) not produce safer cigarettes. 28 The ruling
determined that tobacco companies had been engaging in deceptive advertising for years.
Following the determination made by the DOJ, Judge Kessler issued a 1,683-page opinion ruling
tobacco companies had violated the RICO and will be tried in court.26 The tobacco companies
appealed this ruling in cases such as United States v. Phillip Morris. However, all rulings were
upheld in all appeal cases.26
When the true health risks of cigarette smoking were publicized, smokers were quick to blame
tobacco companies for their poor health. Many smokers sued tobacco companies to secure
money to cover the costs associated with their chronic and sometimes fatal illnesses. One of the
most notable cases is Engle v. R.J. Reynolds Tobacco Co., in which Howard Engle, among nine
other lifetime smokers, sought monetary compensation for the medical conditions caused by
their addiction to nicotine-based cigarettes.29 The verdict favored the plaintiffs and awarded $145
billion in punitive damages among the Engle Class. However, the award was reversed in Engle
v. Liggett, because it was determined too excessive a punishment as a matter of law.27
The Engle Class court cases brought about several more class action lawsuits by citizens who
have died or become ill from the negative effects of cigarette smoking. These cases were
classified by the media and in law terms as Engle Progeny.17 Engle Progeny cases were
typically ruled in favor of the plaintiff. In Berger v. Phillip Morris U.S.A., Judith Berger received
a damage reward of $20 million, claiming tobacco companies targeted her as a child. The most
known Engle Progeny case was the Supreme Court case, Phillip Morris U.S.A. v. Williams in

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which the plaintiff, a representative of the Williams estate, accused Phillip Morris of having
deceptive advertising practices leading to the death of Jesse Williams.30 The jury found that Jesse
Williams death was caused by smoking and that petitioner Philip Morris, which manufactured
the cigarettes he favored, knowingly and falsely led him to believe that smoking was safe.27 In
reward, the court awarded the Williams Estate $821,000 in compensatory damages and $79.5
million in punitive damages to the respondent. Phillip Morris took the ruling to the appeals court
claiming $79.5 million in punitive damages was a grossly excessive punitive award.27
However, the ruling and awards were upheld.

Since the public release of the adverse side effects and poor health associated with cigarette
smoking, consumers have found new ways to get the nicotine they are addicted to. E-cigarettes
(electronic cigarettes) are a smoking alternative that liquidates nicotine to be inhaled and exhaled
as water vapor. Nicotine in electronic cigarettes can be anywhere from 0-48mg. Electronic
cigarettes can have just as much, if not more, nicotine than a pack of cigarettes that contains
24mg of nicotine.
Many have wondered if e-cigarettes are truly a healthier alternative to traditional cigarette
smoking. The CDC and FDA have done many studies on the effects of electronic cigarettes.
Unlike traditional cigarettes, the FDA does not regulate electronic cigarettes; therefore,
consumers are using the product at their own risk. However, with research, the FDA has released
a correlation between e-cigarette use and what they have deemed as Adverse Events. The
FDA has defined adverse events as, an undesirable side effect or unexpected health
or product quality problem.


Some adverse events reported to the FDA on

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electronic cigarettes include pneumonia, seizures, hypotension, and

congestive heart failure.31 At this point, the FDA only has jurisdiction to
regulate smoking and smokeless tobacco products. Because electronic
cigarettes do not contain tobacco, the regulation does not extend to them.
However, because of the consumers lack of knowledge of the product, the
FDA has proposed a rule that would extend their regulations to cover
electronic cigarettes.
At the state level, states are looking for ways to make sure electronic
cigarettes stay out of childrens hands. Since the health risks are not known
and since it has not been proven that e-cigarettes are a healthy alternative
to cigarettes, states are keeping a watchful eye on them. According to the
National Conference of state legislatures, 41 states have banned the sale of
electronic cigarettes to minors or anyone under the age of 18. 32 However, the
American Lung Association and the American Cancer Society Cancer Action
Network are fighting these bills as they use language that could make it
harder to regulate electronic cigarettes like tobacco products.32 They argue
that minors will find ways to get around these laws. Those in opposition to
the bills propose raising the taxes on the products so that minors, who are
typically on a low income, cannot afford the product. About 40% of the price
of a pack of cigarettes comes from tax, says Bonnie Herzog, an e-cigarette
industry analyst with Wells Fargo Securities.32 Electronic cigarette makers
and small local vapor shops target minors by offering them prices cheaper
than traditional cigarettes. With regulations from the FDA and finely tuned

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regulations at the state level, law-making officials are trying to prevent

electronic cigarettes misleading advertising practices similar to that of the
tobacco industry.


Government regulation has changed since the first publication of tobacco advertising in
1789. Regulations increased as the government uncovered deceptive advertising practices along
with destructive health risks associated with tobacco products. Tobacco companies and their
advertising have been to blame for the deaths and illnesses of the human population. Users of
their products have fought to receive compensation for the medical conditions caused by their
addictions to nicotine-based products. For the sake of the population, the CDC has recorded that
nearly half of all Americans who had once smoked, have quit.33 While anti-smoking
campaigns and numerous health reports have decreased the number of
smokers and damaged the reputation of many tobacco companies, it is still
one of the most profitable industries in the world.

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