Directing the FCC to investigate instances of cigarette usage in
movies and its effect on children
Cassandra H. Welch*
“[T]he film is
better than any commercial that has been run on Television or any magazine…”[1]
There has long been concern over violence, profanity and sexually explicit material in movies. Parents worry about how watching those types of behaviors can affect their children. There has also been concern over the targeting of young people by tobacco companies in advertising. However, the confluence of these two concerns is not a subject in the spotlight even though there has been research that has shown that the use of tobacco products in movies makes young people who view them more likely to smoke.
While parents may not want their children to view movies that show characters exhibiting morals and violent behavior that they would disagree with, this has not held over to the use of tobacco by characters in movies. How smoking is portrayed in movies, although it may not always be used to advertise a particular brand of tobacco products as it once was, can still have a similar impact as an advertisement by demonstrating a use of cigarettes by an individual with “desirable” characteristics and not showing any of the negative effects of smoking.
The Motion Picture Association of America voluntarily started a system to rate movies, but this system does not take into consideration the use of tobacco in movies. This omission is one that should concern all parents who wish to instill in their children a non-smoking mind-set. This proposal outlines a legislative approach toward the creation of a method for the identification of instances of cigarette usage in movies that will provide parents with information, such as a variation of the current rating system used in movies. This will then allow parents to determine the extent to which they would like to expose their children to indirect advertising for cigarettes.
The proposed legislation would direct the Federal Communications Commission (FCC) to investigate the effect that viewing instances of cigarette smoking in movies has on children and the availability of movies with those instances to children. This investigation will result in a report that can identify a more subtle type of cigarette advertising – the use of cigarettes in movies.
Parents do not have the ability to screen movies for their presentation of smoking in the same way they can for violence, even though it is something that can greatly influence their children. Movie ratings currently exist to allow parents to determine what their children will be exposed to in terms of violence, profanity and sexually explicit material only. Since the way smoking is depicted in movies is essentially equivalent to the tobacco advertising that is already banned on electronic media, parents have the right to make sure that their children are not subjected to this influence.
Currently, the rating systems in movies are done voluntarily by the industry. This may make it difficult to mandate a rating system. The FCC’s investigation could bring the public’s attention to this matter, and that in effect could encourage the industry to look into modifying the ratings or creating new ratings that only address cigarette use in the movies. Making this matter public might also encourage the Attorney General to pressure the Motion Picture Association of America to make changes to the rating system or implement a new rating system specifically for cigarette use.
Cigarette advertising has received scrutiny for its believed link with smoking. The advertisements are seen to influence people – as any well designed advertisement would – to purchase and use the product. Advertising of cigarettes has been prohibited on electronic media in its traditional forms. However, cigarettes are still used in movies and are often not shown with any negative consequences. While it may be difficult to directly regulate the use of cigarettes in movies as that may raise First Amendment issues, this does not mean that nothing can be done about this type of advertising. A legislative approach to addressing the issue of tobacco use in movies can provide a means for initiating change in the industry.
The use of cigarettes in movies is not likely to change in the near future. To encourage the industry to investigate the impact of smoking in their movies or at least to make parents aware of how smoking is depicted in each film, there will need to be something from outside of the industry to instigate this change. An FCC investigation would provide the needed publicity and visibility to the issue to make the industry inform parents about the occurrences of smoking in movies.
This proposal can bring the issue to the front of the minds of parents who are concerned about their children’s use of cigarettes. Many parents may not be thinking about the psychological impact that watching a celebrity, whom a child admires, smoking may have on a child. The effect is not as obvious as it might be if the act was an excessively violent one. Just as parents would not want their child to imitate the violent behavior they see in movies, parents would not want their children to imitate the smoking behavior that is shown in movies. Many parents are not thinking in those terms, but this proposal could make that analogy clear for parents.
The publicity behind the process and results will help to lead to the pressure needed to make changes in the ratings and provide parents with advanced information about tobacco use in movies. Taking this approach can have a great impact for the future. Through awareness of the portrayal of cigarette use in movies and the impact that can have on children, parents who value a non-smoking lifestyle for their children will be encouraged to pay closer attention to smoking in what their children watch and may be moved to pressure the industry themselves. This approach can put into motion a chain of events to make sure that in the future, parents do not unwittingly expose their children to the dangerous effects of cigarette smoke – either the direct health risks of second hand smoke or the risk of their children taking up the habit because they see their favorite movie stars smoking in all of their favorite movies.
This paper offers a proposal for a legislative approach to an aspect of nonsmokers rights – the right of nonsmoking parents to have enough information about smoking use in movies to ensure that their children are exposed to it in such great degrees as to be a stronger influence toward smoking initiation than their parents can offer against smoking initiation. An FCC investigation directed by such legislation can lead to the creation of a ratings system that informs parents about how often cigarettes are used in a movie and how they are portrayed to preserve the right of parents to ensure that their children are not subjected to the type of advertising, already banned by the government, that can have a negative influence on their children. Part I identifies the background on bans and limitations on tobacco advertising. Part II addresses the motion picture aspect of this proposal: product placement in movies, the current Motion Picture Association of America ratings system, and the influence that cigarette use in movies can have on youth. In Part III, a legislative approach to the problem is outlined. Part IV details the potential impact and benefits of such an approach. Part V concludes that the enactment of such legislation will create the awareness needed to make changes in the form of ratings related to cigarette use in movies so that children are not exposed to such advertising.
I. Limitations on
Tobacco Advertising
Tobacco products have never been openly
accepted in society,[2]
and restrictions on advertisements for those products have been put into place.[3] These restrictions have not been based solely
on the fact that tobacco is not universally accepted; recent regulation of
advertising has come into place because of concerns about its effect on youth.[4] It is within this framework that any action
related to the advertising of tobacco products must operate, and thus it is
important to examine both the current state of regulations and the rationale
for such regulations.
The
habit of smoking cigarettes is one that has known links to disease and
death. It has been estimated to cause
over 400,000 deaths annually in the
Those in the tobacco industry have long recognized the power of advertising in helping people to develop this harmful habit. In a 1915 interview, R.J. Reynolds explained why he had such a strong belief in advertising: when he initiated a small advertising budget, his sales rose dramatically and an even greater increase in the advertising budget the following year resulted in a doubling of sales.[8] Reynolds anecdotal evidence is not the only evidence supporting the influence of advertising for tobacco products; there are many studies that support Reynolds in his belief in the power and success of advertising.[9]
Concerns about tobacco advertising are often related to how it can influence children and adolescents.[10] Considering that a majority of adult smokers report that they first tried a cigarette under the age of 18,[11] this concern is warranted. Advertising generally can have one of two purposes: to convince current customers to switch from one brand to another or to bring new customers into the marketplace.[12] A historical analysis of tobacco advertising has demonstrated that it tends to have the later result, although that may be limited to its effect on adolescents.[13]
Tobacco companies have targeted youth in their advertising.[14] In 1976, one tobacco company began a study code-named “Project Sixteen” that had participants, who were sixteen and seventeen year old smokers, to determine how smoking started and attitudes toward smoking so that they could analyze advertising strategies.[15] Cigarettes became associated with desirable, abstract traits such as autonomy, independence and sexuality – traits that cigarettes would not have been associated with in the absence of advertising.[16] Since the result of such advertising is to influence adolescents,[17] attempts have been made to limit advertising so as to reduce the impact that seeing advertising, which portrays smoking as having desirable traits or otherwise associates smoking with desirable traits, can have on children and adolescents.
Following the 1964 U.S. Surgeon General report linking smoking and lung cancer, which was the first government report identifying the health risks of smoking in the U.S., the first government regulation was implemented: the Federal Cigarette Labeling and Advertising Act.[18] This initial regulation required that a warning that smoking may be hazardous to health to be placed on all cigarette packages.[19] In 1971, the Public Health Cigarette Smoking Act was enacted, which not only changed the warning to a stronger statement of the relationship between smoking and health problems but also banned advertising on tobacco products via modes of electronic communication such as television and radio broadcasts.[20]
All
of the regulation regarding tobacco advertising has not been through
legislation.[21] Attorneys General from 46 states as well as
the
The industry has also implemented self-regulation at times. For example, the Cigarette Advertising and Promotion Code was adopted by the cigarette manufacturers to “emphasize their policy that smoking is solely for adults.”[25] This code outlines guidelines regarding advertising that provide that advertisements won’t use messages or individuals that would be particularly appealing to children.[26] These guidelines combine previous restrictions placed on the industry but are compiled and outlined by cigarette manufacturers to assert that their advertising does not target children.[27] The restrictions created through legal means are still controlling for restricting the advertising of tobacco products.
II. Tobacco Products in
Motion Pictures
In the movie Risky Business, actor Tom Cruise is seen dancing wearing little more than Ray-Ban sunglasses.[28] Following the release of the movie, sales of those glasses tripled.[29] This type of product placement is not limited to items that are meant to be attractive to adults. Steven Spielberg approached candy makers about having an alien eat a certain candy in one of his movies. Hershey liked Spielberg’s proposal and Reese’s Pieces were eaten by E.T. in the movie; sales went up more than 65 percent following the release of the movie E.T.[30]
Knowing how powerful it can be to have products used by popular actors (or characters) in movies has resulted in a big business: the placing products in such a flattering light. For the recent James Bond movie, Die Another Day, MGM spent nearly $30 million advertising its movie.[31] Ford Motor Company alone is reported to have paid $35 million dollars to have Bond drive their Aston-Martin instead of his usual BMW, and all advertising sponsors are believed to have contributed at least $100 million in marketing.[32] While some of this may be related to the flurry of advertising outside of the movie,[33] there is a great amount of money spent specifically on product placement to ensure that products are included in movies. It is estimated that manufacturers spend between $5 and $50 million annually to place their products in movies.[34]
Cigarette
manufacturers have participated in such product placement in the past.[35] Beginning in 1990 cigarette manufacturers
agreed to a voluntary ban of such product placement.[36] There were questions as to whether that
actually did stop cigarette manufacturers’ involvement in movies as they were still
able to supply props free of charge.[37] In 1998, cigarette manufacturers agreed to a
settlement with
Even with a voluntary ban and the ban imposed by the settlement, there are still concerns over whether the practice of placing tobacco products in movies has entirely stopped.[39] When movies can be such a strong influence on young adults,[40] it is not unreasonable to suspect that such practices have not fully ended, especially when those in the industry are aware of how influential product placement can be.
Parents are also aware of how influential it can be when children and adolescents view excessive violence, profanity and sexually explicit material in movies. Recognizing this concern, the Motion Picture Association of America (MPAA) voluntarily began a rating system designed to inform parents of the content of movies.[41] It was “the mix of new social currents, the irresistible force of creators determined to make ‘their’ films and the possible intrusion of government into the movie arena” that made President of the MPAA, Jack Valenti, decide that immediate action should be taken and a voluntary rating system was developed.[42]
The ratings are designed to give cautionary warnings to parents when there is violence, language, nudity, sensuality, and/or drug abuse among other elements in a film.[43] These warnings are seen as important by many parents. PSVRatings, a group providing information on profanity, sex and violence in the media, notes that profanity is used four times more often by the “good guys” than the “bad guys” in movies and provides information on exposure to sex and violence and its impact on youth.[44] There is research that suggests that concerns about the effect of such exposure are warranted. For example, even brief exposure to violent scenes can increase aggression and repeated exposure increases aggressiveness in young adults and is a significant factor in youth violence.[45] Since there are concerns that viewing such material can influence behavior in young adults, the MPAA ratings system has been important to ensure that parents have the opportunity to prevent their children from being negatively influenced by what they see in the movies.
Profanity, sex and violence are not the only things that frequently appear in movies that can influence children and adolescents. In a similar manner to the way other vices are portrayed, cigarette use is rarely shown with negative consequences and often used by characters with whom viewers might identify.[46] Current research often suggests that it is social influences in the lives of adolescents that impact their smoking behavior. “Adolescents start smoking in response to social influences, emulating the behaviour of friends, family members, and other people they admire.”[47] If the sole influence on smoking behavior was social behavior physically present in the lives of adolescents, there may be little cause for concern over the incidence of cigarette use in movies.
Advertising is also an influence that can cause adolescents to start smoking.[48] There is a great similarity between advertising and the use of products in movies.[49] “Movie images, like commercial advertising, associate smoking with celebrities and depict it as an attractive behaviour. In popular contemporary movies, smoking is frequently associated with characteristics many adolescents find appealing—such as toughness, sexiness, and rebelliousness.”[50] The association with these celebrities can also be a social influence that impacts the smoking behavior of adolescents. While profanity, sex and violence aren’t meant to sell specific products, use of cigarettes can have that result. Therefore, how cigarettes are used in movies warrants further investigation.
While there is a ban on payments for product placement, cigarette products are still seen in movies. In fact, following the product placement ban, the types of appearances that cigarette products have in movies have changed from being endorsed by actors 1% of the time before the ban to being endorsed by actors 6% of the time following the ban with no significant difference in the frequency of tobacco brand appearances in movies.[51] Additionally, the “vast majority” of contemporary movies contain tobacco products.[52] The evidence suggests that there is a lot of tobacco use in popular movies, but that alone is not enough to indicate that these instances of tobacco use amount to advertising.
The use of tobacco products in movies does seem to reach children and adolescents. The occurrences of smoking in movies are not limited to adult-oriented movies; there are many films that are popular with adolescent audiences that do include the use of tobacco.[53] In fact, of the most popular films rated PG and PG-13 from 1988 to 1997, only 10% did not include smoking instances.[54] The viewing of these films is not limited to the movies that adolescents see in the theater as movie channels and videos increase their access to movies.[55] Adolescents are also avid consumers of movies; typical adolescents will watch 2-3 hours of television and films each day and 150 movies per year.[56] In a study of approximately 2600 adolescents, only five of those adolescents had not been exposed to movie smoking based on a list of 50 randomly selected movies.[57] The typical adolescent who watches 150 movies a year will be exposed to 800 instances of smoking in movies a year.[58] The extent of movie viewing by adolescents and extent to which movies contain tobacco use suggests that adolescents have ample opportunity to see tobacco in the way it is portrayed in movies.
This exposure appears to have an influence on the behavior of these children and adolescents. Given that “most movies are similar to tobacco advertisements in that they portray only positive images of beautiful stars using tobacco,”[59] it is not surprising that there is an effect. Among adolescents who have never smoked, there is a strong relationship between positive attitudes toward smoking and viewing tobacco in movies.[60] This suggests that the exposure to celebrities using tobacco products in movies does have an impact on adolescents’ attitudes.
Viewing tobacco in movies does more than simply influence the attitudes that adolescents have toward smoking. “[V]iewing smoking in movies strongly predicts whether or not adolescents initiate smoking.”[61] Studies have found that the adolescents who view the most smoking in movies have “significantly higher odds of trying smoking.”[62] One study determined that 52.2% of smoking initiation could be attributed to the exposure to tobacco use in movies.[63] That influence is found even after controlling for covariates,[64] and a similar “strong, direct, and independent association” has been found between smoking by adolescents and high exposure to tobacco in films.[65] Given that the typical adolescent is exposed to a high number of instances of tobacco use in movies,[66] the results of these studies are quite troubling.
The effects of viewing tobacco use in movies can be stronger than that of normal advertising. The effect was strongest among adolescents who have parents who do not smoke.[67] Perhaps this is because as adolescents see more movies with more instances of tobacco use in them, the effect is similar to that of having parents who smoke or siblings who smoke,[68] and thus it is strongest when that influence is not already present. This type of social influence caused by viewing tobacco use in movies is not limited to those who do not already have a social influence at home of parents who smoke. Seeing tobacco used in films can reduce the resistance that adolescents will have to peer offers to smoke.[69] The exposure to tobacco use in movie in the amount of which is typical for adolescents is nearly as influential as having friends who smoke.[70] The use of tobacco in movies can be very significant in developing adolescents’ attitudes toward smoking and the initiation of smoking behavior.
III. Legislative
Approach to the Problem
Much of the
previous action regulating tobacco has come from Congressional action.[71] The Master Settlement did provide additional
regulation,[72] but
that type of legal action not only requires the tobacco industry to compromise
but it also provides more flexibility for those in the tobacco industry. The movie industry has made changes through
voluntary self-regulation by implementing a ratings system and updating it
through the years.[73] However, what brought about these changes was
a combination of changes in movies and changing morals in
The FCC has been given jurisdiction over the advertisement of cigarettes on any medium of electronic communication.[76] This authority has been upheld by the courts in the past.[77] The Food and Drug Administration (FDA) has tried to assert jurisdiction over tobacco, but that authority has been rejected by the courts.[78] The courts have noted that the six pieces of legislation regulating tobacco products since 1965 have not provided the FDA with jurisdiction; they have specifically given the FCC jurisdiction over advertising via any electronic medium.[79] Since the FCC has been charged with overseeing the prohibition of advertising via electronic media, it seems to be the regulatory agency that would be appropriate to turn to for a remedy.
While the FTC does have some authority over tobacco products, it is only related to unfair or deceptive acts in the advertising of tobacco products.[80] The use of tobacco products in movies can best be analogized to advertising, and there is psychological evidence that supports the similarities between viewing tobacco in movies and viewing advertisements for tobacco products.[81] Since the FCC has authority over all advertising over electronic media, it should be the department that takes on the investigation of the incidence of tobacco use in movies and the impact viewing tobacco use in movies has on children and adolescents.
In upholding the prohibition of cigarette advertisements on electronic media, the court noted that there was substantial evidence that the most persuasive advertising for tobacco products was being conveyed over radio and television.[82] The court further stated that this advertising was effective in reaching a large number of young people.[83] Although electronic communication is never specifically defined, there is a strong argument to be made that movies should be included. Using the rationale from Capital Broadcasting about the reach and influence of radio and television, movies should be included in the definition.
In Capital Broadcasting, the court also notes that radio and television are distinguishable from other media in that the “public owns the airwaves.”[84] This seems to be consistent with the FCC’s own description of their authority as being charged with “communications by radio, television, wire, satellite and cable.”[85] However, there is nothing that specifically excludes movies from the jurisdiction of the FCC.[86] Additionally, movies are available after their release in the theater and are broadcast not just on premium movie channels but also on other television stations. Since current research indicates that there is a greater effect the more children and adolescents are exposed to tobacco use in movies and a large amount of exposure is likely when movies are broadcast on television, this is further support for the proposition that movies will fall under the jurisdiction of the FCC.
The Federal Trade Commission (FTC) has undertaken an approach similar to the one that the FCC would be directed to do under this proposal; the FTC investigated the marketing of violent media to children.[87] Upon request from the White House and members of Congress, an investigation was undertaken to look at the targeting of youth in advertising violent media by the entertainment industry.[88] A problem that arose from the results of that study was how to translate them into action.[89] This is because the First Amendment does not allow the government to regulate content so the FTC instead had to encourage self-regulation.[90] The proposed FCC investigation would be feasible as the FTC’s investigation was, and unlike the FTC’s investigation, it would have a way to implement results by modifying the current movie rating system – a form of self-regulation that the film industry has already undertaken.
Parents can control access that their children have to varying forms of media.[91] A system of ratings can provide the information that parents need to protect their children, and in the movies, the rating system already gives parents what they need to protect their children from exposure to violence, sex, and profanity among other things.[92] The ratings system relies on parents taking responsibility for what their children watch. Their purpose is “to offer to parents some advance information about movies so that parents can decide what movies they want their children to see or not to see.”[93] However, this information is not available to parents who do not want their children to see movies that can promote smoking and a lifestyle that includes the initiation of smoking.
The effect that watching movies containing tobacco use can have on children and adolescents is of even greater concern for parents who do not smoke themselves and do not want their children to start smoking. When children have non-smoking parents, they are especially susceptible to the effect of viewing smoking in movies.[94] Parents who do not smoke are being deprived of the opportunity to influence their children’s smoking behavior in a way that they find most appropriate. These parents already chose to influence their children’s smoking behavior directly by providing a model for the desired behavior (by not smoking); they are unable to indirectly influence their children’s smoking behavior because they cannot control their access to the social influence of smoking in movies without information about the prevalence of smoking in each movie.[95]
Parents have no way to prescreen the occurrences of tobacco use in movies. One might argue that by controlling the access to R-rated movies, parents can effectively control their children’s exposure to smoking in movies. R-rated movies do contain significantly more occurrences of tobacco use than movies with G, PG, or PG-13 ratings.[96] When parents do not allow their children to watch R-rated movies, those children have a low risk of trying smoking when compared to children who do not have such a restriction on their movie watching.[97] This risk is the smallest when parents do not smoke and their children were never allowed to watch R-rated movies.[98]
R-rated movies are not the only movies with tobacco use portrayed,[99] and R-rated movies are only restricted access in the theaters for those under 17.[100] There is a wide audience of people who are under the age of 18, and therefore, cannot legally purchase cigarettes or tobacco products who are able to view R-rated movies. While restricting access to R-rated movies may have an impact, it does not cover exposure to all instances of tobacco use and it does not address the exposure of all who are under 18 years of age. Modifying the rating system to include considerations of tobacco use either by adding it to the current system or adding a parallel system that specifically addresses tobacco use would capture the actual use of tobacco in movies in a meaningful way.
Giving parents
the tools that they need to determine if there is smoking in all movies is an
important step in helping parents to instill in their children a non-smoking
attitude and non-smoking behaviors. One
screenwriter (and smoker) described smoking in movies: “A cigarette in the
hands of a
This proposal has another similarity to the portrayal of violence in movies – the debate over the accuracy of evidence supporting the underlying proposition that the portrayal has an impact on children and adolescents. There are some who have argued that there is an uncertain relationship between violence in movies and the imitation of those violent acts in real life.[105] Nonetheless, information about the violent acts portrayed in movies is available to parents through a rating system.[106] Similarly, there are some who argue that it is difficult to determine if there is a relationship between smoking advertising and smoking initiation.[107] The fact that there are some who suggest that there is not a causal connection should not bar actions that would provide parents with information about smoking in movies. There is a body of research that has found a connection between adolescents viewing tobacco use in movies and their initiation of smoking.[108] Thus, in the same way there is information about violent content in movies – even with some research suggesting a lack of a causal connection between that content and behavior – is available to parents before they view movies, information about smoking content in movies should be available to parents.
Implementing a ratings system that includes information about smoking behaviors in movies can give parents a valuable tool to prevent their children from initiating smoking. “[E]liminating adolescents’ exposure to movie smoking could reduce smoking initiation by half.”[109] Totally eliminating the exposure that adolescents and children have to smoking in movies is not required to influence smoking behavior. Simply informing parents of the occurrence of tobacco use in movies will allow them to determine how much smoking behavior their children will be exposed to. Having that information will give parents the information they need to ensure that their children are not being exposed to a large number of smoking occurrences through movies that can be unduly influential. Even a reduction in exposure to movie smoking could cause a reduction in the initiation of smoking.[110] The rating system has the potential to help decrease the initiation of youth smoking by decreasing the influence of movie smoking on adolescents without taking action that could be seen as infringing on content and raising First Amendment issues.
IV. Impact and Benefits
of this Approach
Parents who wish to make sure that their children do not smoke will often set an example by not smoking themselves. They might be aware of other social influences outside of the home and ask their children questions about their friends and if their friends smoke. However, most parents will not think to ask their children if they are a fan of a certain actor who smokes or if there was smoking in a movie that they saw recently. Most parents will want to know what the movies their children are seeing are rated because they know that the ratings alert them to behavior, which they should be concerned about their children watching, that is depicted in the movies. The fact that these ratings do not include information about how much tobacco use is portrayed in movies is something that does not concern many parents. This may be because there has not been a widely publicized study or action to include this information in ratings, and this proposal seeks to draw attention to this.
This type of
approach could have an impact on
Film-makers no longer have the excuse of censorship to justify their use of tobacco products in their movies. One member of the industry admits that there no longer is a reason to have tobacco use stand in to demonstrate an underlying characteristic in the movie:
[W]e hide behind a smoke screen of phrases like “creative freedom” and “artistic expression.” Those lofty words are lies designed, at best, to obscure laziness. I know. I have told those lies. The truth is that there are 1,000 better and more original ways to reveal a character's personality.[113]
There is no longer a need to use tobacco products in movies in the way that there was when there was more censorship in the industry. An investigation into the impact that tobacco use in movie has on children and adolescents would bring information about its impact to the attention of those in the motion picture industry. This may provide a motive to change the frequency and use of tobacco products in motion pictures.
There are already some in the industry who are changing their smoking behavior on screen because of concerns over how tobacco use in motion pictures can influence children and adolescents. Pierce Brosnan, who has played James Bond in a number of James Bond films, has smoked in some of his roles as the suave agent.[114] For the movie Golden Eye, Brosnan refused to smoke as Bond because he was concerned about the possible influence that his smoking as Bond could have on children.[115] The approach proposed in this paper might encourage other celebrities to make the same stand in their films. All stars may not have enough popularity to refuse to smoke and still retain their part in the movie,[116] but the attention that this investigation could bring to the problem might make it easier to keep smoking out of movies. It would provide undeniable awareness on the part of those in the industry and would lend credence to any actor or actress who does not want a character he or she plays to smoke.
The information that will be available following a study into the instances and effect of tobacco use in motion pictures will be necessary to initiate a change in how the industry portrays tobacco use. When ratings for motion pictures were initially begun, there was a change in the industry that resulted in “a ‘new kind’ of American movie - frank and open, and made by filmmakers subject to very few self-imposed restraints.”[117] It is precisely that change that did away with the need to use smoking in motion pictures to portray that which films originally were not able to do directly even though smoking was still used in movies following that change. However, without a similar change in the nature of movies, it is unlikely that the ratings system will evolve based on the initiative of the MPAA in such a way as to include tobacco use.
Pressure from outside the industry and within would increase the likelihood of the implementation of a rating system that includes consideration of tobacco use. An investigation would appeal to conscientious actors and others in the industry who could take a stand regarding tobacco use in films. Unfortunately, there may be pressure in the opposite direction from within the industry as well. “[S]ome movie stars are more likely to play a part if they can smoke—because they are so addicted to smoking that they have difficulty stopping even during the shooting of a scene.”[118] Such opposing pressure from within the motion picture industry makes it unlikely for the industry to undertake a change on its own. Unless there is a major change in the industry, the type of public awareness raised by an investigation into the effect of tobacco use in motion pictures will be needed to initiate meaningful change.
An FCC investigation into the instances and effects of tobacco use in motion pictures may provide the information that people outside of the industry need to take action to pressure those in the industry to make changes. The Master Settlement Agreement barred the use of direct and indirect advertising to target underage persons.[119] The National Association of Attorneys General formed a Tobacco Enforcement Committee in order to coordinate the enforcement of the Master Settlement Agreement.[120] It has been suggested that the way tobacco is portrayed in movies, which are targeted to children and adolescents, is a violation of the Master Settlement Agreement.[121] Attorneys General from many states have already written to the president of the MPAA to ask him to use his leadership “to rally the motion picture industry to move from being a source of the problem to being recognized as a critically important force in solving the nation’s deadly problem of youth smoking.”[122] While this letter does cite a study by Madeline Dalton and colleagues,[123] a more exhaustive investigation would supply more information that could be used by the Attorneys General in seeking to have the incidence of tobacco use in motion pictures regulated because it falls under the Master Settlement Agreement. Having this additional information could apply even more pressure to the industry.
Such an investigation is also likely to gain media attention. A recent investigation into steroid use in Major League Baseball resulted in a great deal of media attention and even had some members of the media delving into details of how the investigation was run.[124] An investigation from outside of the government followed by threats to hold Congressional hearings on the matter encouraged Major League Baseball officials to work toward developing their own steroid testing program.[125] It’s likely that legislation to require an FCC investigation into the effect of tobacco use in motion pictures on children and adolescents would result in similar media attention and put pressure on the motion picture industry to develop its own solution, perhaps by turning to a means for self-regulation already at work in motion pictures.
The combination of pressure from within the motion picture industry and outside the industry will make it more likely for a change to occur. When ratings were first initiated, Jack Valenti, president of the MPAA, noted: “I knew that the mix of new social currents, the irresistible force of creators determined to make ‘their’ films and the possible intrusion of government into the movie arena demanded my immediate action.”[126] An investigation into the way tobacco products are portrayed in movies will provide similar forces. Propelling these forces through an investigation makes it likely that the motion picture industry will again initiate a change – this time to develop a ratings system that takes into consideration how tobacco is portrayed in motion pictures.
This is not the first time that there has been a call to change ratings because of instances of tobacco use, but the type of change that would be called for from this investigation is likely to succeed. Smoke Free Movies, a group that seeks to reduce the film industry’s usefulness for tobacco’s marketing, has called for a change only in the R rating.[127] They believe that if there is smoking in a movie, it should receive an R rating.[128] The argument stems from the belief that it would leave studios with a license to retain artistic control to include tobacco use, as long as they are willing to get an R rating for including that tobacco use.[129] A survey available from Smoke Free Movies’ web site also suggests a rating remedy.[130] This study argues that an R rating for the use of tobacco products would have resulted in the removal of smoking from 48% of movies released from 1999-2003.[131] This assumes that producers would rather remove tobacco use than receive an R rating.[132] With smoking currently being so prevalent in motion pictures, it may not be realistic to assume that producers would suddenly stop using tobacco products in their film; they are more likely to rebel against the potential change in ratings – a change that would be being implemented through self-regulation in the industry.[133]
Taking an approach that gives the industry some leeway in determining the ratings also takes away complaints of restrictions on free speech under the First Amendment. Entertainment speech, including motion pictures, has full First Amendment protection.[134] By bringing the results of an investigation into the effects of tobacco use in movies to the public forum, the motion picture industry would have the impetus to act and a suggestion for the best way to act to remedy the situation. This may help to increase the likelihoo