A political independent, Phil was appointed to the five-member Federal Trade Commission by President Kennedy in 1961 after 17 years as a U.S. Justice Department constitutional law expert. In the next nine years, while he never served as FTC chairman, he sparked changes at the commission that affect it -- and the advertising business -- to this day.
CHANGING THE `LITTLE OLD LADY'
He arrived at FTC when it was widely disparaged as an ineffective and toothless "little old lady on Pennsylvania Avenue." Phil Elman, however, made it plain he had no tolerance for businessmen who cheated the public, or for bureaucrats who helped them. In a 1964 speech, he put it in plain words: "Advertising has a moral duty beyond the law."
He spearheaded the concept that cigarettes should not be allowed to advertise on radio and TV and that every cigarette package should carry a warning that smoking is harmful to health.
In 1964, his efforts stirred the FTC to dramatically order a ban on cigarette advertising. (Congress almost immediately blocked the ban from taking effect, but it agreed to order health warnings on cigarette packages.) His beliefs about truthful and fair advertising were also reflected in other landmark FTC cases on deceptive demonstrations in TV commercials and advertising directed to children.
Always uncompromisingly independent, he required high standards of integrity in advertising, and painful FTC penalties for those marketers who wavered. But he was no less uncompromising when he believed his colleagues at the FTC overplayed their hand.
He contributed substantially to the case for First Amendment rights for advertising in an opinion opposing an FTC decision that treated advertising for a health book as deceptive. The commission claimed the book did not prove the remedies that it recommended actually were effective. He made speeches and wrote articles supporting the advertising industry's contention that advertising is protected speech that must be regulated only to the degree necessary to make it truthful.
He also advocated that FTC change its rules to obtain more comment from the public on its actions. Though public comment procedures are now an accepted part of FTC procedures, it was Phil Elman, in a celebrated hearing at the FTC, who supported a group of jeans-clad law students who first petitioned to take part in a case involving a deceptive photo in a TV ad. Their unprecedented victory led to the previously unheard of concept that FTC cease-and-desist orders could require corrective advertising.
Vintage Elman was on display when the FTC weighed plans to handle widespread deception in advertising and other business practices through industrywide trade regulation rules. Supposedly such rules were good for business and the FTC alike: Industry would have advance notice of what had been found to be illegal; and the FTC would no longer be retrying the same issues.
THINKING BEYOND BOUNDARIES
When industry lawyers cited the danger that their clients would be denied due process, Mr. Elman voiced impatience with his own profession.
"You're bringing stratified thinking to the hearing," he said. "We are concerned here with the problems of government. How is the FTC to exercise its authority? Couldn't we be thinking of something which doesn't fit strictly into any category?"
Phil Elman was a skillful negotiator with an unusual ability to rally majorities behind what he believed in. His forthrightness and the consistency of his positions won respect of friend and foe alike. When he was up for reappointment to a third term at the FTC, there was no known effort by the advertising business to have him displaced. President Nixon probably made a different choice for legitimate political reasons: he wanted a Republican.
In recent years, Phil was immobilized by bad health. On Oct. 9, he attended my 80th birthday. It was his last public appearance.
Mr. Cohen was Washington editor of Advertising Age from 1942 to 1984.