Tobacco Documents Online

C0~FI Dh~TIAL TOBACCO R.ESE~RCH CO~CI~ Research Fublications OPINION Fr~shfields, (CLW/AS.) ~ Bank Buildings, Princes Street, E.C. 2.

Repor~ may be suw~narisod b>' quoting ~rom its of the ~ • D~aAt.- The ~mpo=tant points emerging from the Day/Pal.go Summary en p.16 "The results provide evidence that non-volatile neutral components of cigarette smoke eontrlbute. substantially to the mouse skin caroinogenicity of whole 24-hour old cigarette smoke condensate, as defined in this report and, for the first• time, ~hat the compounds responsible for this effect are stable from 24 hours after collection for several weeks, and that those compounds were not produced, as a~ifacts in the processing leading to stored condensate." As the authors themselves point out earlier in ~the Report, the e~porlmont has been conducted on a ~reator scale than other comparable~ research by ~'~ynder and others. It .is also evident that~the quality of animal husbandry has been very high. It is, ~ thi~, because of ~hose factors, combined with the fact'that the research has been ~-:= ................. ~-~"~'-~=,~--~ ....... ~-~-~' sponsored by the oigarett'e manufacturers themselvos~ ~ "~ the : f~ndings of t~e report represent a stop for~ard in the search for an answer t'o the ~-~ " • que~on whether cigarette smoking contributes to l~ug cancer. There are a~mlt~edly two new inferences that can be drawn -~(i) the carcinogens in the condensate are stable ove~ a period of week's, and (il) they are not. an au~ifact of ageing - but it is as much the general improvement in the quality of the ovldence now available that makes the Day/Paige conclusions important.

I am asl~ed to advise whether the publication of the Day/Paige report is likely to increase the risk of proceedings against the tobacco manufacturers in the U.K. There are two elements of ~isk %o bc evaluated. One is the ri~k of proceedings being instituted. The other is the risk of proceedings, once instituted, being successful. One can only evaluate these risks by considering the relevant likely eens&quen6es of (a) publishing or (b) not publishing the Day/Pai~e report i~ substantially its present form. T._~he .0onseouences of Pub!icatipn Ko~ far ~guld publication affect the likelihood, of procoedmngs be.ing.zn.q.~mt~ec% At ~.~e :uoment one must regard'the institution of such proceedings in this country as a remote rather than a real possibility. The cost of the proceedings and the remoteness of the chance of success would deter anyone.but a ~ealthy crank, unless legal aid ~ere granted. I do not regard the chan'oes of a cra~¢ starting proceedlngs as in any way substantially increased if the report is published. As to the re!atlvo likelihood of legal aid being granted, that question really turns on whether the availability of the Day/Paige report would make the difference bet~een ~o~nsel not being prepared to advise the granting of legal aid, and Counsel being prepared so to advise. Since Counsel's approach to the question ~ould (I hope) be the same as my approach ~0 the next question I consider in the paragraph below, there is no need for me to consider it Separately. '4. ' Eo~ far would publication affect the !i!~e!ibo.gd of ~roceedin<s be±n~ suc.cessfu!? The conclusions of the report have a bearing upon the general issue of ~hether cigarette smoking and lung cancer are causally related. The evidence ~hlch is relevant tc that issue may be clas~faed under various heads,

are not ~onerally quoted as strong support for arguing that cause! connection exists (see o.~. ~he Report o! the Royal Oollego'of.2hysicians at paragraphs 57-39. See also pc the Surgeon-General's Report, 4th'~aragraph: oarolno~onieity in animals can provide only for the oaroinog0nioity of a given compound or material man"). Xf there were ±ndopondont ovldenee ~ehioh entitled one c..or..~e 4 experimental and s:c-~'~% p~..~i..o experiments, ua~en as a whole, the of supporting evidence bxtrapolate mouse-skin data to man, the tasl~ of any prospective P~a~,,~i~ in a lawsuit seeking to prove causation could be said to have been made significantly easier by the publication of. the data from the idarrogate oxpariments. But that ,is not so, The most that can be said is that the evidence in support of the causation thesis has .become marginally stronger. The main body of evidence ~hich can be used to support the thesis directly,w I ha~e in mind in particular the epidemio!ogical an~ histo- pathological evidence - remains unaffected. Nor do. the. Day/paigo data affect in anZ way the weight of evidence on any of' the other pointl which would bo raised by Plaintiff or Defendants in a nogligen'ce action (subject always to ~hat I say below about the consequ.qnces.o.f failure Co publish those data). Again, the difficulty of proving that smoking over a specific period of years (namely the period during which the manufacturers would be alleged to have been negligent) remains as, great as ever. Looking at th~ z~atter in the round, I do not consider that inc~'ca~e in the litigation against a cigarette manufactux-er on the ground that he or a deceased porson contracted lung cancer.

4 ~, %" thorofo:~o sum up my views on the ...... of ~:b.._c~.~..o.. of tno ropoi't by ~Y-,.o ~].~t in :ny opinion noitho~ element of~.~.~-'- will be increased by ~¢~'" h publ~oa~on,' ' 6. The Conseeuences of no[%iPub!ioation. Xn ~ho short term i% is obvious Zhat non-publloa%ion of the ~ ~ -"- could have no practical e~o~ unless and -~ntil mt became known that the H~**oo~ eata wore available but had ..,VO.V.~.o directly and ~ndirectly a largo number .-s.~ ~ a leakage will occur. of peo~lo, %her~ is ~lways some ~ ~ ~" There are no doubt general arguments~o~n~'" ~.t any course of action ' ~.a~ the industry for which might give colour to a suggestion ~ ~ co~uercial reasons had been -" ~" ~ ~ " ' ' ' which would, at the very least, have boon of interos~ to smokers, research workers and the 7. If these data are not p ...... ~o~, "" .migh~ be open to ,a smoker at some future time to say ~'~"~ "'"" ~.~ ~.~ he lcnown that research sponsored by ~-~.o m~nu.~c.~.~.~~ -~ ~ ....... had produced these results, he %,ould have reacted by ~ ~ .... " down on his olgarG~te ..... : ~ ~.?~" 2 his smol:ing habits in some %,ay. This is not an ~l~ooe~h~. unreasonable attitude, though it may not be strictly Ioo-~. .~ there is a real possibility ~h~ some smohers might ~n .~ .the ~{arrogato " ~ becam~ public ~<now&cdg~, at seems ~hat ~'--"~--~__~ it ~s th~ duty in ~aw of ~no manufacturers to see ~hat the data do b¢com~ "" "" puo~ac knowledge, bearing in mind the grav~ty of "'~ issues at stake. ~: ..... " ~ " would ~eom nec6ssary to lay ~.ose data before the public ~hat smokers may m~.~ an informed decision. ~ may Well b~ ~ur the industry to consider ~vin~ the daZa somewhat

- 5 - 8. the ~';ould increase • ~so~. at the onu of the day p. oo~oly p~-ovo to be o~ only ~a~-~nai oonsoquonoo ~ is one ~hin~ not Zo comply %~ith one's the broach of tha.t du~y. Dut on the ~vholo Z am sure ~hat, ~.,ou~n o~thor case one is prooaoly dcal~n~ ~ .... a , • .s~, the manufacturers would ~ncur a ~.~to~ risk of being sued (albo~ at a later date) and .~.O~O data, than ~noy being successful, if they do no~ publish ~'~ ~ "" incur if Gr-~y's Inn, ~¢.0.i. • A 28th Soptcmber, 1966.