Bliley PM
[Excerpt from Legal Brief Regarding "Day One" Broadcast on Nicotine, Additives, and Industry Practices]
Abstract
Lists 16 claims, quoting Day One television broadcast of February 28, 1994 regarding tobacco industry, nicotine, and cigarette additives, and rebuts claims citing industry practices, government regulation, and broadcast misstatements. Concludes "there is nothing in the processing of tobacco or the manufacturing of cigarettes by Philip Morris that increases the nicotine in our products above what is naturally found in tobacco. In fact, there is a net decrease in nicotine levels as a result of the use of reconstituted tobacco". Relates to Bates 2022997739.
Fields
- Company
- Philip Morris Cos., Inc.
- Type
- Legal- Brief
- Report
- Named Person
- Connolly, G. Dr.
- Douglas, C.
- Martin, J.
- Nouhys, V.
- Named Organization
- ABC Television
- American Cancer Society
- BATF
- Bureau of Alcohol, Tobacco and Firearms
- Congress
- Day One
- DHHS
- Dr. Madis Laboratories
- Federal Trade Commission
- Federal Trade Commission (Enforcement agency for laws against deceptive advertising)Enforces laws against false and deceptive advertising, including ads for tobacco products. Ensures proper display of health warnings in ads and on tobacco products;collects and reports to Congress information concerning cigarette and smokeless tobacco advertising, sales expenditures, and the tar, nicotine, and carbon monoxide content of cigarettes.
- Health and Human Services
- HHS
- Philip Morris Cos., Inc.
- R.J. Reynolds Tobacco Co.
- R.J. Reynolds Tobacco Co. (Cigarette manufacturer (Camel, Winston, Doral))Cigarette manufacturer (Camel, Winston, Doral)
- Region
- United Kingdom
- United States
- Switzerland
- Keyword
- Denatured alcohol
- Federal Cigarette Labeling and Advertising Act
- Hooked
- Nicotine spiking
- Nicotine sulfate
- Reconstituted tobacco
- SDA-4
- Tobacco extracts
- Tobacco waste products
- Brand
- MERIT ULTIMA
- Subject
- Additives
- board of health
- cigarette design
- Cigarettes
- Federal level
- Government agencies
- Health advocacy groups
- industry response
- International level
- legislation
- Legislatures
- mass media
- National level
- nicotine
- State level
- Warning labels
- addiction
Document Images
February 28, 1994 "Day One" Program
CLAIM: (Page 2)i
"Martin: Now, a lengthy "Day One" investigation has uncoveredl perhaps the
tobacco in,dustry's last: best secret - how i't artificially adds nicotine tO.
cigarettes to keep people smoking and boost pro:fiits,"
RESPONSE: There. i~s no: evidence that nicotine is added ~o: cigarettes to "keep
people, smoking,. Thi.s is manifestly absurd as the. tobacco industry sel'ls a
range of products with various ni,cotine yields. The phrase. "artificially adds
nicotine" h:a.s the connotation of adding additional nicotine which is
in,appropriate to. the normal m:anufacturing process. I!tl may be technically
correct to state that nicotine is added through nicotine sulfate denatured
alcohol and the use of tobacco extracts as flavoring agents. However, ni,co:tine
is a naturally occurring component of tobacco extra~cts and nicotine sulfate is
the only BI?AF approved agen~t ~0r denaturing: alcohol to be usedi in tobacco
processing (sprays) an~d manufacturing. MOre importan~fly,, the amount of
nicotine that results from, the use of tobacco: extracts and denatured alcohoI is
not detectable by routine analytical methods and is more than offset by the
reduction in nicotine that occurs in the processing of reconstituted tobacco
which is in the tobacco: blendl of every cigarette: Simply stated, the nicotine
leveli in any finished Philip. Morris cigarette is. less than the nicotine level in
the raw, unprocessed toba~cco before manufacturing and processing, and no ~
attemp:t~ is made to, replace the nicotine that is lost~ ~
CLAIM: (Page 2)
"The. meth~ods the. cigarette companies use to control the. levels of nicotine is
something that has never before been disclosed to consumers, or the
government.~'~
RESPONSE:: Obvi,ously, a cigarette manufacturer must: "control" the level of
nicotine in the final product to ensure that on, average a parfi~ar brand
delivers the nicotine yield sfipul~ated in the. brand's advertising: (required by
federal l~aw)a.s measured by standard test methods prescribed by the Federal
Trade Commission. It is common knowledge that certain manufacturing
techniques are employed to: achieve an average nicotine yield for a particular
brand a's reported, to consumers in that brand's~ advertising. For instance,
tobacco: blend:ing> air dilution, filtra~tion, etc, are manufacturing: techniques.
that are used to achieve: as uniform a prodUc~ as possible. The published
patent literature contains many references to: the various manufacturing:
techniques employed to achieve a uniform nicotine yield in, a particular
product. The manufacturing and processing methods used by a tobacco
manufacturer to achieve a, uniform nicotine level in a, particular product are
inconsequenti~al in tha~t both consumers and the government are informed of
the average yield of each cigarette brand sold in the United States. The:
nicotine yi,elds have been provi,ded to consumers; in cigarette advertising for
over 20 years: The nicotine yields are measured under standard test:
conditions pursuant to. scientific protocols proscribed by the Federal Trade
Commission. In this. sense, consumers and the government know exactly what
-2-
to expect from, each brand sol,dl concerning: relative nicotine yields.
o
CLAIM: (Page 3).
"So here, s what: the companies do: in step. 2 - they apply a po:werful: tobacco
extract containing nicotine and flavor to: the reconstituted tobacco. This
process, too, is mean:~ tobe. secret."
RESPONSE: This sta,tement is incorrect in that tobacco: extracts are not used
in. the process of recon.stituting tobacco. Philip Morris utilizes two processes
for reconstituting tobacco:. The toba~cco reco:nstitution processes actually
result in a red~cti,on of nicotine from, approximately 20% to 40% in, the
fini.shed reconstituted tobacco, as compared to the nicotine level in the
starting materials. Currently,. Philip Morris. does not: use. tobacco extracts in
I~M cigarette, brand,s sold in the. U!S: and when iitl was used, it was used in, only
one brand - Merit Ultima: Even in those export brands where tobacco: extracts
are used ~s part of a compounded flavor there are no measurable increases in
nico:tine: levels that resul~ from the use o:f tobacco extracts: in compounded
flavors. It sl~ould be noted that when tobacco extracts are used in a brand they
contribute less than three parts per million (3 ppm): nicotine to the p:roduct.
o
CLAIM: (I~age 3):
"This process, too, is meant to be secret:"
RESPONSE! The processes of reconstituting ~obac¢o are. not secret: There are
numerous patents regarding reconstituted tobacco whi,ch date back to: the
1940's, In fact the.first patent on tobacco reconstitution was issued almost 150
years ago:. Again, the obvious response to. this claim is that tobacco extracts
are not used in the process of reconstitutingl tobacco; therefore, there is. no
secret to: be kept.
5~
CLAIM: ~Page 3)
"Fie told us how they. make this concentrated extract that is rich, in ni,cotine;"
RESPONSE: Thi's quote is attributed to Mr. Van Nouhys who was identified
as the Vice Presiident of Dr.. Madis Laboratories, Vie are unaware of any so:
called concentrated extract that is rich in nicotine. Philip Morris does not u,se
any such product if it:exists. It is important to, note tha~t~ Philip: Morris does
not purchase ~obacco extracts as a flavor per se. Tobacco extracts, when they
are. used, appear a,s an individual ingredient in a, compounded flavor
package that inclu,des many other flavorings. This statement is dearly
erroneous to the exten:tl it implies that cigarette manufacturers use some type
of concentrated extract that is. particularly rich in nicotine.
CLAIM! (Page 3),
"Why would the tobacco companies use this nicotine rich, syrup?"
RESPONSE: As indicated above~ we have no knowledge, that: anyone in the
tobacco: industry uses a "nicotine rich syrup': Tlle connotation dearly is that
extraneous sources of nicotine are used to: create, artificially high nicotine
concentrations in some mixture which is then, utilized in the production of
cigarettes. Philip: Morris uses, no such compound and has no, knowl,edge of
the,use o~any such compound by any other cigarette man~acturer.
7~
CLAIM:: (Page 4):
"They're fortifying the produ,ct with nicotine: Is that correct?"
RESPONSE: This question appears to.be asking if in the reconstituted!
tobacco process tobacco manufacturers use so:me kind o~ concentrated
nicotine product to supplement the naturally occurring nicotine levels.
Philip Morris engages in no such activity. As~ previously mentioned, there
are no ex:traneous sources o~ nicotine added in the tobacco reconstitution
process. Indeed, the tobacco reconsfitution process results in a reduction in
nicotin~e levels in the. finished reconstituted tobacco as compared to the: raw
materials which enter the process, Exceptl for the insignificant leve~s of
nicotine from tobacco extracts in flavors (when used) and SDA,4 (used to:
denature alcohol); the only nicotine in Philip Morris products occurs.
naturally in the ~obacco~
CLAIM:: (Page 4)
"The waste-filler-yes they are."
RESPONSEt The response is. attributed to an unidentified former RJR
manager. He was; responding in the context of what the "tobacco: companies"
do with a "nicotine rich syrup,q The "waste-filler" comment, again, seems to
be a reference to a reconstituted tobacco process: To rei~terate, Philip Morris
does. not add any extraneous sources of nicotine whatsoever during the:
tobacco: recons~tituti,on process and has no knowledge tha,t any other company
engages in such a practiice,
CLAIM: (Page 4):
"Reconstituted tobacco ordinarily contains 25% or less of the ni,cotine in
regular tobacco, But the samples we tested had up to 70% of the nicotine that
would be: found i'n reguliar tobacco:.~'
RESPONSE: The statement: that reconstituted! tobacco ordinarily contains
25% or less of the nicotine in regular tobacco: does not hold true for the
reconstituted tobacco produced by Philip Morris. Our reconstituted tobacco
has a red~ction in nicotine from the starting materials to finished product in,
the approximate range of 20% to 40%, The. claim that samples testedl had "up
to 70% of the nicotine tha,tl would be found in regular tobacco~' may be an
accurate: statement of the analysis performed; however;i it overlooks a simple
explanation~ A finished cigarette includes both "regul~ar tobacco, and
reco:nstituted tobacco, AI1 Pttilip Morris products contain some
reconstituted tob:a,cco, The average content: of: reconstituted tobacco sheet in a
finished Philip Morris cigarette is approximatel'y 23%. As previously
discussed, the nicotine level in "regul~ar toba~cco," is appreciably higher than
the nicotine, level in reconstiituted tobacco, However, once. the regular:
tobacco: and reconstituted tobacco are. mixed, the nicotine tends to seek
equilibrium and thus migrates from the. "regular tobacco" with higher
nicotine levels to the reconstituted tobacco which has. lower nicotine levels
until the nicotine, is fairly evenly distributed throughoutl the cigarette~
Therefore; if one dissects a finished cigarette andi separates the reconstituted
tobacco, from the "regular tobacco,' and measures the nicotine level in the
reconstitu'ted tobacco: particles one would find higher than expected nicotine
levels which reflects, the fact that the recon.stitu:ted tobacco has picked up
some of the nicotine from the. "regular tob:acco,':
10:
CLAIM: (Page 4)
"Why are. you: adding: nicotine to your cigarettes?"
RESPONSE: This was a question put to the. two. RJ-R scientists which implies
tha~: RJR is "spiking" its products with, extraneous sources of nicotine.
Technically speaking, RJR may be "adding ni,cotine" in the: form of the minute.
amount of ni,cotine found in nicotine sulfate den:atured al,co:hol as well as the
smalli amount of niicotine that may be.in any tobacco extracts used by RJK
However, the question is misl,ea~ding: in that it accuses RJR of adding nicotine
in an amount that would result in artificially obtained higher levels of
nicotine in the finished product than would otherwi,se have resultedl from the
normal processing: and manufa~cturing of raw tobacco~
CLAIM: (Page.5)
"The. companies control the dosage pred.sely according to this former RJ'R
mana.ger,'.
RESPONISE~:: The allegafi,on connoted by this statement ~s thwart tobacco
companies believe there is a, nicotine lev.eI at which, smokers remair~
"addi,cted" and th~at they control the. nicotine dosage to. keep their'consumers
"addicted,. Obviously, cigarette, manufacturers control the nicotine, yields in
their products to ensure that their prodt~cts deliver' the amount: of nico:tine.
represented in the b:ran~dS~ advertising relative to the stan~dard test methods
prescribed~ by the FTC.. Thus in a qualiity control sense cigarette
manufa,cturers d,o carefully control the ni,cotine yield as measured by the
FTC test methods.. However, this is quite different from the implica,tio:n, of
this statemen~t which when readi in the context of the entire program suggests
that tobacco companies add additional sources, of nicotine to cigarettes tO.
achieve, a dosage tha,t is calcula~ted to keep: smokers "addictede:
1!2.
CLAIM: (Page 5).
"It's this ability to control the exact dosage, of nicotine with tobacco, extract
tha~: is so alarming to: Dr, Greg Connelly, a, Massachusetts health official."
RESPONSE: This statement is completely false. The suggestion i,s that
tobacco, extracts are used to boost nicotine levels and{ achieve "the exact
dosage of nico:tine". As previously discussed, Philip. Morris; does not use
tobacco, extracts as. a stand! alone ingredient. The only tobacco extracts used
by PMI are when tobacco extracts occur as one component of a ¢ompound,ed
flavor package.. Furthermore, the contribution of: nicotine from tobacco
extracts to a, particular cigarette is inconsequential. The fact is that the
nicotine: contribution, from, tobacco: extracts, added to: a finished product is
negligible; and thus~ does not measurably change the level,s of ni,co:tine in the
toba, cco smoke, It shoul,dl also: be no~ed that tobacco extr:acts have been
declaredi on the ingredi,ents list subrnitted annually to IDHHS by the six major
U.S. cigarette manufacturers. AlSo, tobacco: extracts are specifically approved
for use: in tobacco products in a nt~mber of countries, around the world
including Switzerland and the United Kingdom:
13¸.
CLAIM! (Page 6)
"It:is here that nearly pure ni,cotine is brought ashore tO be, combined with
al,cohol".
RE~SPONSE: Philip: Morris does not buy pure nicotine foruse, in its
cigarettes,~ from any source. This refers to a scene of the docks in Newark,
New ~ersey which alleges that pure nicotine: is imported to be combined wi,th
alcohol to form denatured! alcohol. This portion of the program also referred
to trucking records showing that Phili'p Morris received "thousands of
gallons, of this. al,cohol mixture during the 1980(s." Iltl is true that nico=tine
sulfate is added to alcohol to. denature, the alcohol. This is done for tax
reasons as potable alcohol woul,d carry an additional tax of approximately
$26,00 per gallon:. A second reason for denaturing the alcoholl is to prevent
workers from drinking: it. Philip Morris buys dena~tured alcohol; it does not:
buy alcohol and then a~dd nicotine to it. What the "Day One" transcript does
no~ reveat is that nicotine sulfate: (SDA-4!)is the only form, of denatured
alcohol approved for tobacco processing and manufacturing by the Bureau of
Alcohol, Tobacco. and Firearms pursuant to. 27 C~KR. §21.38, The amount: of
nicotin,e in cigarettes from denaturedl alcohol is. so. small as to be. undetectable
in the final product. The insinua~tion thatl the nicotine used in dena~tUring
alco.holi adds appreciably to the nicotine levels found in cigarettes is wrong:
14.,
CLAIM: (Page: 6)i
"Still~ any kind of nicotine, manipul;ation, disturbs critics like Cliff Douglass of
the American Cancer Society."
RESPONSE~ The characterization of the use of dena~:ured al,cohol as "nicotine
manipulation" is. incorrect. As previously indiicated the use of alcohol
denatured wi~h ni,cotine does not add any detectable additional nicotine to
the final: product, therefore, its use can, hardly be described as a
"manipulation" of nicotine in the final product.
15.
CLAIMI: (,Page,6)i
"The p~ablic doesn't~ know that the industry manipulates nicotine, takes iit out,
-I0~-
puts in back in~ uses it as if it were sugar being put into: candy. They. don't
have a clue: Neither, apparently, do members of Congress."
RE!SPONSE: Members of Congress who h:ave received copies of the
ingredients lists, submitted by the six major cigarette manufacturers to: DHHS.
would ¢ertai:nly be aware that tobacco, extracts is listed as a flavoring a,gen~t~ It
would seem obvi,ou.s that tobacco: extracts woul,dl contain some amount of
nicotine: as nicotine i.s a, major component of tob:a~cco: Members of Congress
should be aware that: the BATF specifically authorizes the use of ni,cotine as
an agent to denature: alcohol used in the manufa,cturing of tobacco, products.
Indeed, as previously mentioned, nicotine sulfate is the only apl~roved
denaturing: agent for alcoholi that is to be used in: the processing and!
manuf~cturing of tobacco products, Furthermore, members of Congress, like
everyone else,, have the abffity to: search the patent literature to: obtain a more
complete knowledge o:f the process of tobacco reconstitution. It is
indisputable that members ofCongress as. welll as. members of the consuming
public are aware of the. reported nicotine yields for alll brands of cigarettes as
they appear in cigarette a~dvertising~ These yields are measuredi according: to
standardi test: methodologies set: out by the Federal Trade Commi.ssion. The
use of a s~tandard test method all0:ws consumers to compare relative nicotine
yields among brand's: One could argue: that i~: makes little difference wheth,er
nicotin~e is added or removed a,t various stages of cigarette manufacture as
long as nico~tine yi,elds are measured according to. reli~able test methodologies
a~d are duly reportedl to consumers in cigarette advertisingi Consumers. are
not being misled, and members of Congress are: no:t~ being: misled. Everyone
who reads; cigarette advertising is informed of the relative nicotine yield of
that. produ,ct regardless of the source of the nicotine.
16,
CLAIM: (Page
"Well, they say they're not really adding nicotine, that: they're moving it from
one part of the: tobacco product: to another: And they presumably could offer
a cigarette that! is simply the leaf, and not this reconstituted filler' material.
However; that would raise the amount of nicotine, an,d it probably woulttn't
help them avoid regulatiion:.,'
RESPONSE: Philip Morris has never said that they are "moving: it (nicotin,e)
from one part of the tob:~cco prodt~ct to~ another". The presumption that a
cigarette manufacturer could sell a cigarette that is simply made of leaf is
correct, but the price of that product: would obviously be: greatly i~creasedi
and might not be acceptable to the consumer: Our. position is. that vce: are not:
adding: nicotine: that resul:tls in an increase in the: nicotine in our finished
cigarettes, as compared to: the. raw; unprocessed; tobacco that initially goes into
the process. Nicotine is adCted in undetectable amounts through, the use. of
nicotine denaturedi alcohol. Also, nicotine: is added to certain: brands ~hat are
sold outside: the U:.S, in the. form of toba,cco extracts being used as a flavoring
agent. However; the importan:t point is that there is nothing in the~processing
of tobacco or the manufacturing of cigarettes by Philip Morris that:increases (~
the nicotine in our products above what is naturally found in the toba,cco,
fact; there is a net: decrease in nicotine levels as, a result of the use of
recon~stituted ~obacco:
-13-
