Bliley PM
Philip Morris Companies Inc. and Philip Morris Incorporated, Plaintiffs vs. American Broadcasting Companies, Inc., Forrest Sawyer, John Martin, Walt Bogdanich, and John/Jane Doe(s) I-IV, Defendants
Abstract
Moves for legal judgment against ABC Television and employees for "[t]he harm caused to Philip Morris by defendants' false and defamatory statements" aired on its Day One newsmagazine broadcast asserting "tobacco companies...are artificially 'spiking' and 'fortifying' their cigarettes sold in the United States with extraneous nicotine for the express purpose of keeping smokers 'hook[ed]'". Quotes from broadcast and follow-up media coverage, summarizes events related to broadcast, and describes manufacturing processes to refute nicotine spiking allegations. Indicates "privileged and confidential attorney-client work product, draft 3/22/94" and relates to Bates 2022813241, 2022813330, 2500119949.
Fields
- Company
- Philip Morris Cos., Inc.
- Type
- Draft material
- Fax
- Legal- Brief
- Fax
- Author
- Booker, L.T.
- Author (Organization)
- Wachtell, Lipton, Rosen & Katz
- Recipient (Organization)
- Philip Morris U.S.A.
- Named Person
- Assuras, T.
- Bogdanich, W.
- Booker, L.T.
- Bury
- Campbell, W.
- Connelly, G. Dr.
- Doe, J.
- Douglas, C.
- Downs, H.
- Durbin, R., Rep.
- Feder, M.
- Hunton
- Jennings, P.
- Katz
- Kessler, David A., M.D., J.D. (Former FDA Commissioner)
appointed FDA Commissioner by President George Bush in December 1990.- Koppel, T.
- Lipton
- Martin, J.
- Myers, M.
- Redlich, N.
- Robbins, B.
- Rosen
- Sawyer, F.
- Synar, M. Rep.
- Wachtell, H.M.
- Williams
- Bogdanich, W.
- Named Organization
- American Broadcasting Companies, Inc.
- American Cancer Society
- Bureau of Alcohol, Tobacco and Firearms
- Capital Cities/ABC, Inc.
- Coaltion on Smoking OR Health
- Day One
- FDA
- Food and Drug Administration
- Hunton & Williams (Counsel for Philip Morris)
Counsel for Philip Morris, located in Richmond, VA.- Kraft Foods
- Miller Beer
- New York Stock Exchange
- Nightline
- R.J. Reynolds Tobacco Co.
- R.J. Reynolds Tobacco Co. (Cigarette manufacturer (Camel, Winston, Doral))
Cigarette manufacturer (Camel, Winston, Doral)- Wachtell Lipton
- World News This Morning
- World News Tonight
- ABC News
- American Cancer Society
- Keyword
- Defamation
- Denatured alcohol
- Flavor packages
- John Marshall Courts Building
- Nicotine spiking
- Punitive damages
- Denatured alcohol
- Subject
- Additives
- cigarette design
- Cigarettes
- Coalitions
- Federal level
- Government agencies
- Health advocacy groups
- industry sponsored research
- Lawsuits
- legislation
- Legislatures
- mass media
- National level
- nicotine
- Regulations
- Research studies
- State level
- addiction
- cigarette design
- Brand
- Marlboro (PM)
Document Images
SENT BY:WAOHTELL LIPTON NY ; 3-22-94 ; 2:09PM ; WAOHTELL LIPTON~
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other cigarette manufacturers) "manipulates", "spik[es]" and
"Zorti[fies]" its cigarettes by adding signiZicant amounts of
extraneous nicotine to its products, and that the magnitude and
seriousness of this offense was such that Day One's "revela-
tion" of this "secret" "could change the tobacco industry for-
ever" by bringing uDon the industry draconian regulatory or
congressional action.
17. Defendants' accusations that Philip Morris "ma-
nipulates", "fortif[ies] and "spik[es]" its tobacco by adding
nicotine during the manufacturing process are entirely Zalse.
Philip Morris does not do that.
18. As set forth above, Day One on its programs re-
ferred to reconstituted tobacco, the adding of tobacco extract,
and the use of denatured alcohol as supposedly being implicated
in the "manipulating", "fortifying" and "spiking" of cigarettes
with nicotine:
(a)
The production of rec0n$$iSuted tobacco -- This
process, which developed in the years after
World War II and is widely used throughout the
cigarette manuZacturing industry, involves the
utilization of the stem portion of the large
tobacco leaf as well as small pieces of the lea~
itself broken off during the s~emming process.
These natural tobacco materials are recon£igured
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into uobacco sheets capable of being used in the
cigarette manufacturing process.
In order to form these tobacco materials into
sheets, it is necessary first to temporarily
separa%e out the solubles, which would otherwise
interfere with the sheet-making process. Those
solubles include nicotine. Separation of the
solubles is accomplished by adding large quan-
tiSies of water in order to dissolve the
solubles and separate them from the fibrous part
of the tobacco. The fiber consists largely
cellulose. The fiber is refined, diluted with
water and made into a sheet of tobacco paper.
The solubles (minus potassium nitrate and excess
water which has been removed, and plus certain
DQn-nicotine containing flavors which have been
added) are rec~blned with the sheets. The
process is an entirely closed one: ~_~.nlcotlne
whatsoever not found in ~he orisinal natural
~obacco ma%~rials is introduced in the
tloA. oZ the reconstitu~e~__tobacco sheetS,~ In-
deed, the reconstituted tobacco sheets contain
approxlma~ely 20-25% less nicotine than the
natural uobacco materials which are ~sed in the
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process because substantial nicotine is lost in
the process and is Dgt replaced.
Upo~ emerging from the process, the reconsti-
tuted tobacco shmmts are chopped into small
pieces and transported to the cigarette manufac-
turing plant to be blended with natural tobacco
leaves in the production of cigarettes. Because
stems naturally contain only approximately 25%
of the nicotine contained in the leaf portion of
the tobacco plant, and because, as set forth
above, substantial nicotine is lost in the
reconstitution process, reconstituted tobacco
sheets contain far less nicotine than natural
tobacco leaf and the use of such reconstituted
tobacco sheet in the ultimate tobacco blend
serves slgniZicantly to lower the nicotine
content oZ cigarettes. And contrary to Day
One's claims, no "powerful extract containin~
nicotine and flavor" or any other nicotine
substance is added in the process. Nor is there
anything at all "secret" about the reconstltu-
tion process: it has long been widely used in
the industry, publicly known and described in
publlca~ions about cigarette manufacturing going
at least as far back as 1967, [and indeed, is
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SENT BY:WAGHTELL LIPTON NY ; 3-22-94 ; 2:10PM ; WAGHTELL LIPTON~
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Cb)
even described in [the Surgeon General's Report
in ].
Tobac¢.Q extract -- During the course of the
cigarette manufacturing process, certain flavors
are sprayed onto the cu~ tobacco -- which con-
sists o£ a blend of predominantly natural leaf
with some reconstituted tobacco mixed in. The
particular flavors used are distinctive for each
cigarette brand. Prior to the end of 1993, with
respect to a single domestic brand only -- Merit
Ultra Light menthol, a low-nicotlne brand con-
raining 12 mg. nicotine per cigarette -- one
such flavor used by Philip Morris was tobacco
extract [to be verified], contrary to Day One's
claim, this tobacco extract was not "nicotine
rich" at all. Indeed, the nicotine in tobacco
extract increased the nicotine content in one
Merit Ultra Light menthol cigarette by 0.0011 --
from 12 mg.(±l) to 12.0011 mg., or by 0.009%.
[Fill in. new sentence re: (±!)] Thus, the
addition of tobacco extract flavoring to Merit
Ultras resulted in only an infinitesimal
increase in the amount of nicotine otherwise
naturally in the cigarette's tobacco blend, and
did not constitute "spiking", "fortifying" or
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(c}
"manipulation" of the nicotine contact of these
cigarettes.
Moreover, Philip Morris no longer uses any
tobacco extract at all in any of its domestic
brands. And as before, the fact that cigarette
companies have used tobacco extrac~ during the
manufacturing process of cigarettes has long
been a matter of public record: it is no "se-
cret" at all.
Denatured_~_ICohol -- Certain flavors that are
not soluble in water must be dissolved in alco-
hol in order to be sprayed onto the cut tobacco
blend during the cigarette manufacturing pro-
cess. Because pure alcohol is subject to strin-
gent and cumbersome regulations by the Bureau of
Alcohol, Tobacco and Firearms, Philip Morris
uses alcohol which has been denatured with
minute amounts oZ nicotine to render it L~drink-
able. Such denatured alcohol is purchased by
Philip Morris from outside suppliers. The
amount of nicotine contained in such denatured
alcohol is minute -- only 0.02% by weight, ~_@_~,
2/100 of one percent. The flavors that axe dis-
solved in this denatured alcohol themselves
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contain no nicotine, and the combination of
these flavors with the denatured alcohol further
dilutes the minute amount of nicotine present.
The amoun5 of additional nicotine that results
from the spraying of the alcohol-dissolved
flavors on the blended tobacco is again
InZiniteslmal, and does not constitute
"spiking", "fortifying" or "manipulation" of the
nicotine content of the cigarettes. Thus, by
way of exaumple, the calculated amount of nico-
tine increase in a 12 mg. Merit Ultra Light
menthol cigarette from denatured alcohol is
0.0024 mg. The nicotine content in the
cigarette is thus increased ~rom 12 mg.(±l) to
12.0024 mg., or by 0.02%.
And once again, there is nothing "secret"
here. It has long been a matter of p~blic
record that the Bureau of Alcohol, Tobacco and
Firearms has approved the use of nicotine in
denatured alcohol for this purpose, see 27 Code
oZ Federal ~egulat~ons ~ 21.141, and ~ndeed, al-
cohol denatured with nicotine is the only form
of denatured alcohol approved by ~he federal
government for use in the manufacture of ciga-
rettes.
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19. Thus, contrary to the false and defamatory
statements by defendants except for the infinitesmal trace
amounts of nicotine resulting from the processes described in
Paragraph 18(b) and (c) above, Philip Morris never has, and
does not now add any nicotine whatsoever in the process oZ
manufacturing cigarettes. By no stretch of the imagination
does this process involve the "spiking" or "fortifying" of
cigarettes with nicotine to "hook" smokers, to "keep people
smoking". To the contrary, between the arzival of tobacco at
Philip Morris" plants and its departure from the plants as
packaged cigarettes, there is a very substantial loss in the
percentage of nicotine in the tobacco. Thus, the only adjust-
ment of the nicotine content of cigarettes that is involved in
the manufacturing process is the z@~uc~ion of nicotine levels.
20. The false and defamatory statements contained in
Day One's broadcasts were made knowingly, recklessly, and with
malice. Among other things, defendants first published, and
then republished these defamatory accusations notwithstanding
having been expressly advised by members of the tobacco indus-
try, including Philip Morris, oZ their falsity.
21. These false and defamatory statements were
broadcast and published in and into the Commonwealth of Vir-
ginia'and throughout the United States on ~he ABC Telev±slon
Network.
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Additional ABC Dublications_Q.~....defamatory statement~
22. On Friday, February 25, 1994, on the ABC Televl-
sion Network program World News Tonight, aired from 6:30 - 7:00
~.m. (EST), anchor Peter Jennings previewed Day One's Zalse and
defamatory purported expos~ and promised viewers "a good deal
more" "this Monday evening". Jennings introduced John Martin,
the featured reporter on the February 28 and March 7 Day One
programs
Jennings: The U.S. government is considering a major
frontal assault on the Kobacco industry. The Commis-
sioner of the Food and Drug Ad~Inlstratlon said today
that he is looking into whether cigarettes might be
regulated as an addictive drug. Here is what's
chan~ed~ There is now evidence that cigarette
manufacturers carefully manipulate the n$~q~n~gQ.~z
E~_DJ~ of their product to assure each cigarette DaGks
a certain punch. The evidence has been ~ by
John Martin, who's been investigating the story for
the ABC news prosram Day One.
Martin: The investigation found that tobacco
companies are addin~ to cigarettes waste products
Zoztified with an extract that contains nicotine. As
a result, the companies are able to manipulate the
nicotine levels in ci~arett#8. The Surgeon General
has determined ~hat nicotine is a highly addictive
drug. A former R.J. Reynolds manager, who requested
anonymity, explained why the companies control the
amount of nicotine in cigarettes.
R.J. Reynolds Manager (unidentified): They put nico-
tine in the ~or~o~..~ob&¢co extract, into the product
to keep the_.._.~ns~2aer haooV.
Martin: They're fortifying, the Droduc~.~ith nico-
tine, is that correct?
Manager: The waste Ziller: Yes, they are.
(Emphasis added.)
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23. On February 25, 1994, on the ABC Television Net-
work program "20/20", aired from 10:00 - Ii:00 p.m. (EST), co-
host Hugh Downs introduced Forrest Sawyer, the host of Day One:
Sawyer: You'll be surprised when you learn what
tobacco companies are doing with the nicotine in your
cigarette.
Representative Mike Synar (Democrat, Oklahoma): Th@y
c~/~..doctor it, they can alter it. and they can liter-
ally Jeopardize the health of the American public
without having any consequence.
Sawyer: A "Day One" investigation Monday.
Downs: "Day One" Mondays at eight.
(EmDhasls added.)
24. On February 28, 1994, the ABC Television Network
program World News Tonight, aired from 6:30 - 7:00 p.m. (EST),
was once again the vehicle for attracting an audience to that
evening's Day One program. Jennlngs introduced John Martin:
Martin: Th@ "D~V One" investigation_Shows.tobacco
companies ma~n.iDiLl.ate nicotine, strongly su~estin~
they want smokers to uet the druu in controlled
doses~ ......... ~e FDA said Friday thi~ m~y be Just the
@vidence it needs_.~_o_r~ulaEe..ciuaret~es. On Wall
Street today, four major tobacco company stocks all
lost value. RJ Reynolds and Philip Morris were the
two most heavily traded stocks of all those bought
and sold.
(Emphasis added.)
25. On March 9, 1994, on the ABC Television Network
program "Nightline", hosted by Ted Koppel from 11:35 p.m. to
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12:00 a.m. (EST), additional false and defamatory suatemenus
were made and endorsed by defendants as follows:
(a) Koppel: ~ It]here's new evidence that the
tobacco indus~,~,mavbe chemicaliV.Sta~k!D~._the deck
(b) Bury (an ABe reporter): An investigation by the
ABC News Broadcast Day One found that cigarette ~Q~-
panies carefully control Sh@ ~mQDn$ Qf niGQ$in@ in
~h@Ir ciGarettes_bV adding precise amOkLnd~S Qf_~0bacco
extract which contains nicotine.
[a) Unidentified Former RJR ManaGer: Thev~Dut ~ico-
~De in the form of tobacco extract into a product to
keep the constnmer haoov.
(b) Cliff Douglas (American Cancer Society): Th@
public doesn't know that the industry m~D~D~lates
nicotine -- it takes out, Buts it back in. uses it as
(c) Koppel: Our sister-program, Day One, a couple
days ago, did a report on the tobacco industry and
the revelation of that ~rouram -- and, I must say it
astonished me..c?__and that is that you folks have
actually been adding nicotine to the oroduct0 to...the
tobacco aS a means of causinu oeoole tq_~ecome more
addicted to the Product.
(d) Matthew Myers (Coalition on Smoking or Mealth):
The recen$ ABe D~y Qne re~ort reve~led..substa/%tlal
new information that, combiDe~._~ith FDA's own inves-
tIGatlo~ .... has brought the whole issue into a n~w fo-
~S-, ....... ~.W¢.,now know that the tobacco industry con-
sciouslv manipulates the le~.!_of nicotine in tobacco
DrO4DC~ to insure that th@y're addictive.
(e) Bury: The revelation that cigarette companies
manioulate the nicotine in their oroducts has led FDA
Commissioner Kessler to conclude that cigarette manu-
facturers may intend that their products contain
nicotine to satisfy an addiction on the part of some
of ~heir customers.
(Emphasis added.)
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