Tobacco Documents Online

fEB 2,7 CONFIDENTIAL February 25, 1980 TO: Mr. S. B. Witt, FROM: R.J. Marcotullio RE: Germany - Legal Action Against Reemtsma During my visit with Wilfried in Cologne last week he advised me that legal action had been instituted the week before against Reemtsma by the Physicians Working Group on Smoking and Health (Professor Schmidt), the leading anti-smoking group in Germany. The action was filed in the District Court of Hanover. The main attack was on an advertisement for one of the leading Reemtsma brands, in which it was shown in one display, four pictures of the same girl, with different clever statements attributed to her, concluding with the statement "that's why I smoke brand X". While she looks a bit younger, the model is 30 years of age as required by German law. What is being objected to is the fact that Reemtsma is showing a healthy young girl speaking in favor of the particular brand. This is alleged to give the impression that smoking does not have any harmful health effect and this is forbidden by the German Food Law. Further, it is being alleged that since "smoking is unhealthy", the ad is also misleading under German anti-competition law. Since the case has potential for real industry impact and is an industry issue, Wilfried suggested that Reemtsma brief the members of the Verband PR Committee, which they did. Wilfried mentioned that Professor Schmidt has indicated in one of his papers that he is looking for "convinced non-smokers" as judges and he has asked his people to start identifying those judges. He found a judge (an anti-smoker) whose wife is also a judge at the same court (both at the Hanover District Court), and she is a paranoid anti-smoker, known for vehemently attacking people who smoke an her presence. Apparently the first judge will be the judge responsible for this case since he presides over trade matters and also cases are assigned by alphabetical groupings and by chance he has the R's in his group. Had it not been Reemtsma, Wilfried feels that RJR could have been the target. Further, the judge apparently called an attorney to see if he would handle the case and asked the attorney if he was a non-

Mr. S. B. Witt, Page 2 February 25, 1980 , smoker. When he replied that he was a smoker, the Judge said "too bad, I have an interesting case here against a tobacco company and ~he attorney must be a non-smoker". By chance, it turned out that the attorney had some affiliation with the tobacco industry and told Reemtsma, which will now try to have the judge removed from the case for bias. There was also some consideration being given to pursuing disciplinary action against the judge as well as possibly getting some reporting in Der Speigel. Even though it is considered that the court case is likely not to go against Reemtsma, the particular judge makes it a very onerous situation. If he stays on the case his commentary could be damaging and there is the possibility of reporting in the press. In addition, the judge is apparently considering passing the case along to the Constitutional Court on a question concerning the German Food Law, i.e. that it does not cover all advertising and, since the food law permits tobaccq advertising it is against the Constitution. This, of course, will have even greater potential for press exposure and could trigger public pressure for increased restrictions on tobacco advertising. The timing is also bad considering WHO anti-smoking activity in 1980~ Under the court system applicable to this case, there would apparently be in addition to the regular judge two lay judges. It is alleged that the principal judge has checked as to who would be sitting on the day in March when the case is scheduled and that the judge by design chose two non-smoking lay judges. In a sepa[ate matter, it was reported that a smoker has indicated that he will start a product liability case against Reemtsma soon. Apparently he smoked the same Reemtsma brand as was involved in the advertisement mentioned above, alleges that he has been a regular smoker of that brand for a long time and has now developed a heart infarction. When being treated in the hospital, he says he was told by his surgeons and doctors that his condition was due to smoking and that he would not have otherwise developed a heart infarction. It is felt that the action will be commenced soon. Further, the case will also apparently come to the same judge as mentioned above because of the alphabetical assignment of cases. The Verband PR Committee is discussing the possibility of getting two organizations (one of them theTobacco Growers Association) to commence legal action against the Physicians Working Group, challenging the group as no longer being representative, i.e. that only 35 percent of the composition of the working group is composed of physicians. RJM/gr cc: Mr. Mr. E. J. Jacob Mr. C. A. Tucker

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