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Anne Landman's Collection

ETS

Date: 1993 (est.)
Length: 16 pages
2024713141-2024713156
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Abstract

After the U.S. Environmental Protection Agency (EPA) ruled in 1993 that secondhand tobacco smoke was a Group A Human Carcinogen, Tom Humber (of Philip Morris' public relations firm Burson Marstellar) wrote this memo urging PM to apply a list of strategies to fight public health authorities on the issue of environmental tobacco smoke, or ETS. Humber's objectives included discrediting the EPA and its report, working to prevent private businesses from voluntarily enacting smoking bans, and "blunt[ing] the thrust of employer and manufacturer liability suits" over employees' exposure to secondhand smoke in the workplace. Humber urged PM to "Sue the bastards!" (EPA) to "at the very least, delay or cloud precipitous actions against us," and to help "regain some percentage of industry credibility." Humber also postulated that suing the EPA would help "stimulate other [businesses], who have heretofore been too timid to fight back against the EPA, to summon up their own courage for their own battles."

Humber recommends these activities be carried out through others, rather than by PM directly. Humber says,

"...[I]n the interests of overall strategy, all activities...require the recruitment of outside organizations or individuals...against ETS specifics or more general objectives."

He lists agencies through which PM could apply these strategies, and proposed these groups be used to "achieve a rapid start and broadscale umbrellas under which other specific operations can be unfolded."

Humber's memo also reveals his awareness of the risk of potential lawsuits against PM from exposure of employees to ETS in the workplace. To help defray such suits, Humber suggested the immediate establishment of a sort of ETS legal-aid group he called the "ETS Defense Resources Council." Humber claimed this strategy has been effective for other companies, and says,

"While [forming such a legal advisory group] will obviously not prevent new laws nor stop employers from imposing workplace smoking bans based on the threat of litigation, the rapid institutionalization of...such a [legal consulting] center would...signal the antis and plaintiffs bar that there will be no free ride on this tobacco issue either."

PM eventually carried out Humber's "sue the bastards" strategy. In 1993, the same year this memo was written, PM filed a lawsuit in North Carolina before Judge William Osteen (a former tobacco lobbyist) claiming the EPA's ruling on secondhand smoke was invalid. Judge Osteen ruled against the EPA, saying the agency had used bad science. The EPA stood by its report and appealed. On December 11, 2002--almost 10 years after the EPA fist issue its report--the U.S. Court of Appeals ruled in the EPA’s favor, and vacated Judge Osteen's opinion.

This memo was sent to PM's Vice President of Corporate Affairs, Ellen Merlo. It shows that Thomas Humber may have played a significant part in masterminding Philip Morris' interference with government efforts to educate the public about the health effects of secondhand smoke. Thomas Humber also served as President and CEO of the National Smokers' Alliance (the front Philip Morris used to fight public health smoking restrictions on the local level throughout the U.S.).

Fields

Notes

This memo was used as a trial exhibit in Texas.

Quotes

The purpose of this memo is to outline, quickly, for further discussion...recommendations for dealing with the ongoing battle over ETS.

...One of the major problems of the past, and one that appears to be growing again, is the lack of a true, coordinated, focused team effort, both within PM and within the industry. Any chance for "success" at this point will depend on synergistic efforts across a number of fronts simultaneously with strong, definitive leadership and clear and unmitigated direction...

Objectives

--Protect the franchise

--Hold the line against an escalation of smoking bans, whether instituted unilaterally by employers or by government action.

--Discredit the EPA report on ETS specifically and the EPA generally

--Establish the strongest possible input into OSHA deliberations

-Blunt the thrust of employer and manufacturer liability suits

--Establish good IAQ overall, accommodation and responsible smoking as the solutions

RECOMMENDATIONS

Litigation

Sue the Bastards!

Although already rejected more than, once, there is simply no other action that will accomplish as much across all fronts as effectively. In it is defined the substance and the symbolism of our principal message: We are right! We shall fight!

It establishes focus and directilon; it will inoculate all audiences for follow-up activity and it could, at the very least, delay or cloud precipitous actions against us. With appropriate communications overlays, it could regain some percentage of industry credibililty and it could stimulate others, who have heretofore been too timid to fight back against the EPA, to summon up their own courage for their own battles.

I shall not belabor the point, but it is serious, and it should be seriously reconsidered.

Company
Philip Morris
Author
*Humber, Tom (use Humber, William Thomas "Tom") (President of National Smokers Alliance (PM front))
TI Communications; later, as employee of Burson Marstellar PR firm, Humber became president and CEO of National Smokers Alliance, a Philip Morris "smokers rights" front group.
Recipient
Merlo, Ellen (PM Corp. Affairs VP)
Marketing Services prior to 1986. Understood use of nicotine addiction in selling PM products.
Region
United States
Named Organization
Burson Marsteller (Tobacco industry PR firm)
Tobacco Industry public relations firm.
Citizens for A Sensible Environment
Citizens for a Sound Economy
Competitiveness Council
*EPA ( use United States Environmental Protection Agency)
ETS Defense Resources Council
Forbes Magazine
Harpers Magazine
Institute for Regulator Policy (Third party mouthpiece for Philip Morris)
Affiliate of Federal Focus, a group that published a newsletter for key government policymakers that questioned risk factors proposed by government agencies.
Larry King Live - TV interview show
National Institute for Occupational Safety and Health NIOSH (NIOSH)
National Institute for Occupational Safety and Health is NIOSH.
Office of Management and Budget (OMB)
Occupational Safety and Health Administration (Held hearings in 1994 to ban smoking in workplaces)
OSHA opened hearings in September 1994 on a proposal that amounts to a virtual ban on smoking in every workplace in the nation
Rolling Stone magazine
SHB, Shook,Hardy & Bacon - industry law firm
US Conference of Mayors
Litigation
Stmn/Produced
Txag/Trial Exhibit P-17109
Txag/Trial Exhibit P-17513
Named Person
Wade, N.
Auchter, Thorne (U.S. Dept. of Labor (Formerly); became PM ally)
Assistant Secretary for Occupational Safety & Health Dept. of U.S. Dept. of Labor c. 1982. Director, Federal Focus 1994-5, Executive Director, Center for Regulatory Effectiveness 1997
Borelli, Thomas J. (PM Corporate Scientific Affairs Mgr., 1990)
Manager of Corporate Scientific Affairs for Philip Morris in 1990. Also worked for PM Corporate Services in Brussels.
Burnley, H.
Bush
Cohen, B.
Crewdson, John (Science Journalist, New York Times & Chicago Tribune)
1992 Steve Parrish asked Crewdson to investigate the EPA's subcontracting to ICF/SPI in producing the Smoking Policy Guide.
Easterbrook, G.
Huber, P.
Macarthur, R.
Orourke, P.J.
Purcell, C.
Quayle
Royko, M.
Schwartz, V.
Smith, F.
Type
MEMO, MEMORANDUM
Subject
industry
industry front group
industry influence
industry response
industry strategy
litigation

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Page 1: iqx74e00
Memo To: Ellen Merlo cc: Vic Han From: Tom Humber Subject: ETS The purpose of this memo is to outline, quickly, for further discussion, topline, but unified and synergistic recommendations for dealing with the ongoing battle over ETS. Several elements are critical to this effort: Speed -- If for no other reason, the OSHA review of ETS as a discrete substance, separate and apart from the review of IAQ in general, should command this. But one must also add the certain escalation of all ETS' activities, including the proposed Executive Order, local and state regulatory and legislative activity, unilateral employer smoking bans and' lawsuits. Centralized project management -- One of the major problems of the past, and one that appears to be growing,again, ils the lack of a true, coordinated, focused team effort, both within PM and within the industry. Any chance for "success" at this point will depend on synergistic efforts across a number of fronts simultaneously with strong, definitive leadership and
Page 2: iqx74e00
clear and unmitigated direction. Political campaign mentality -- This will i~nsure movement that capitalizes on the momentum accomplished through D-Day and should instill flexibility and accountability. Vision leading to action tempered by acceptable risk become the operating principles. Objectives o Protect the franchise o Hold the line against an escalation of smoking bans, whether instituted unilaterally by employers or by government action o Discredit the EPA report on ETS specifically and the EPA generally 0 Establish the strongest possi~ble input into OSHA deliberations o Blunt the thrust of employer and manufacturer liability suits o Establish good IAQ overall, accommodation and responsible smoking as the solutions
Page 3: iqx74e00
RECOMMENDATIONS Litigation Sue the Bastards! Although already rejected more than~ once, there i~s simply no other action that will accomplish as much across all fronts as effectively. In it is defined the substance and the symbolism of our principal message: We are right! We shall fight! It establishes focus and direction; it will inoculate all audiences for follow-up activity and it could, at the very least, delay or cloud precipitous actions against us. With appropriate communications overlays, it could regain some percentage of industry credibili~ty and it could stimulate others, who have heretofore been too timid to fight back against the EPA, to summon up their own courage for their own battles. I shall not belabor the point, but it is serious, and~it should be seriously reconsidered. If that is possible, then I shall address more specific considerations in a subsequent memo.
Page 4: iqx74e00
Media There are those who will maintain that the best -- perhaps the only -- media strategy is to have no more coverage whatsoever. Theoretically they are correct, but to pursue that theory is to ignore reality. There will continue to be considerable coverage generated at the national level and i~t will be supplemented by growing coverage at local levels. Agai~nst those certainties, the objective must be to respond, to influence and to maintain balance through a combination of company, industry and third-party spokespeople. The pro-active strategy should build upon the efforts and accomplishments managed through D-Day, which were considerable. Thus, the only stories we should be seeking are those that: o 0 Demonstrate the scientific weaknesses of the EPA conclusions in consequential terms Put the risk in perspective o o Point to EPA excesses and mistakes unrelated to tobacco Demonstrate EPA "'corruption" C ~ ~ ~ ~ o Re-evaluate the risk assessment process ~ N ~ ~
Page 5: iqx74e00
Stimulate non-tobacco industries, anti-regulation groups and others to provide their own perspectives in order to portray EPA as an agency correctly under siege o Provide comfort and articulation to smokers o Provide a counterbalance against an employer stampede for smoking bans o Indicate the company's and industry's resolve on behalf of smokers and employers who wish to preserve the "rights of all" o Indicate the resolve of the company to defend li~tigation against the company and to provide aid and counsel to others who must defend against litigation o Point to separate sections, ventilation and accommodation as the only rational solutions of a democratic society Against that long list, it is critical for people to understand that the thrust of such efforts would not be broadsides aimed at the herd of daily journalists, but a sophisticated and carefully targeted approach that will maximize the opportunities available from revisionist
Page 6: iqx74e00
journali~sts and opinion leader publications to highly speci~alized media, such as labor and investment newsletters as well as sci~entific, leg,al and human resource journals. For example, P.J. O'Rourke, the columnist for Rolling Stone and other publications, is the kind of voice that would appeal to smokers, Mike Royko the kind who would appeal to blue collar workers. Harpers' magazine generally and Rick MacArthur specifically should be approached, as representati~ve of liberal thought leader publications. Victor Schwartz would be just one name suitable for a legal journal piece or possibly for publi~cations aimed at employers. While there are sensitivities, Peter Huber is well positioned~to categorize the junk science as parts of the EPA report. And, we should continue to try with the likes of John Crewdson, Nick Wade and Gregg Easterbrook, as they represent mainstream journalists with the ability to comprehend and investigate the scientific issues. In the end, we simply must inventory all reasonable publications and writers, matching approaches as appropriate, as we successfully did with the Forbes cover story (see attached). By the same token, we must be defensively prepared to deal with contingiencies such as a Larry King Live which, givenihis posture toward smoking, would be assumed:to:be negative. Clearly, the cellular telephone example demonstrates the power of that specific
Page 7: iqx74e00
show and implies the power of others. The key to all media will be a combination of message and messengers -- meticulously prepared, consistent and credible. Absolutely critical will be the ability to:build upon the precedent established by the D-Day plan to call upon the scientific experts for public service and to expand their number along a variety of fronts, some of which will not necessarily require discussions of smoking or ETS. Whether for media, legislative testimony or coalition building purposes, the recruitment, education and training of a variety of experts must be an integral part of any effort that hopes to advance credibility -- or, conversely, successfully diminish~ that of the other side. Thus far, with ETS, that effort has been conducted under industry aegis, and the results -- from a pubic relations perspective -- have been less than successful. I believe such efforts must be given renewed emphasis, and I would like to discuss my qualifications, which I think are unique, to participate in that effort. We should specifically discuss the potential for EPA Watch as a part of media and other efforts. I have previously discussed with Tom Borelli several ideas for expanding the impact of EPA Watch and the reputation of Bonner Cohen as an
Page 8: iqx74e00
expert on EPA matters. At a minimum, a series of radio actualities with Bonner commenting on EPA matters could reach an extremely wide audience, and we can tailor geographically for maximum appeal. We think it also possible to establish a standard format that could give Bonner presence as an expert commentator, but that requires further i~nvestigation. As a part of the D-Day operation, Bonner's name was provided to several Colorado journalists as an outside resource on EPA transgressions. Coalition Development and Mobilization/Third Party Activity For the purpose of this memo, and, I believe, in the interests of overall strategy, all activities that require the recruitment of outside organizations or individuals, against ETS specifics or more general objectives, are being lumped together. While one could exhaustively catalog many more potentials, and we should as we go, the concentrationn here is on those that, because of existing relationships, past activities and similar or mutual interests can provide the most immediate operational benefits. The Institute for Regulatory Policy Started specifically to address the panoply of problems in the risk assessment and regulatory process identified by OMB in August 1990, IRP is an existi~ng mechanism that currently
Page 9: iqx74e00
is in the best position to assemble and mobilize a wide variety of business groups, corporation~s, local governments and other parties concerned about or victimized by EPA excesses. Burson-Marsteller has worked with IRP, and its Director, former OSHA Administrator Thorne Auchter, since its inception, and has several clients who are among IRP's key supporters. In September, 1992, B-M mounted an intensive grass-roots effort on behalf of IRP to solicit quality signatures for a petition to President Bush asking,him to add risk assessment to;the moratorium on regulatory activity. That effort produced a total of 349 letters, the signers of which now represent an important base for a number of activities. Attached is a list of signers. Citizens for a Sensible Environment (Citizens for a Sound Economy) This group is well-known to Philip Morris, and, like IRP, already has a track record of activity and is well-positioned to undertake a number of coalition-building activities. r. ~ Burson-Marsteller has provided support to~several previous ~; ~ activities, most notably in August 1992, with regard to a ~ ~ CSE-sponsored conference in Columbus, Ohio, featuring Vice +o; ~ ~ +~
Page 10: iqx74e00
President Quayle. Working with the office of the VP, the staff of the Competitiveness Council, CSE and IRP, B-M was involved in both concept and execution of a strategy that made sure that media coverage of the discrete message regarding over-regulation superseded the political noise surrounding the VP's appearance. The U.S. Conference of Mayors Burson-Marsteller was responsible for the broadeni~ng of a resolution (attached) adopted at the last annual meeting to include EPA-specific language and to request specifi~c research regarding the mayors' concerns about "unfunded federal mandates." More recently, leadership of the Conference has asked B-M to develop strategies and implementation support to put selected big-city mayors and the Mayors Conference front and~ center in the battle. The potential for this activity is considerable: for the immediate objecti~ve; for building relationships for local initiatives; and~, for increased media attention to highly credible and~ newsworthy opponents to EPA excesses. Conference leadership has stressed to us in recent weeks that thi~s is among the hottest topics with their membershi~p. We should immediately discuss next options from PM's perspective.

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