Anne Landman's Collection
Report on Policy Aspects of the Smoking and Health Situation in U.S.A.
Abstract
This rich document is an exhaustive report written by two members of British tobacco industry recounting a month-long trip they took to the United States in 1964, 8 months after the U.S. Surgeon General issue the first report on Smoking and Health. The purpose of the trip was to investigate the current status of smoking and health issues in the U.S., and research ongoing lawsuits against tobacco companies in the U.S. The authors (who are identified only by their initials) begin by saying that the executive officers of R.J. Reynolds, American Tobacco and Brown & Williamson "firmly believe that is has not been proved that smoking is harmful to health." They also say, "On this important point, however, Mr. Cullman (Philip Morris), Mr. Harrington (L&M) and Mr. Cramer (Lorillard) would hedge a little." [Note: In 1969, Cullman categorically denied, in testimony before a Congressional Committee, that smoking was causally related to disease. See http://tobaccodocuments.org/landman/TIMN0124175-4186.html] The authors also point out the dilemma U.S. cigarette manufacturers faced by performing in-house smoking and health research, and the road they ultimately chose to follow: [From Page 16]:
"The [U.S.] manufacturers have to choose between - (a) Doing no smoking and health research and being represented in law suits as negligent (although "to meet public concern", they finance CTR and AMA research) [and] (b) Doing smoking and health research and being forced to admit in law suits that their experiments have caused cancer in animals and yet that they have made no changes in tobacco smoke to eliminate the tumours. The manufacturers have chosen (a)..."
The U.S. cigarette manufacturers also feared British tobacco companies' internal bioassay research programs would be construed as an admission that cigarettes caused disease. [Page 8]:
"The main criticism of TRC's research programme was that bio-assay research at Harrogate was an implied admission that cigarettes are harmful...We agreed that Harrogate bio-assay research could be represented as an implied admission, but we made the points that TRC...research was based on the needs of the situation in the U.K., including...a need from the legal point of view to give no grounds for an accusation of negligence against the manufacturers."
The authors also describes Philip Morris' intent to hold back any breakthrough information on smoking and health until they could make a profit from it first:
[From page 23]
"...Mr. Cullman added that he could not say when breakthrough information would be pooled -- e.g. they might want to use it first themselves in their markets including the U.K."
The authors also point out that the American companies' attitudes and actions on smoking and health were driven by lawyers ("who exercise close control over all aspects of the problem"), while in the U.K., industry behavior was driven by the "necessity of avoiding clashes with the 'medical establishment' - i.e., the Ministry of Health, the Medical Research Council, the Royal College of Physicians, leaders of medical opinion, etc." This was because in the U.S., the "Department of Health, Education and Welfare has much less public status than the Ministry of Health." They also observed that the "A.M.A. [American Medical Association] appears more concerned with safeguarding the financial interests of doctors...than with the doctors' patients."
The document also confirms the industry's interest in youth smoking, saying [on Page 29]: "There was more anti-smoking propaganda in the schools but no sign of it being effective. The percentage of smokers in the 16-24 age group has not declined."
This report points out differences between the U.S. and British tobacco companies and how they approached the difficult issue of smoking and health in the two countries.
Fields
- Quotes
We were in the U.S.A. from 10th September to 15th October, 1964, and had discussions with the Presidents of the six main cigarette firms in the U.S.A., on ex-President and several directors, the Legal Advisors of four of the firmst and another lawyer advising two of the firms, the Directors of Research and other scientists of give fothe firms, Mr. J.M. Gregory and Mr. D.A. Coulson of the Imperial Tobacco Co., (of Great Britian and Ireland), Ltd., the Administratof of the U.S. Cigarette Advertising Code (Governor Robert B. Meyner), Senator J. Sherman Cooper (Republican, Ky.), The American Medical Association...The Council for Tobacco Research-U.S.A. and its Scientific Advisory Board, Mr. George Allen and Mr. DeHart of the TObacco Institute. Hill and Knowlton, New York, two senior members of the National Cancer Institute and two of the National Heart Institute, Dr. E.L. Wynder and his senior staff...The complete list of people with whom we had discussions is given in Appendix I.
...This report may be clearer if we record at the outset that Mr. Bowman Gray (Reynolds), Mr. Walker (A.T.Co.) and Mr. Finch (B&W) firmly and sincerely believe that it has not been proved that smoking is harmful to health. On this important point, however, Mr. Cullman (Philip Morris), Mr. Harrington (L&M) and Mr. Cramer (Lorillard) would hedge a little. ...
[From Page 3] LEGAL MATTERS
[Page 8]...Implied Admissions
Implied admissions that cigarettes may be harmful, when made by any manufacturer, are immediately criticized by their competitors as capable of being damaging in lawsuits. Such admissions, we were told, may affect decisions by juries on whether smoking caused the disease of the plaintiff and whether the defending manufacturer was aware that his cigarettes might be harmful.
The main criticism of TRC's research programme was that the bio-assay research at Harrogate was in implied admission that cigarettes are harmful...B&W consider that TRC"s research policy might be particularly prejudicial to them through their association with B.A.T.
We agreed that Harrogate bio-assay research could be represented as an implied admission, but we made the points that TRC constantly bore in mind the possible repurcussions of its actions in the U.S.A. and that T.R.C. research was based on the needs of the situation in the U.K., including a need from the legal point of view to give no grounds for an accusation of negligence against the manufacturers...
...There was some difference of opinion among the lawyers as to whether what TRC was doing in bio-assay research could actually be introduced in evidence in a case against a U.S. manufactuers, under U.S. rules about evidence.
- Company
- Philip Morris
- Author
- R, P.J.
- T, G.F.
- Region
- United States
- United Kingdom
- Named Organization
- Ad Hoc Group
- A.D. Little, Inc. (Performed biological research & testing for Liggett & Myers)Performed biological research and testing for Liggett on XA (Palladium) cigarette
- American Medical Association (physicians group)Professional trade group representing American physicians.
- American Tobacco Co.
- American Cancer Society
- Appeal Court
- Appropriations Subcomm
- Armour Research Foundation
- BAT, British American Tobacco
- Battelle Research Institute
- Bio-Research Institute (Conducted studies for CTR)Conducted study for Council for Tobacco Research on hamsters exposed to tobacco smoke, finding that it produced malignant tumors.
- Board of Trustees
- BW, Brown & Williamson
- Committee on Appropriations
- Committee on Health Education + Welfare
- Congress
- *Council for Tobacco Research-- U.S.A. Inc. CTR (Formerly Tobacco Industry Research Committee (TIRC))Created and funded by the tobacco industry to award grants to study of the link between smoking and disease. Part of a four decade effort to cast doubt on the links between smoking and disease.
- Current Digest
- Department of Agriculture Subcommittee
- District Court
- Federal Court
- Fl Supreme Court
- Food + Drug Research
- 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.
- Harrogate
- Heart Magazine
- United States Department of Health, Education & Welfare (Branch of U.S. Government concerned with public health)
- Hill & Knowlton Inc. (Tobacco industry PR firm, 1953-68)Public relations firm for the tobacco industry from 1953 through 1968.
- House of Delegates
- HRI, Health Research Inst, Roswell Park
- Imperial Tobacco
- Inst Journal
- Interstate + Foreign Commerce Comm
- Italian Monopoly
- Joint Comm
- Kotin Falk
- Larus & Brother Company
- Litigation Committee
- LM, Liggett & Myers
- LOR, Lorillard
- Medical Research Council
- Medical School of Virginia
- Ministry of Health
- National Heart Institute
- National Cancer Institute NCIDivision of Cancer Prevention and Control, National Cancer Institute located in Rockville, MD
- New England Journal of Medicine
- New Medical Research Center
- National Institutes of Health
- New York Counsel
- New York State Dept of Health
- Policy Committee
- Printers Ink
- Readers Digest
- Reference Comm
- RJR, R.J.Reynolds
- Royal College of Physicians
- Scientific Advisory Board
- Senate
- Surgeon General's (Advisory) Comm
- Sloan Kettering Memorial Institute
- Spot Tv
- State Court
- State Lab
- State Mutual Life Assurance Co of Americ
- Stephano Bros
- Supreme Court
- TI, Tobacco Institute
- Tobacco Research Lab
- Tobacco Research Committee (British Industry Research Organization)
- University of Kentucky
- US Tobacco
- U.S. Department of Agriculture
- Lung Cancer Task Force
- Named Person
- Allen, George V. (TI President & Exec. Director 1961-66)President and Executive Director for the Tobacco Institute, Inc. from 1961 through 1966.
- Andervant, A.B.
- Auerbach, Oscar, M.D. (Research Scientist, VA Hospital, E. Orange, NJ)
- Austin
- Bates, William Wannamaker, Jr., Ph.D. (L&M Research Director, Tobacco Working Group)Defense
- Battista, Sam (Pharmacologist, Arthur D. Little)
- Baveley
- Belli
- Berkson, Joseph, M.D. (CTR Special Projects, Biostatistician, Mayo Clinic)Wrote articles and letter expressing doubt that there was any real connection between cigarette smoking and cancer.
- Bernfeld, Peter, Dr. (CTR Grantee, Bio-Researcher with Freddy Homburger)
- Blasingame, Francis J. L. (Exec. Director, AMA Education & Research Fdn, 1964)F.J.L. Blasingame was the Executive Director of the American Medical Association's Education and Research Foundation in 1964, which accepted large grants from the tobacco industry to conduct research. Blasingame accepted a $1 million grant for research in 1964 from the six major U.S. Tobacco Companies. (Bates No. TIMN0082718/2719)
- Bloomfield
- *Blunt, William W. (use Blount, William A.) (Former President, Lorillard Tobacco Co.)
- Bock, Fred Garland, Ph.D. (Biochemist, Roswell Park, Anti-Tobacco Expert)
- Bowling, James Chandler (PM; TI, Corporate Affairs Director & VP; Board of Dir.)Vice President and Director of Sales at Philip Morris from 1967 to 1976. He was Senior Vice President of PM from 1977 to 1984 and on the Board of Directors from 1971 to 1984. Also worked for the Tobacco Institute. Attempted to improve the image of smoking in the face of negative health news.
- Bright, W.H.
- Brown, J.
- Burford
- Clements, Earle C. (TI President, '67-70)President of the Tobacco Institute, Inc. from 1967 to 1970.
- Cook, C.
- Cooper
- Cooper, J.S.
- Coulson, D.A.
- Cova
- Cramer
- Cullman, Joseph Frederick III (PM President & CEO (1957-1970))Executive vice president and senior marketing executive of Philip Morris in the 1950s. Exec. VP 1955-57. President in 1958, held that position until 1967. Chairman from 1968-1972 and acquired title of CEO. Chairman of the Executive Committee, 1979-85. On the Board of Directors from 1954-1985.
- Dalhamn
- Darkis, Frederick Randolph, Ph.D. (Director of Research at Liggett & Myers)F. R. Darkis was employed by Liggett & Myers, Inc. and served as M.D. Director of Research from 1954 to 1959 and served on the Board of Directors (Durham, N.C.) from 1957 to 1964. He served as Vice President from 1960 to 1962 and served as Vice President (Director of Research) from 1963 to 1964. (Source: L&M, et al Summary of Officers & Directors - LGI/LTC Liability Notebook.) Vice-president for research at Liggett in 1954 (Allman complaint p. 58). Dr. Darkis ordered replication of Wynder's mouse-painting experiments using Liggett brand cigarette, Chesterfield. Chesterfield tests were positive, a fact that Liggett never revealed (Allman complaint, p.58).
- Davis
- Dehart
- Dixon
- Fieser
- Finch, Edwin P. (BW Pres; TI Exec. Comm.)Finch was President of Brown & Williamson in 1963.
- Fine, A.M.
- Fortis, A.
- Galloway, Alexander H. (RJR President c. 1967, Dir. 1953-73, Treas. '54-58)Defense
- Gray, Bowman Jr. (Chairman for RJ Reynolds Tobacco Company)1907-1969
- Green
- Gregory, J.M.
- Griffith, R.B.
- Haas, Frederick P. (Liggett, General Counsel)Frederick P. Haas was a member of the Board of Directors of Liggett & Meyers from 1966 through 1976. From 1975 and 76 he was Special Counsel. (N.M., L & M Liability Notebook, Section 3, Personnel List)
- Haggerstat
- Hammond, Edward Cuyler, Sc.D. (Epidemiologist, ACS (1950s), Plaintiff's Expert)PMI
- Hanmer
- Hardy, D.
- Harrington, M.
- Harris, O.
- Heimann, R.K.
- Hetsko, Cyril F. (VP of ATC; CTR Director)Vice President and General Counsel for American Tobacco. Served on the Executive Committee as a CTR Director.
- Hill
- Hockett
- Holtzman, Alexander (PM Asst General Counsel. 1975-85.)
- Horn
- Hoyt
- Jacob
- Johnson
- Kensler, Charles J., Ph.D. (Pharmacologist, Boston U, School of Med., Industry Expert)Defense
- Kissen, D.M.
- Kornegay, Horace R. (TI President and Exec. Director)VP Leaf Ops (RJR), TI Chairman (1985)
- Kotin, Paul, M.D. (CTR SAB; Associate Prof. of Pathology, USC)
- Larson
- Little, G.G.
- Maxwell
- Mccardle
- Meyner, R.B.
- Moore, J.
- Nelson
- Neuberger
- Old, J.
- Oswald
- Pritchard
- R, P.J.
- Ramm, Henry H. (CTR Chair; RJR VP & Gen Counsel, c. 1967)Chairman of the Board & General Counsel for R.J. Reynolds and CTR Chairman 1971-1975.
- Reid, D.D.
- Russell, J.
- Sanfield, M.
- Sartori
- Seay, W.
- Seevers
- *Seltzer, Dr. Carl C. (use Seltzer, Dr. Carl C.) (Industry consultant, CTR grantee, CTR Special Projects)Defense
- Shubik
- Sincus, M.
- Smith, F.
- Smith, P.
- Stedman
- Surgeon General
- T, G.F.
- Terry
- Tilt, R.K.
- Tso
- Wade, T.M.
- Wakeham, Helmut R. R., Ph.D. (PM R&D VP)Vice President and Director of Research & Development, Philip Morris
- Wakely, C.
- Walker, B.
- Weiss, W.
- Weissman, George (PM Chairman & CEO '79-84)Vice President of Philip Morris from 1954 to 1956. Vice President and Assistant to the President in 1957. Vice President of Marketing from 1958-59. Executive Vice President of Marketing in 1960. Exec. VP Overseas in 1961, Exec. VP PM International 1962-66. President from 1967 to 1972. President and Chief Operating Officer in 1973. Vice Chairman from 1974-78. Chair and CEO from '79-84 and on the Board of Directors from 1959-84.
- Wilkinson, H.M.
- Wynder, Ernst L., M.D. (Epidemiologist, Sloan Kettering, Anti-Tobacco Expert)1993 First scientist to report in 1950 on the carginocencity of cigarettes in rats painted with tar. Assistant at Sloan-Kettering Institute for Cancer Research Directed the American Health Foundation (AHF) from 1984 to his death in 1998.
- Yeaman, Addison Y. (BW VP & General counsel; CTR Chairman of Board)General counsel for B&W. CTR Chairman/President 1975-1981
- Heggestat
- Type
- REPT, REPORT, OTHER
- Litigation
- Stmn/Produced
- Subject
- legal concept
- legal system
- lawsuits
- industry sponsored research
- industry strategy
- liability
- Youth
Document Images
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INTRODUCTION
F'e were in U.S.A. from 10th September to 15th October, 1964, and
had discussions with:-
The Presidents of the six main cigarette firms in U.S.A., one
ex-President and several Directors, ,
The Legal Advisors of four of the firms and another, lawyer
advising two of the firms, '
The Directors of Research and other scientists of five of the
firms, ,
Mr. J.M. Gregory and Mr. D.A. Coulson of the Imperial Tobacco Co.
(of Great Britain and Ireland) Ltd.,
The Administrator of the U.S. Cigarette Advertising Code (Governor
Robert B. Meyner),
Senator J. Sherman Cooper (Republican, Ky.).
The American Medical Assoication - Senior Executives, and the
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Chairman and two other members of.the A.M.A. Committee for Research
on Tobacco and Health,
The Council for Tobacco Research - U.S.A. and its Scientific
Advisory Board,
Mr. George Allen and Mr. DeHart of the Tobacco Institute.
Hill' and Knowlton, New York,
Two senior members of the National Cancer Institute and two
the National Heart Institute,
Dr. E.L. 'r.ynder and his senior staff; Dr. E.C. Hammond;
Dr. W. ;7eiss, Dr. J. Berkson, Dr. P. Bernfeld, Dr. C.C. Seltzer,
The complete list of people with.whom we had discussions is
Appendix I.
of
given in
Th?s report deals only with policy aspects of smoking and health
problems in U.S.A. A separate report on research aspects has been prepared.
This report may be clearer if we record at the outset that '
Mr. Bowman Gray (Reynolds), Mr. Walker (A.T.Co.) and Mr. Finch (B,& W.)firmly and sincerely believe
that it has not been proved that smoking is
harmful to health. On this important point, however, Mr. Cuilman (Philip
Morris), Mr. Harrington (L. & ii. ) and Mr.
little.
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Cramer (Lorillard) would hedge a
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Of the six Presidents, Mr. Gray, by virtue of his personality,
smoking and health problems.
confident that smoking will eventually be exonerated. Mr. Cramer is
distinguished among the Presidents by thinking highly of Dr. Wynder.
Mr. Harrington has come up on the leaf side of Liggott & Myers, and
3sacr learnt about the smoking and health side of the business only after
he had become President. Mr. Finch, like Messrs. Walker, Iiarrington &
Cramer, has only recently been appointed President, but Mr. Bowman Gray
has already appreciated Mr. Finch's contributions to discussions of
of the "hit-back", aggressive type of policy in smoking and health.
Mr. Cullman has stopped assuring his stockholders annually that he is.
experience-and his Company's share of the trade, is undoubtedly the
leading personality. Mr. Walker is primarily a salesman and an advocate
Our reception everywhere was most friendly. Mr. Bowman Gray, in
particular, expressed appreciation that we had taken the trouble to go
to Winston-Salem to see him. .
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LEGAL ]f.ATTERS
Diff erences between U. S. and U. K.
We should perhaps first emphasise that, despite the obvious
similarities between the smoking and health situations in U.S,A. and
U.K., there are major fundamental differences which prevent the two
countries ever having anything like a complete identity of view. We
emphasise this point because we found those differences under-appreciated
In the U,S., by far the most important factor conditioning action by
the manufacturers is the law suit situation and the danger of costly
damages being awarded against the manufacturers in a flood of cases. Not
so long ago thR drug industry was faced with some 300 law suits with claims
totalling &-60,000,000, almost all of which in the*end were settled out
of Court, so this type of danger is real. The leadership in the U.S.
smoking and health situation therefore lies with the powerful Policy
Committee of senior lawyers advising the industry, and their policy,
very understandably, in effect is "don't take any chances." It is a
situation that does not eneourage constructive or bold approaches to
smoking and health problems, and it also means that the Policy Committee
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of lawyers exercises close control over all aspects of the ~roblems.
Law suits can be brought against the U.S. manufacturers by smokers
developing one of the diseases associated with smoka.ng (or by their widows,
by substitution) on the basis of breach of express warranty (e.g. manufac-
turer advertised the cigarettes to be free from harm), breach of implied
warranty (e.g. failure to meet standards implied by State laws) or
n,e,gligence. It is relatively difficult to b ase a case on negligence so
that the U.S, law suits are usually based primarily ori breach of warranty.
In addition, they are usually financed on a contingency f ee basis, the
plaintiff's counsel financing the case for an agreed percentage of the
damages ( e. g, 40% or 60%) if successful. The cases in U. S.A. are usually
heard before juries, to whom highly emotional appeals can be directed and
full use made of the convenience to plaintiffs of the U.S. rules regarding
introductic+n of evidence.
By contrast, we understand that in the TJ.K., any suit against a man-
ufacturer would almost have to be based on alleged negligence by the man-
ufacturer (as long as the manufacturer's advertising was free from
expressing a warranty), would most likely be heard before a judge and n.t
a jury, and would have to be financed by the plaintiff, with the risk of
costs being awarded against him if he lost. It would therefore be very
much more difficult for a plaintiff to win a suit against a manufacturer
in Britain, and of course TRC's research programme takes into account the
need f or the manufacturArs not being negligent in resesrch.
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In the U.K., the prime need is for objective and effective research
and the most important factor external to iRC's research policy that conditions
their action in smoking and health matters is the necessity of avoiding
: alashes with the "medical establishment" - i.e. the Ministry of Health,
The i'edical Research Council, the Royal College of Physicians, leaders of
medical opinion, etc. The power of the medical establishment in the U.K.
was particularly seen in the incident of Sir Cecil Y7akely and the
humiliating recantation forced on him. In U.S.A. by contrast, the
Department of Health, Education and Welfare has much less public status
than the Ministry of Health; the equivalent in U.S.A. of the Medical
Research Council (viz. the National Institutes of Health) has much less-
power and standing; there are a number of doctors who dissent from the :
conclusions of the Surgeon General's Advisory Committee and are prepared
to say so; the A.M.A. appears more concerned with safeguarding the financial
interests of doctors through political lobbying than with the doctor's
.patients; and there are hundreds of thousands of tobacco growers whose
future votes silently influence the outcome of smoking and health issues
with political aspects. The U.S. manufacturers naturally do not disregard
'medical opinion, but this opinion has relatively less weight in smoking ~
and health matters than U.K. medical opinion.
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Law Suits Pen3ing
Some 30-35 lax suits have been moving recently, including some which
have been dismissed. Of these 30-35, 15 have been filed since publication
of the S.G.A.C. report. Reynolds have been served with 9 suits in 8 months;
A.T. Co. have had about the same. The future of the law suits largely
depends on the outcome of the Green case, the re-hearing of which is due
to start in Florida on 9th November and which we discuss below.
The cases pending are mainly based on lung cancer, though there are _
now two cases in nhich the plaintiff has emphysema. Emphysema and heart
disease cases could become worse than lung cancer; for one thing they are
more common, and for another the plaintiff does not die so soon, and death
of the plaintiff limits the maxdmum damages in some states. Lorillard had
a case against them in Illinois, where the maximum damages for causing
unlawful death are $30,000. When the plaintiff in this case died and the
lawyer financing it saw vrhat the expenses were likely to be, he dropped
the case.,
The first case due to come up is a case against Lorillard in
Mississippi but it is likely to be postponed. The first major case will
therefore be the re-hearing of the Green case against A.T.Co. in Miami,
Florida. This is.regazYied by all the lawyers with great seriousness. In
the original hearing of the case in Florida, the judge of the District
Court had put certain queations to the jury and these, with the verdicts
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_1. Did Green have lung cancer? - Yes
2. Did lung cancer cause Green's death? - Yes
j. Was Green'ss lung canoer caused by the smoking
of Lucky Strike cigarettes? - Yes
4. Could the manufacturer, at the time it sold the
cigarettes which Green smoked, have known by the
exercise of r easonable skill and f oresight that
its Lucky Strike cigarettes might cause cancer - No.
The plaintiff received no damages and appealed on the ground that the
answer to question (4.) ought not to affect his right under a law of Florida
to recover damages. In considering the appeal, the Appeal Court put a
question to the Supreme Court of Florida, as could be done under Florida
law, asking for an interpretation of a law of Florida about the implied
conditi.on of goods marketed in Florida. The Florida Supreme Court gave
an Opinion as requested but in effect said at the same time that the
Appeal Court had asked them the wrong question. The Appeal Court has.
ordered a re-tr4mil by the District Court of the question only of A.T. Co.'s
liability for damages, but in view of the complications of the situation,
no lawyer knows the precise wording of the quostion that has to be re-tried."
Mr. Ramm (R.J.R.) expects the jury to be asked whether the cigarettes were
"reasonably fit and wholesome"for their intendod use, and a basic con-
sideration in determining this is likely to be the proportion of smokers
who develop lung cancer. It is also felt that an ar,,.ument that the defence
wil7l use is that cases could be brought on a similar basis against many
other things sold in Florida - whiskey, butter, cars, etc. The difficulty
is that, under the relevant Florida State law it is no defence that, at
the time tho-cigarettes were smoked, A.T. Co. could not have knownthey
might be harmful; the warranty imposed by the Act is unqualified.
There is a general feeling that A.T. Co. may well lose the case:
indeed, one lawyer thought A.T. Co. had handled it badly. Mr. Russell
(Loiillard) was more optimistic than the others: ho felt that while
juries are anti-big business, they also feel that it is unreasonable of
people to smoke r ecklessly and then seek damages. The case is expected
to last about two weeks.
If A.T. Co. lose, the lawyers financing the law suits - e.g.
Messrs. Belli, Bloomfield, McCardle - may fool re-encouraged, after they
had been concluding that there were more profitable fields elsewhere f or
claims. There is then likely to be a flood of now cases, not only in
Florida. On the other hand, A.T. Co. are almost certain to appeal against
an adverse verdict - which will hold off some new cases - and the Green
case may not do much damage as a precedent, because the legal issues are
so narrow. The claim that smoking caused the disease has to be re-proved
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.in every case, because of course it has to be proved that the particular
plaintiff's lung cancer (or other disease) was duo to smoking. While
previous wordicts on this point are a psychological advantage to the
plaintiff, they are not a legal precedent.
' It is impossible to guess what the damages would bo if A.T. Co. lose
the case. The damages can turn on mcqy personal, emotional and irrelevant
factors in the appeal to the jury. When prossod by us, one lawyer guessed
$120,000 ar_d another $250,000.
Two of the other cases pending have unusual variations. A.M. Fine .
of New York has accused Philip Morris of breach of express and implied
; warranty and negligence, and accused Hill & Knowlton and CTR of conspiracy.
The plaintiff, howe.ver, may well not succeod in stating sufficient causes
of action against H. & K. and CTR. Lorillard have a case against them in
Michigan in which the plaintiff is claiming damages of X9,999. A claim
of X10,000 would take it out of the jurisdiction of the State Courts ~.
into the Federal Courts.
Mr. Blunt told us that the defence of the Pritchard case in Pittsburgh,
involving two trials, had cost Liggett & Myers over ~1,000,000. The
plaintiff in the Lartigue case against Liggott & Myers and R.J. Reynolds
in New Orleans has asked leave to appeal.
It is, of course, the practice of the defending companies to retain
private agents to investigate the private lives and backgrounds of the
plaintiffs. Mr. Ramm made the interesting point that quite a number of
plaintiffs are alcoholics. The extent to which liver damage may affect
metabolism of carcinogens and an individual's liability to develop lung
cancer has not been studied, but some animal experiments by Kotin & Falk
suggest that it may be worth investigating.
Visit of U.K. Observer to the Green Case
Mr. Jacob suggested that T.R.C. might find it worthwhile to send an
observer to attend the Green case. He thought that in consequence of the
narrowing of the issue t o the reasonable fitness of the product - i.e.
should the product not have been put on the market - the issue came closer
to the issue of negligence likely to be important in any Eaiglish case. We
see no objection to Mr. Jacob's proposal but we are not in a position to
judge the relevance of the Green case to possible law suits in the U.K.
Influence of the Lawyers
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- In consoquence of the importance of tho lawsuits, the nain power in
the smoking and health situation undoubtedly rests with the lawyers, and
more particularly with the Policy Committoo of lawyers. The members of
,
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Cy. Hotsko (A.T.Co.)
Add. Yeaman (Brown & Williamson)
Paul Smith (P.M.)
Fred Haas (L. & M.)
John Russell (Lorillard)
This Committee is extremely powerful; it determines the high policy
of the industry on all smoking and health matters - research and public
relations matters, for example, as well as legal matters - and it reports
directly to the Presidents. The Committee is particularly concerned with
possible Congressional legislation and it drew up the Cigarette Advertising
Code. Yie understand that the Code was largely the work of Mr. Ramm. As
Chairman of this Committee and the representative of the largest manufacturer,
Mr. Ramm is probably the most influential member of the U.S. tobacco industry,
apart from the Presidents, in forming industry policy in the field of smoking
and health.
The Policy Committee set up another Committee of lawyers, known as the
Ad Hoc Group, to assist them. The members of the Ad Hoc Group are:-
Dave HarB,y. . (PM) (Chairman)
Jane: Brown (A.T. Co.)
r^.d. Cook ' (RJR)
Ed.. Jacob (RJR & B & W)
John Russell I (Lorillard)
(5)
Fred Haas (L & M)
Alex Holzman (PM)
The Ad Hoc Group is concerned with -
Medical - legal matters.
Scrutinizing proposed action by other'tobacco
Clearing papers
(e.g.
organizations.
Dr.'Little's annual report).
Watching the Inter-State and Foreign Commerce Committee of
the House of Reprosentatives.
Making certain that no assurances of any kind relating to
the safoty of smoking are given by any manufacturers (e.g.
in advertissmotits).
In addition, there are two other Committees of lawyers - one for
dealing with Federal Trade Commission matters and a Litigation Committee
T
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i
.consisting of New York Counsels of the larger Companies - e.g.
L'r. Chandler Cook (R.J.R.) Mr. Coleman, Mr. Jacob and about 14 others.
The lawyers aro thus the most powerful group in the smoking and
health situation. It is unccrtain, howevur, whether the Presidents of
the three smaller Companies aro fully in agreement with this situation,
considering the lawyers to be too restrictive and too dominant generally
in the industry. They are, however, neither powerful enough nor sufficently
sure of themselves to do anything about it.
Implied Admissions
Implied admissions that cigarettes may be harmful, when made by any
manufacturer, are immediately criticised by their competitors as capable
of being damaging in law suits. Such admissions, we were told, may affect
decisions by juries on whether smoking caused the disease of the plaintiff
and whether the defending manuf4cturer was aware that his cigarettes might
be harmful.
The main criticism of TRC's research programme was that the bio-assay
research at Harrogate was an implied admission that cigarettes are harmful.
This was the first point raised by Mr. Hetsko in our meeting with Mr. Walker.
It was the main point made by Mr. Bowman Gray who referred to ISr. Ramm's
discussion of the subject with us last year. B dc W consider that TRC's
research policy might be particularly prejudicial to them through their
association with B.E.T.
{7o agreed that Harrogate bio-assay research could be represented as
an implied admission, but we made the points that 1RC ccnstaiitly bore in
mind the possible rcpercuasions of its actions in U.S.A. and that T.R.C.
research r.as based on the needs of the situation in the U.K., including
a need from the legal point of view to give no grounds for an accusation
of negligence against the manufacturers. PJR felt that Mr. Bowman Gray
was less critical in this matter than he had been on his 1963 visit, and
indeed Mr. Gray specifically stated at the end of the meeting that he
was not trying to make us change our minds: the important thing,
Mr. Gray felt, was that we were in touch with each other and could dis-
cuss these matters.
In reply to Mr. Hetsko's criticism, GF-4 suggested that publication
of tar and nicotine contents on the packet of Carlton was an implied
admission that these constituents of smoke were harmful. Mr. Hetsko
replied that publication of tar and nicotine figures was "a bridge they
had to cross". A.T. Co. had done it because publication of tar and
nicotine figures by Ruaders'lUigest, etc., had created a public.demand
for cigarettes low in those. A.T. Co. did not claim health advantages
for Carlton, and a disclaimer, such as Reynolds had on Tempo packets,
would probably bo printud on the packet when the Cigarette Advertising
Code came into effect. (Governor Moyner's remarks later to us on the
subject of disclaimers were inturesting).
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Mr. Hetsko also said that the A.T.Co. did not go along with
experiments that the U.S. Department of Agriculture was proposing that
might lead to m.dified cigarettes.
There was some difference of opinion among the lawyers as to whether
what TRC was doing in bio-assay research could actually be introduced in
evidence in a case aginst a U.S, manufacturer, under U.S. rules about
evidence.
it should be added that every onq of the six main U.S. cigarette manu-
facturers has been accused by his competitors of making implied admissions
Mr. Russell (Lorillard) aaid it would help considerably to offset
the implied admission involved in TRC's bio-assay progr-mmo, if TRC also
supported some research projects designed to answer the basic question;
"tioes smoking cause lung cancer?" '
To put these comments on TRC's research programme into perspective,
and/or implied health claims. Advertisements by B & PT for Life cigarettes,
on its re-introduction as a low tar and low nicotine cigarette five years
ago, were an implied admission. More recently, Lorillard issued a press
release that Kent's reduced phenols reduced the ciliastatic effect of
cigarette smoke. A.T.Co. have made implied admissions and implied health
claims by publishing tar and nicotine figures on the packets of Carlton
and Montclair. Mr. Cullman had quoted to Philip Morris stockholders the
beneficial effects of smoking described in the SGAC report, leaving '
uncertain how far he accepted the rest of the'report. Liggett & Myers
are considered to have made implied admissions and health claims for
Lark in the paper in The New Fnaland Journal of Medicine by Kensler and
Battista, and the subsequent local publicity and canvassing campaigns to
'exploit the statement about Lark made by Dr. 1fieser at the Press conference
on the Surgeon General's report. Reynolds so-called "disclaimer" on Tempo
packets is regarded as a major health claim by Mr. Crgmer, Mr. Harrington
and others. The Administrator of'fhe Cigaretto Advertisfrig Code also
criticised this disclaimer to us. Indeed, 'as Wr:-]`eaman'put it, a disclaimer
cannot purge a claim. Yle understand that all members of the Policy Committee
which prepared the Cigarette Advertising Code were dissatisfied with the
provision about health disclaimers in the Code but it was the best they
could do. Mr. Bowman Gray told us that, in addition to his competitors,
some of his own colleagues had objected to the disclaimer on the Tempo
packet.
Liggett & Myers have also contracted with A.D. Little in,the past to
carry out mouse skin painting experiments, and Bio-Research Inc, have carried
out a similar type of experiment for The Council for Tobacco Research - U.S.A.
Mr. Bowman Gray was reported as having said that if a cigarette smoke
could be developed whoso condensate did not cause skin cancer in mice, Reynolds
would adopt it. Mr. Finch said the same, though Mr. Yeaman expressed doubts.
. A
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