Abstract
This remarkable memorandum, written by lawyer Thomas Silfen of Philip Morris' law firm Arnold and Porter, comes about as close to soul-searching as a tobacco industry operative probably could. In the memo, Silfen muses about what can be done "to relieve the industry's long agony over health issues--to get the industry out of the 'it hasn't been proven' trap once and for all."
Silfen mulls over the utility of the "hasn't been proven" stance, but discloses its shortfalls when it comes to litigation and public health:
"In litigation, we have sought to defuse the issue by adopting the slightly softened risk factor position: i.e., there is a statistical association which could possibly be causal, but the evidence is still not conclusive. Out of court, and especially before Congress, that position will not suffice. When the issue is public health not scientific proof, admitting that tobacco is a 'risk' actually highlights the hard questions. How big is the risk: is it 20% proven or 40% proven or 55%"... Given that risk, how many people die from smoking: if not 350,000, is it 200,000 or 100,000" What would it take to convince us that it is proven; are we waiting until every doctor in the world agrees? And what are we going to do once we are finally convinced; will we stop selling the, product, as some company officials have said in the past?"
Despite this, Silfen argues against admitting causation, putting higher priority on the image and liability problems that would be caused if the industry admitted that cigarettes kill people. Silfen counsels that abandoning the industry's long-standing "case isn't proven" stance without a sizeable scientific event
"...would look bad in the public forum and, perhaps, in court as well. More importantly, admitting causation leaves the really significant public health questions unanswered: What do we do next? Do we stop selling cigarettes altogether or stop advertising or submit to FDA jurisdiction? We are right back on the spot, maybe worse off."
Silfen envies the model of the alcohol industry, since their product has similar problems. He says,
"Why do we tolerate alcohol sales and promotion, despite the attendant death, crime and
misery. Several elements seem to contribute. Everybody knows the danger of alcohol (or at least, we all assume that everybody knows). The alcohol manufacturers do not deny the negative aspects of their product and, in fact, counsel both moderation and adult use....as a matter of law, alcohol use is restricted to adults. Finally, we tried prohibition in this country and it was a miserable failure. That is the position we want for tobacco. Once a product is used only by fully informed, competent adults, all that remains (we would say) is prohibition."
However, Silfen recognizes a major difference from the "alcohol model":
"Cohen tells us that we have created an inconsistent information environment in which vulnerable smokers are able to disbelieve even the best known health warnings. This is, of course, a major difference from the 'alcohol model.' "
This is a fascinating look into the ruminations of an industry attorney who knows well the tobacco industry's track record for deception and who is left trying to find ways to get the industry out of the difficulties it created for itself by its history of denial.
Fields
- Notes
Thanks to Bert Hirshhorn for forwarding this document.
- Quotes
The purpose of an affirmative legislative program
should be to relieve the industry's long agony over
health issues. The only way to do that is to somehow
treat the causation issue -- to get the industry out of
the "it hasn't been proven" trap once and for all.
In litigation, we have sought to: defuse the issue
by adopting the slightly softened risk factor position:
i.e., there is a statistical association which could
possibly be causal, but the evidence is still not
conclusive. Out of court, and especially before
Congress, that position will not suffice. When the
issue is public health not scientific proof, admitting
that tobacco is a "risk" actually highlights the hard
questions. How big is the risk: is it 20% proven or
40% proven or 55% (as Som~ers said)? Given that risk,
how many people die from smoking: if not 350,000, is it
200,000 or i00,0007 What would it take to convince us
that it is proven; are we waiting until every doctor in
the world agrees? And what are we going to do once we In litigation, we have sought to: defuse the issue
by adopting the slightly softened risk factor position:
i.e., there is a statistical association which could
possibly be causal, but the evidence is still not
conclusive. Out of court, and especially before
Congress, that position will not suffice. When the
issue is public health not scientific proof, admitting
that tobacco is a "risk" actually highlights the hard
questions. How big is the risk: is it 20% proven or
40% proven or 55% (as Sommers said)? Given that risk,
how many people die from smoking: if not 350,000, is it
200,000 or 110,000? What would it take to convince us
that it is proven; are we waiting until every doctor in
the world agrees? And what are we going to do once we are finally convinced; will we stop selling the product,
as some company officials have said in the past?
How can we put these questions behind us? I do
not think that admitting causation is an answer. For
all the classic scientific reasons long asserted by the
industry, there still is not conclusive scientific
proof. Nor has there been a scientific "event" which
would explain our sudden abandonment of 30 years of
denials. We would look bad in the public forum and,
perhaps, in court as well. More importantly, admitting
causation leaves the really significant public health
questions unanswered: e.g., what do we do next? Do we
stop selling cigarettes altogether or stop advertising
or submit to FDA Jurisdiction? We are right back on the
spot, maybe worse off...
...We do have a relevant "model" in this country:
alcohol. Why do we tolerate alcohol sales and
promotion, despite the attendant death, crime and
misery. Several elements seem to contribute. Everybody
knows the danger of alcohol (or at least, we all assume
that everybody knows). The alcohol manufacturers do not
deny the negative aspects of their product and, in fact,
counsel both moderation and adult use. And, as a matter
of law, alcohol use is restricted to adults. Finally,
we tried prohibition in this country and it was a
miserable failure.
That is the position we want for tobacco. Once a
product is used only by fully informed, competent
adults, all that remains (we would say) is prohibition.
This puts our critics in the weakest possible position,
since nobody will admit to favoring prohibition...
- Company
- Philip Morris Cos., Inc.
- Author
- Silfen, Thomas E. (Attorney with Arnold & Porter ( PM's law firm))
Thomas E. Silfen worked for Arnold & Porter. (PMI's Introduction to Privilege Log and Glossary of Names, Estate of Burl Butler v. PMI, et al, April 19, 1996)
- Recipient
- Legislative Team
RegionCanada
United Kingdom
United States
Named Organization*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.
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.
United States Congress
United States Food and Drug Administration
TypeMemorandum
Named PersonCohen, J.
Holtzman, Alexander (PM Asst General Counsel. 1975-85.)
Wall, Charles R. (PM VP & Assoc. Gen. Counsel, c. 1994)Vice President and Associate General Counsel for Philip Morris 1994-94 (may have been longer; this info was gleaned from documents); formerly worked for Shook, Hardy and Bacon.
Subjectindustry strategy
public awareness
public relations
Document Images
Page 1: 2021157153
July 18, 1988
MEMORANDUM
TO:
FROM:
RE:
Legislative Team
Tom Silfen
Affirmative Leqislative Proqram
The purpose of an affirmative legislative program
should be to relieve the industry's long agony over
health issues. The only way to do that is to somehow
treat the causation issue -- to get the industry out of
the "it hasn't been proven" trap once and for at1.
In litigation, we have sought to: defuse the issue
by adopting the slightly softened risk factor position:
i.e., there is a statistical association which could
possibly be causal, but the evidence is still not
conclusive. Out of court, and especially before
Congress, that position will not suffice. When the
issue is public health not scientific proof, admitting
that tobacco is a "risk" actually highlights the hard
questions. How big is the risk: is it 20% proven or
40% proven or 55% (as Som~ers said)? Given that risk,
how many people die from smoking: if not 350,000, is it
200,000 or i00,0007 What would it take to convince us
that it is proven; are we waiting until every doctor in
the world agrees? And what are we going to do once we
Page 2: 2021157154
- 2 -
are finally convinced; will we stop selling the, product,
as some company officials have said in the past?
How can we put these questions behind us? I do
not think that admitting causation is an answer. For
all the classic scientific reasons long asserted by the
industry, there still is not conclusive scientific
proof. Nor has there been a scientific "event" which
would explain our sudden abandonment of 30 years of
denials. We would look bad in the public forum and,
perhaps, in court as well. More importantly, admitting
causation leaves the really significant public health
questions unanswered: ~.H., what do we do next? Do we
stop selling cigarettes altogether or stop advertising
or submit to FDA Jurisdiction? We are right back on the
spot, maybe worse off.
Once it is clear that causation is merely the
threshold issue, a possible solutlon begins to appear.
Can we skip over causation and go to what really counts?
Can we formulate a program that is appropriate assuminq
a public health risk? If we take affirmative steps that
satisfy our reasonable critics, can we then defuse the
causation issue?
We do have a relevant "model" in this country:
alcohol. Why do we tolerate alcohol sales and
promotion, despite the attendant death, crime and
misery. Several elements seem to contribute. Everybody
Page 3: 2021157155
- 3 -
knows the danger of alcohol (or at least, we all assume
that everybody knows). The alcohol manufacturers do not
deny the negative aspects of their product and, in fact,
counsel both moderation and adult use. And, as a matter
of law, alcohol use is restricted to adults. Finally,
we tried prohibition in this country and it was a
miserable failure.
That is the position we want for tobacco. Once a
product is used only by fully informed, competent
adults, all that remains (we would say) is prohibition.
This puts our critics in the weakest possible position,
since nobody will admit to favoring prohibition -- a
sound view in light of both the old alcohol experience
and the current horror of "illicit drugs." Going back
to our starting point, we would have gone around
causation. We would have done the "right thing"
assuming a real risk.
How do we get to such a position at this late
date? I see four major steps. First, a public position
that is based on full disclosure rather than denial;
second, legal restriction of tobacco to adults; third,
appropriate limitations on advertising and promotion;
and fourth, a research program consistent with our
refined public posture.
Page 4: 2021157156
- 4 -
I. ~LL DISCLOSURE
The industry has said for years that "everybody
knows." Our critics have never agreed and don't today.
The current issue in Congress is addiction. But, Joel
Cohen and the FTC point to many other widely
misperceived details, particularly the broad spectrum of
implicated diseases and the magnitude of the risk.
Further, they point out that the industry vigorousl@
denies every aspect of the health claims against
tobacco. Cohen tells us that we have created an
inconsistent information environment in which vulnerable
smokers are able to disbelieve even the best ~mown
health warnings. This is, of course, a major difference
from the "alcohol model."
In this regard, Alex Holtzman relates an
interesting story about the options considered by the
company when the 1964 Surgeon General's report first
appeared. One suggestion was that the industry embrace
the report -- not necessarily agree with it, but treat
it as important information which should be provided to
every smoker. Indeed, the company would undertake to
send a copy to any smoker who requested it. Alex also
points out that the UK has, from the start, gone down a
different road, more or less accepting the public health
warnings as part of life.
Page 5: 2021157157
- 5 -
Until recently, I would have thought it was too
late for us to get back to such a "moderate" position.
But the recent Canadian experience suggests otherwise.
Canada has now decreed a mandatory package insert,
presumably includlng a wide range of health information.
Why not endorse similar legislation in this country? It
gives us a chance, at last, to be good guys. Here is
what we would say:
The Surgeon General thinks that smoking is a
proven cause of certain diseases. We see scientific
issues still unresolved. Yet, we also see the
statistical association and the attendant risk factor.
One thing the Surgeon General and the tobacco industry
certainly agree on is that every smoker should know
everything there is to know about cigarettes. We have
believed over the years, and continue to believe today,
that Americans are better informed about smoking than
any other public issue. But, if there is any doubt on
that point -- as the recent bills concerning addiction
suggest -- we want to eliminate it forever. So let's go
the way Canada has gone. Let's detail the various
health claims and make sure every smoker "hears" them by
putting them right in the pack.
If it is true that everybody knows what has been
said about smoking, how can such action hurt us? If
Page 6: 2021157158
- 6 -
there are people out there who don't know, then the
proposed step is plainly "the right thing to do."
Obviously, there are risks. Who is going to
draft the language and what will it say? I think we
should stay out of the process. We should suggest that
the Surgeon General prepare for Congress a very brief
statement of the most pertinent information from his
various reports. As I see it, the more detailed, the
better for us and the public. One danger might be that
Congress would throw the task to the FDA. But, that
really doesn't make too much sense. It's the Surgeon
General who has done all the work in this area.
Besides, isn't it more logical that taking this step
would head off FDA jurisdiction, since it would
accomplish the principal non-prohibition aims of such a
move.
Having taken this step, do we continue to deny
the truth of the information in the package insert? I
think the answer is both yes and no. When asked by
Congress, we remain free to give the answer suggested
above: that is, we see real scientific issues, but
believe the key issue is full disclosure -- every
American should know everything that is being said about
smoking and health. We would add, as described more
fully below, that we will continue to sponsor research
into these issues, hoping to find useful answers. But,
Page 7: 2021157159
- 7 -
beyond that, I think we should go out of the public
relations business, at least with respect to health
issues.
Chuck Wall has suggested a new "Frank Statement"
which would redefine the industry's position. If a
package insert were mandated, that just might work. We
tell the public essentially what was suggested above
!.~., we think everybody ought to know everything about
smoking and health. In the meantime, we will continue
to do research hoping to find answers. Again, I don't
thlnkwe should make, in this new Frank Statement, any
denials. In this way, we slowly phase out of the
"denial" position, replacing it with a two-pronged
stance of "full disclosure" and "relevant research."
Will these steps alone silence our critics? I
think not. As noted, we want to put them in a position
where all they have left is prohibition. To get there,
we need to treat smoking by minors and advertising/
promotion.
II. ADULT USE
The bill now before Congress, as I understand it,
would impose a uniform 18-year-old age limit on smoking.
I'm told there are already 40 states with an 18-year
limit on sales, but only 10 that ban possession. Ten
states have a younger (16 years) limit. I think we
Page 8: 2021157160
- 8 -
should come out in favor of a federal 18-year limit on
possession.
The industry has, for years, taken the position
that smoking is an adult habit. Thus, the proposed
position would not be a departure at a11. The proper
focus, I think, is possession, because that makes clear
the authority of private enterprise and public
officials, particularly school boards, to bar smoking by
children. Vending machines present a practical problem.
We should agree to withdraw them, since effective
regulation is probably impossible. In the long term,
such steps will probably avoid even more stringent
restrictions (~.H., sales by licensed outlets only).
Unless there is someone willing to argue that 16
and 17 year-olds should be permitted to smoke, what
ground is there to oppose such action? A related
question remains: do we have to take restrictive steps
with respect to advertising in order to make this plan
work?
III. ADVERTISING AND PROMOTION
The bills presently before Congress range from a
total advertising ban to various restrictions calculated
to protect minors. Such restrictions would actually
exceed our alcohol "model." Given the other steps
outlined above (and the First Amendment implications),
Page 9: 2021157161
- 9 -
it might be possible to draw the line here. Still,
taking the long view, we should agree at least to the
bills aimed at protecting minors. We should stand ready
to stop public sampling practices, promotions at music
and sporting events, and advertising within prescribed
distances of "youth locations."
If we really want to silence the critics, we
could go still further. I think we should agree to take
the "images" out of advertising. That is what our
critics attack: the images of pretty, healthy, happy,
glamorous people. The industry has long responded that
advertisements don't initiate smoking, they simply
reinforce brand preference. We further point out that,
absent advertising, the public might have missed
substantial improvements, such as low tar and nicotine
cigarettes.
If this is true, why do we need the images? Why
not limit advertising to a representation of the brand
(the package) and an admonition to "smoke Marlboro." Of
course, tar and nicotine levels could still be stated,
as allowed by the FTC. And, to the extent that those
levels change, or other new innovations appeared, that
information could also be provided. All that would drop
out is the "images."
Page 10: 2021157162
- I0 -
IV. RESEARCH
At the time of the original Frank Statement, the
industry's great hope was that research would provide an
answer to all the causation questions. Either causation
would be disproven or the offending agent would be
identified and removed. Either way, the issue would be
concluded. This was the good faith and sincere basis
for the traditional "open controversy/it isn't proven"
position.
Our critics say that this position became warped
over time. Our research was intended, not to find an
answer, but to support the industry's denial position.
Worse, our real purpose was to provide public relations
ammunition. What we have suggested above is not a
change from the original Frank Statement, but a
reaffirmation of the original rightminded purpose.
As suggested, the vehicle for accomplishing all
this might be a new Frank Statement. It would come out
along with any new legislation. We would reassert (one
last time) our scientific doubts about causation, but
declare that the industry's real concern is now and
always has been full information for consenting adults.
Industry research, through CTR or otherwise (and
hopefully at higher monetary levels), would continue as
a means of gathering relevan~ information, but we would
no longer be waiting for some "event" which would end
