Anne Landman's Collection
Re: Jones/Day Liability Summary ("Corporate Activity Project")
Abstract
This report, found among the Brown & Williamson Bliley set of documents, is marked "Confidential Attorney Work Product, Attorney-Client Privileged," but is among those documents that the U.S. Supreme Court ruled were not protected by attorney-client privilege because of the crime-fraud exemption. Written by the industry law firm of Jones, Day, Reavis and Pogue, it is a remarkable and scathing analysis of the tobacco industry's precarious legal position and how it got into that position. The report anticipates likely plaintiff's arguments to be used against the industry, lists the documents and industry actions that support those arguments, and presents possible arguments against those accusations.
The report provides a road map of the lies and deceptions perpetrated by the tobacco industry through the years (and substantiates them by citing internal documents and a litany of industry activities that supported those lies). Despite all that, however, the Jones, Day report states up front that "The key defense strategy in smoking and health litigation is (and must be) to try the plaintiff." (Bates Page. 681879272)
Page 681879281 of the report focuses on the industry's failure to warn people of the harm their products cause:
"Although information dating to the 1930s was sufficient to put the tobacco companies on notice (and trigger both a duty to investigate and a duty to warn), evidence linking cigarette smoking and cancer clearly existed and was universally known in scientific circles during the period 1950-54. By the same time, credible evidence linking smoking with cardiovascular and nonmalignant pulmonary diseases emerged."
The document indicts the industry's research endeavors as well:
"Far from being independent, the activities of the CTR [Council for Tobacco Research] and SAB [Scientific Advisory Board] activites were monitored and controlled by industry representatives, including tobacco company lawyers and public relations consultants. Indeed, the lawyers stopped central nervous system reserach proposals, screen out 'dangerous project proposals', and funded 'special projects' designed for litigation purposes."
It continues,
"Although the industry funded a number of other 'outside' research projects, it did so only when it received clear advance assurances of a 'favorable' outcome. For example, Dr. Gary Huber, then of Harvard, solicited industry funds with his view that 'the number of people at potential risk from tobacco consumption is extremely small relative to the very large number of people who now smoke.' " (Page 20 of the report, or Bates Page 681879286)
The memo addresses the industry's failure to investigate, failure to design and/or market safer cigarettes, the overpromotion of cigarettes, addiction/ability to quit, "The Maintenance of the Deadly Delusion of The Open Controversy," appeals to youth, industry intimidation of the press, the issue of conspiracy, and much more.
This document could be an insurmountable obstacle for those who still maintain that the tobacco industry was in the dark for decades about the dangers of smoking.
Fields
- Notes
WARNING: This paper is over 460 pages long. We suggest you view it in increments of a maximum of 50 pages at a time to prevent your browser from crashing.
Produced by: B&W Issues: F-ATT, F-LIE, F-P-GOV, P-ENM, P-YTH, I-ANI, C-NIC Affected Defendants: RJR, CTR
- Quotes
Too numerous and important to list...please see document.
- Company
- Brown & Williamson
- Author
- Crist, Paul G. (RJR Attorney, Jones Day Reavis & Pogue)Defense
- Marple, William E.
- Kaczynski, Stephen J.
- Abrams, Thomas L.
- Marple, William E.
- Recipient
- Presumed recipient Brown & Williamson
- Region
- United States
- United States
- Type
- report
- Operation/Project
- Corporate Activity Project (Defensive project undertaken by industry attorneys)An anlysis by the industry law firm of Jones, Day, Reavis and Pogue of the industry's precarious legal position, legal strategies plaintiff's attorneys were liable to use against the industry in court, information supporting those accusations and possible arguments the industry could employ to defend itself.
- Subject
- legal activity
- legal concept
- Corporate strategy
- youth
- industry activity
- industry influence
- industry sponsored research
- industry strategy
- legal concept
- legal concept
Document Images
_ "[ _
"T
........................... senss! XD~aTdsuo3 "V
................................ uoI3ezIueS:0 3
................................ M:oM ~eq~n~ "Q
2. Design Defect: Cigarette Manufacturers
Have Failed to Design and/oc Market
• Safer Cigarettes ........................ 23
Specific Examples of "Safe:"
Cigarettes .........................
(1) Charcoal Filters .............
25
(2) Low Gas Cigarette - Fact ..... 27
(3) Palladium Cigarettes ......... 27
(4) Lower Tar and Nicotine
Cigarettes ................... 31
~rior tO 1966 and Then
Gave An Inadequate Warning .............
Marke£ing Defect: Overpromotion .......
.... :. ;.~.~:~. :-,. :.:~ ...... ~
'~'~ .... :=~!.'~"~.~'~~ a. The Magnitude o~ Cigarette ....
~ ~.~-:"~'.'k':~'~~;:7' : "~':"'~,:" ".;;'~':'"
"
b.
..
Z. punitive Damages Issues ..................... 3T
: . ..-
~a~les of Punitive Damages .....
Issues .................................
- ii
6~51579255 ~
A, Grant Clarke ...................
. The Kent
Deceptive Cooperation with the . ,
Surgeon General ................... 39
True Magazine ..................... 40
Criticism of Adverse Reports ...... 40
Influencing the Media ............. 41
Influencing the Insurance
Industry .......................... 41
CONSPIRACY ISSUES ................................
mo
d.
e.
f.
43
_ :The Maintenace of the Deadly Delusion of The
Open Controve[$y ............................. 43
.....
~ ~ Evidence and ~c~n~at~an~:;.,;::~::45
TIRCI~R and TI as Agents of Tobacco I
,:~::.:~ : Companies "" r:'45
"Open Controversy" Ads and ~ublic ...............
:.._,~..::~,~
Statements ~y TIRCI~ and TI 47
Industry "A~issions" Concerning the
.-.~
"Open Controversy" Position ....... 51
Reynolds Statements ............... 58
.
. ...~:,: . .
The PuDlic Issues Campaign of .....
Reynolds .......................... 60
"Moderation" as an A~ission ...... 60
Possible Industry Response ............. 60
- iii -
i04
Lorillard .........................
108
~d1~e r 1 C a,~ ..........................
' ~"~'~ .
, - _.: ~ '.:~.i~~.,
.... ': ' " ' :,:2. "':~C~'s Failure to ~nve~iq~te .... ..~'.~ "'~0":~~~~~~:~
-,:, ,. ::~:~ ~
. .......
.............. . ' ' " : . Suppo tln~ Evidence and Oocumen~a~tah .-~::': ......
112 ~"
1 TINC's Public and Private Aqendas ,.. 112
2. TIRC/CTN's Public Relations
~unction
............................ i17
3. TIRC/CTR°s Research Function ........
132
4. LS, Inc .............................
140
5. Lawyer Involvement ..................
141
a, Special Pcojects ...............
142
b, CNS Research ...................
144
Othec CTR Funded
P~ojects ..................
(4) LS, lnc ................... 173
Plaintiffs' Contentions .................. 173
Supporting Testimony and Documentation .-. 174
Poss£ble Industry Response to AMAIERF
Studzes ..................................
Othe~ Industry-Funded Research ...........
Plaintiffs' Contentions ..................
Supporting Testimony and Documentation ...
Possible Industry Response to Other
Research Projects ........................
182
183 ....
183
183
187
- vi
6~I~jD'gZ59
Challenges to the Efficacy of
Charcoal Pilfers
204
(c) Admissions that Charcoal Filters
were not Salter ................
210
Possible Industry Response - Charcoal Filters.. 214
(ii) Low Gas Cigarette - Pact ............ 214
(iii)
Palladium Cigarettes: The Development
of the "XA" Cigarette ............... 216
Possible Industry Response -.Palladium
' ~ , Cigarettes ....................................
242
.: .... : ..... ~oss~ble Industry Response - N~co~et~e Gu~ ....
~52 :"
~ : ~:,~ C:';: Warning Defect: Cigarette Manufacturers
" " ; '
, ':'~. Faile~ to Warn ~rior to Ig66 and Then Gave
' ' '
............ , .~:_~An Inadequate Warning .........................
253
.~ . Plaintiffs" Contentions .......................
253
Supporting Testimony and Documentation ........
254
Possible Industry Response ....................
261 '
-
-q
GL~ .......................... le~oua9 ul "e
........ uo~ua~nDo~ pue Xuo~sal Bu~q~oddns "
....................... suo~u~uoD ,s~u~e~a .-~, :
a. In General .......................... 291
~:.~:-~ :: ~
.......... " .... ~" ........... bT:'~ Heal~h Claims for Filte s ............
292 "
1964 to P~esent: The Modern Era ......... 293
Plainti~fs" Contentions ....................... 293
Supporting Evidence and Documentation ......... 294
Adoption of the Cigarette Advertising
Code ................................
294
Possible Industry Response .................... 300
Cigarette Advertising Code Issues ... 302
.~... ........ .._~.~Possible Industry Response ....................
309
b. Special Modern Era Advertising
Issues .............................. 305
(ii) Special Events ................... 307
(iii) Stadia Bill Boards ............. 307
(iv) Samplinq ....................... 308
,. ~...~ ~., ..
(i) Stadia Billboatd~ ...: .......... 209
(ii) Sampling .......................
Low Tat/Chart,s! Filte:s/Low Gas .....
Cigarettes ............................... 310
Plaintiffs" Contentions ....................... 310
._~O a. Charcoal Filter Cigarettes
.......... 31~
( i i ) Tempo ..........................
b. Low Gas Cigarettes ..................
(i) Fact ...........................
Possible Industry Response ....................
5. Cognitive DiSsonance .....................
Plaintiffs' Contentions .......................
315
320
Supporting Evidence and Documentation .........
321
~ a. Smokers as Conflicted ...............
• ~ ~ b Ads Resdering Warnin~ ~nadequate by
~"~ ~ ~ ~ ............ ~- sitionin ~be wa~nin Label
" '~': "~Z&.~~~ ....
i%~- ~"~ ~ d Label as Worn Out
327
..;~ ~, ~ ..... - . ................ :-,:
:E~:~/~:'6 " " A eals to Youth
, 327 ; ~%~i~ " ..... :.c .....
• ~.:,;.. - ...... Plazntx~£s Con~entxon .......................
~:~:;~.7~;:~ ~ Suo~o~tin~ Evidence and Documentation .........
:.';.~~: " Possible Industry Response ....................
- X -
• ;~,,,, Plain~i£fs" Contentions ....................... 335
"" .a. Definition of Addiction-. ............
337
b. Corporate Responsiveness:
• Addiction ...........................
341
Supporting Testimony and Documents ............
342
a. Liggett ............................. 342
b. Reynolds ............................
343
c. Philip Morris .......................
354
d. Lorillard ...........................
355
e. American ............................
356
Tobacco Institute 359
.:: ~ ~i);~: ; ,-~5~a., ,i Definition ef Addiction ..... ..~,....
• ': b. Dependency/Ability to Quit ..........
..... ""=' ~'IA~~'"C. Addiction: A Self-Fulfilling ....
-" ' ~, ~"'~ " Prophesy
" VII. ~ PUNITIVE D~GE ISSUES ...........................
A. A." G=ant Clark ................................
....... " .... Plaintiffs' Contentions .... • ....................
378 '
Supportin~ Testimony and Documentation ........ 378
Possible Industry Responses ................... 384
Plaintiffs' Contentions ....................... 387
Supporting Testimony and Documentation ........ 387
Possible Industry Responses ................... 393
D. True Magazine ................................. 394
Plaintiffs' Contentions .......................
Supporting Testimony and Documentation ........ 395
Possible Industry Responses ...................
u~scree~t~ng o. the Auerbach "Smok~n~ ~eagles
~pe [im~n~ ....................................
Plaintiffs' Contentions .......................
':~'~Supporting Testimony and Docu~ntations .......
...... ._~. ...... Possible ~nuus~ ~o~,a~s .. ..................
422
........ ~ ~ ....... ~~ ....................
~. ............................... ~_.~ ~ .~.
. F. Other Efforts to Discredit Prominent Smoking
~,-., •
~ . ; and Health C~itics ............................
425
Plaintiffs" Contentions/Supporting
• Testimony and Documentation .............. .....
425 ....................
Possible IndusZry Response .................... 425
- xii -
• :Supporting ~estimon~ and Oo~xlmenCation";.:'.
" " . " : " Correspondence ....
b. ~nfocmaCional Meetings and
Correspondence ......................
c. Intimidating the Press ............. .
Possible Industry Responses ...................
H. ImpEoper Pressure on the Insurance Industry ...
Plaintiffs" Contentions .......................
Supporting Testimony and Documentation ........
436
438
438
440
447
Possible Industry Responses ...................
- x[ii -
A. T~e Purpose of the Corporate ~ctivity Project
The purpose Of the Corpogate Activity Project was to
analyze plaintiffs' ~heories (particularly in New Jecsey)
~er~aining to "cot~o{ate misconduct''issuesahd the evidence
In addition to f:aming the specific issues of fact
.w~ach ~he defense ~st ~ a are, ~h~s ~andum
evidence. Addicion~l factual and s~ra~e~ic development on
possible industry responses is critical.
B. Sources of Information
In prepa:ing this memorandum, we have relied on
which plaintiffs' counsel can be expected to present in support
of those theories. Ou: discussion of plaintiffs' "misconduct"
contentions is no___~t intended to be objective; rather it is
intended to present a worst case analysis colored with the
adverse conclusions and infe[ences which plaintiffs can be
expected to make.±` The Corporate ACtivity Team, therefore,
made no attempt to be diplomatic or to generously characterize
various issues.
certain categories of information:
Occasionally, case law is cited, but only to place the
plaintiffs' contentions in context not to definitively
analyze the applicable law.
or aI1 defendants in the New Jerse7 litigation.
4. Documents produced by Reynolds in Ba~ne_~s which
have been selected by plaintiffs,l"
5. Principal pleadings in the New Jersey cases.
6. Materials obtained by plaintiffs (and the
industry) pursuant to FOIA ~eguests, through subpoenas on third
2. Exhibits to such depositions.
3. Approximately 900 documents specifically referred
to in two sets .of interrogatories served by plaintiffs on some
parties, or from the National Archives.
7. Public statements made by plaintif[s' counsel, and
I:~ likely plaintiffs' experts and advisors (e._~, Daynard,
When this Project began, very little Of this
accumulated over a period of several months. While additional
discovery information is available, enough evidence and
Reynolds is continuing to produce and the plaintiffs are
continuing to select documents in the Barnes production. ..............
Discovery is continuing in Other cases as well,
Evaluation of plaintiffs' evidence should be a continuing
process.
651579268
z ~ /, .polZing and other public awa~eness issues, but does not attem
" ~'~::: :to dupl~cate the ark being undertaken by STIC,
D. Further Work
-"'- :
Obviously much more can be don~. with respect
.........
possible indus~[y responses, ~h¢ collective knowledge, ......
analysis, and judgment of the entire Reynolds" defense team
.~,~i:~[~hould ~e solicited and incorporated. In addition, we should
p~oposed approaches to "corporate misconduct" issues, and their
guidance. Because the case being developed Dy plaintiffs
much 5t:onge[ than those presented in previous mock trials,
organized into ~ive broad sections, with principal subdivisions
as indicated: ,
Conspiracy Issues.
A. The Maintenance of the Deadly Delusion of
the Open Controversy.
B. The "Gentlemen's Agreement'.
Corporate Awareness and Responsiveness to the
Smoking and Health Controversy.
S~rict Liability/Neg!i~ence Issues.
discussion in one section has direcz applica~i!ity in othe=s.
Thus, for example, evidence about warnings has d:~ect bearing
---
'~,~ZI.'; SU~RY AND OVERVIEW .~ '
;
The key defense strategy in smoking and health .
litigation is (and must be) to try the plaintif~.
have been conducted to date. It is cleal, however, that the
defense will not enjoy a simila~ luxury in ~he New Jersey and
Texas litigation.
This sugary is intende~ to be a synopsis of the
theories which plaintiffs have espoused and the evidence which
they have adduced, or may in the ~uture adduce. The main
@ortion of this memorandum treats each of these issues mo:e
' Allega~ions of a civil conspi~a~ have been made
both the Ne~ Je:sey and Texas litigation. Proof of this
allegation requires ~laintiffs to prove an agreement, express
or tacit, among the ~e{endants, and some act or acts codified
~by .....one oc more of the defendants is ~ucthetance of the
--
Conversely,
one should expect that a key plaintiff~" strategy would be to
.try. the co~o~e de~endan~s. "Co~po~a~e misconduct" issues,
ho~eve~, ~efe no~ liti~ated in either ~ o~ Galb~i~h, and
have received only modest attention in the mock t~ials which
conspiracy, which acts are themselves torts, or are performed
in pursuance of a tortious objective, w. Prosser, The Law of
Tort_____.~s 292-93 (4th ed. igTl).
financial self-interest and with disregard for the health and
to the detriment of the particular plaintiff, to "reinforce"
the smoker in his or her smoking habit.
example, the complaint in Barnes alleges that:
6815 ,-"92"7~
company the statements and publications of TI and TI
representatives, some of which ale, conservatively speaking,
.
-~.;~.sta~ements a~e circulated to the tobacco company executives ~~
made with respec~ to TIRC/CTR. Without attempting to
specifically identify every fac~ which suppo~s the con~encio~.~ ,:,~ i~ ....
~.;, •
plaintiffs" evidence leads to the conclusion that plaintifZs '~ "."
can establish the agency contention.
In January 1954 the industry announced the "Open
Question" position in "A Frank Statement to Cigarette
6<51579274
lung cancel in animals Or human beings.
d. The industry believes that cigarettes are not
injurious to health.
The indust~y's public statements no longe~ contain the
fou[th element, but indust[y witnesses include this element in
thei[ depositions. Otherwise the "Open Question" posit~on has
O
example, a ig67 document prepa[ed by J. S. Dowdell (RJRT)
acknowledged that "the industry has little, if any, positive
.... - ' evidence" to refute health charges. To a similar effect, is a -~-~i ~:~'=-- .....
..........................
1962 letter from W. S. Crutchens (B&w) to Bowman Gray (RJRT).
Of greater concern is a 1968 memorandum, in which William
Kloepfe~ (TI) concedes:
2. Our basic position in the cigare~.t_m
controversy is subjeC~ tO the charge, and
---
i . -.~:~, . ....... .~AE~.o...t,~ey Work P=oduct , 5,
,.~, ~
............. .... ~ .... , ~ '
. . . . :~ ~, , " ,' ; . ~. ~~~
Fi~S~ the industry agree~ not to conduct smoking :and health
" ':.~'~
Second, tbe~ agree~ ~o share w~tb each othe~ an~ ~mo~ng and
..
health breakthroughs.
The testimony of variou~ witnesses is consistent with
the fi{s~ prong o~ the Gentlemen's Agreemen~ Thu~ the
testimony of the industry witnesses is that smoking and health
research was not conducted in-house but was left to TIRC.
one of the reasons fo~ this was to avoid one company developing
a competitive advantage based on health, it supports the
existence o{ an agreement, To date, the most common reasons
articulate~ for avoidin9 in-house research are tha~ in-house
research results would lack cre~ibilc~y, and that t~e companies
is the ~rovision requiring t~e~sharing of smok~an~he~[~h::'::
breakthroughs. This provision erected an economic disincentive
~o~ ~ndmvfdual companies ~o ~u~ue "saIe:" czga:et:e research,
.
Why would a company invest the millions of dol~ars nece~sa:y to
~ .:.~, ::..--:
~,~-..:~&~,~develop a "safer" cigarette that would give it no competitive
.~- ~ ..
advantage in the marketplace? Conversely avoidance of "safer"
cigarette research served to protect the market fo~ the
conventional cigarette
6 ~, 1%'7D27"7
'~~one~'.~:~ay.Reav~s" gPogue Dr"~~'~
'~,,~. ¢ ~~~eg~;~C':: S. Co~po=ate ~wa~ene~s And Responsiveness
.....
~ c :~;,'~[~' .:~:'.:.' Univecsal awareness and personal
ce~pon~ibilitg are
" .. ,twin themes of the defense sttategz. In depositions, in briefs",.~ .,-. ....
..
and at trial, the defense has made these points forcefully and
with considerable impact.
We expect these issues to continue
to be a centerpiece of the defense.
4. Horriqan Dewey Depo. az 16.
" ~'x~:~r~:' tControVe~Sy" position is ~ounded on ~gno~ance.
while executives need not be
the complex ~ub}ect~ at i~sue, those employee~ ~uch '
research:d~recto~s, w~th greater knowledge and abil~y to
evaluate the evidenc~ have not al~a~s l~lled the b~each.
exa~)le ~llia~ Bates (~ggett) ans~e:ed "I don't kn~-" o: "I
don't ~ecall" over 210 times in a 2BS-~age deposition,k"
Moreover, when asked about available evidence linking
smoking and lung cancer, even "knowledgeable" industry
deponents typically roll out stock answers:
• Statistical association does mean causation.
• The induction of malignant tumors in skin
'
painting tests is irrelevant to the human
.
smoking experience.
"~
~medical associatian, every volunta~ ~ea~th
industry has gailed to employ personnel in the disciplines most .. ....
-
intimately involved in smoking and health issues. Thus. " "
These types of responses give the impression that the
facts, if remembered, would be adverse. These denials
are arguably a type of "spoilation" evidence whose
primary value to the ~lain%iffs is in darkening the
atmosphere of the tobacco defendants" case. Sere
McCormick on Evidence at 809 (]d ed. 1984).
ever employed aphysici~nto evaluate the smoking and healEl~~
literature. Similarly. based on the evidence of record,
neither epidemiologists nor biostatisticians have been employed.
2 Co=poIate Responsiveness
In addition to the foregoing, plaintiffs will a:gue
that the companies have done woefully little to discharge their
du~y to investigate the heal~h consequences of cigarette
smoking. Thus, virtually evegy industry witness has vigorously
denied thac his employer conducted smoking and health research
in-house. When challenged co explain how this duty was
discharged industry witnesses have mechanically pointed to
~R. invoking its "independence" in the same breath. As
discussed below, however, CTR's history is far f:om unblemished ....
an~ ~Cs ~esearch efforts hsve ~om ~ime to t~e drawn harsh ~_,._.,_.
wi:nesse~ are f~equently as unfamzlla: w~th CTR £unded rese~h~
a. Individual Companies" Failure :o Investigate
•
Although information dating Co the 1930s was
. , -~,-.
Sufficient tO put the tobacco companies on notice (and trigger
,.~ .~. ~., ~
both a duty to investigate and a duty tO warn), evidence
linking ~arette smoking and cancer clearly existed and was
univers~lly known in scientific circles durin~ the period
1950-54. By th~ s~me time, credible evidence linking smoking
- 15 -
"~ ........ ........
. ,i;.:~/~:~:i Despite the focegoinq, the recocd is replete with
~:' i~ ~'~
...... admissions that the tobacco companies failed to investigate the
.,.~. allegation that cigarette smoking.adversely affects health.
" ' Industry witnesses have consistently denied that thei~
employe~s conducted in-house smoking and health research. They
• have a~sc ~enied that the companies employed epidem~ologists,
medical doctors, or others specfally suited by training and
experience to investigate the health charges. The
will thus contend that the conclusion is inescapable that the
companies did not take the first step in p~otecting the public
~" ~ from a dangerous p~oduct -- they did not adequately investigate
the c~ediDle health allegations ~gainst smoking.
..
'~ " In faC~ however, virtu~IIy every company has
proprietary =ese~rch,~,which ih a broad sense c~n~be
~ r
• '~r:~ ~ characterized as smoking and hea~th research: Liggett,
:. Reynolds, Philip Morris and ~erican did constituent analyses
~"~.~~.':
..... ~:~ .... (as others undoubtedly did as wall) Similarly, Liggett
: ~:-
"~'~~"oUtside entities) conducted skin-pa~nt~nq studies. Inhalation .....
~,~
: " studies were conducted under contract by Liggett and Philip
Morris. and a modest amount was conducted by Reynolds.
•
Broadly speaking, this fesearch tended eithe~ to
support the contention tha~ ciga~et:e smoking causes adverse
- 16-
LI -
"H
~~;4~, '~.~. ' ' ' ' ..... "~'~ ~.~Jones, Day, Re~vis
'& Pogue~D~af~
"independent" research.
At lea~t that's ~hat the tobacco companies say. "~,~
~act, TIRC's m~ss~on was mo~e aptly descc~bed ~n 1954 by ~he
first SAB Chairman, Dr. Clarence Cook L~ttle: "[T]o bu~Id
foundation of ~esea~ch sufficiently strong to a~est continuing
o~ (u~u~e attacks" on tobacco. Moreover, one o~ TIRC's
principal activities from 1954 to 1958 and thereafter was as a
public relations vehicle for the tobacco industry in
interviews, speeches, and testimony ~efore Congress. the FTC,
and in court.
Nor can the activities of TIRC/CTR be fairly
characterized as funding independent research into smoking and
health issues As Dr Little confirmed in 1960 at the La:~i~ue
The faitu~e to support relevant research is no~
. .~.~ .-~.~
surprising. SAB meters were not onl~ paid by the tobacco
companies, but they (or the institutions with which they were ~ -!-:-L~=~:~ -
associated) were principal beneficiaries of CTR research
..
giants- In addition, far from being independent, CTR and SAB
.......
activities were monitored and controlled by industry ........... .
~epresentatives, including tobacco company la~ers and public
the final report of the AMA/ERF.
to the industry would be discovered.
- 20-
'I
~seeI ~e seM ~3e~o~d ~q~ sa~3pu! puou~ueH -~ pue 6uII~m:S "~
The "~sks" of smoking a~e well documented, we
expect to see plaintiffs parading evidence that cigarette
smoking causes 350.000 (or more) p~emaCure deaths per year
, ~,~,~.
- ,.~ .... ,~.~..~ ~.~
the United States alone, that morbidity is exceedingly h~gh, ~'~ '~/~':
and 6hat. the societal cost (in terms o~ medical'care "lostw0~~~~ ......
.... .
~a~s, etc.) approaches ~6~ billion pet yea~. ~ven ~i~hout ~~
ex~e~ ~itnesses, plaintiffs ma~ be able to ~uce this
~vi~nce through governmental ~o~ts a~mitted un~e~
803(8)
T~e "benefits" of ~moking are far less well
ducu~e~ed, a~d apa~ f~o~ anecduta2 cc~e~cs in the
Rep~t of the Advisory Cc~in~ee ~o the Surgeon Gene:ai, are
rarely, if ever, found in governmental reports. N~ have the
~articulating the benefits of s~kin~. ~' ~
~;~ ~ ;~
disease, cigarettes should not be markete~. Fo~: instance, .
Cu[t~ ~udge, ~he P~e~en~ o~ Lo~[a~d and ~otm~
c~ga[e~te smokkng cause~ ~anc~, c~gatettes shou~ not be r~'~
his emplo~ent. Gerald Long (RJRT) s~ated in a recen~
interview:
- 22 -
6 ~ 1
the basic characte[istics that smokers desire?
- 23-
no c~garette has been found "unsafe" and. hencei'it c~oesn'~
make sense ~o talk in terms of "safer" cigarettes. Further,
product modifications have generally been descTibed as being
developed in response to perceived Or actual consumer demand.
. .~. ..
-While filtration and the development of low tar and ....
~.;~ ...........
nicotine cigarettes might properly be characterized as efforts
: '., ..
to respond to consumer demand, the same is not necessarily true
:
of efforts at selective filtration. It is unlikely that ......
evidence can be adduced that consumers were clamorinq for a
---
' ~ The 1964 Report to the Surgeon General conta~ned an
c~lia of the trachea and lungs and the benefits of the Ligqet~
fil~e~. This zefe~ence was based on mate~ia~ furnished to the
Advisory Co~ittee by Liggett. Liggett i~ed~ately contacted
medical doctors to bting the 1964 Report's reference to their
attention. Liggett did no~ advise the ~er~can me, ira!
co,unity that the Surgeon General's reference cited research
conducted by Liggett and ADL. Ligget~ also attempted to
promote the heal~h benefits of Lack by planting an~ exploiting
third pa~ty "endorsements" of charcoal filters. Third party
endorsements we:e n~eded because the FTC prohiDi~ed "health
c~aim$" ~g the tobacco companies in their ads.
:~ • ~ D~. Norman at Li~ge~. however, expressed doubts abou~
considered ~0 cause detrimen~a! physiological effects in
than conventional filters any of ~he components of the
=.Particulate ......... phase of smoke suspected as causing lung cancer.
Liggett did not caution users of its product that iZs own
researcher doub~ed the health claims made on behal~ of Lark.
.................. -
F!il ' !.i ~ [:
- 26-
~act initially f~iled in test ma=ket$, an advertising agency
'~"~ ~."
~~~evelo~ed a campaign ~0 educate the Fubl~c a~out ~he health ......
hazards of carbon monoxide. S&w te:med this campaign
"appalling. and decided not to market F~c~. It chose instead
to wait "until the problem o~ gas becomes public knowledge
through gove~nmen~ investigation or media coverage."
Apparently. B&W was worried that identifying ca:bon monoxide
a health hazard would constitute an admission that conventional.
cigarettes were hazardous. An inference that may be argued is
that B&w failed to marke~ Fact to protect other brands at the
The o~her "safer" cigarette developee bu~ not m~keted
ca:c~nogenfc e(~ect o{ cfgarette smoke condensate ('CSC'} on
, :.
cite~ as a state of the art" cigarette and, thus will be
.T , :
argued to be the relevant standard against which to measure the
conduc: of any tobacco company
- 27
6~157929~
---
'~.v~:L ~ .... ~L~-~:.~x sets o~ mice -- one set with,tumors' on their backsand the ,,~
~
other tumor free. However. Liggett faced three major hurdles..,:
in marketing its palladium ciga,ette.
First, the FTC prohibited "health claims" in ads. I~T~
an attempt to obtain some relief ~rom this"~r~hibition.'
assistant to P~esident Car~e~'s health advisor. This meeting ......
"~;' '"<
backfired. The President's advisors did not intercede to ....
~ "
facilitate the marketing of the XA cigarette. Instead, they
contacted the Tobacco Institute, which in turn informed the
other tobacco companies of Liggett's efforts,z~
Second, at leas~ one of the other tobacco companies,
Philip Morris, allegedly threatened to do everything in its
~: I.~ower to prevent the marketing of the new cigarette because
~'-.o~Zd h~-ve threatened PM'$ :~igh selli.~ convent~a!
ad
the o:her companies had no way of competing with the
cigarette PM threatened not only to enfo:ce the ban on healt
Liggett also made unsuccessful attempts to market the
palladium cigarette in £urope. Thzs strategy was an
attempt to create a demand ~0 ma[ke~ i~ in t~e U.$.
claims but also to exercise other influence on Liggett
Third, the la~e~s ~ep~esenting Liggett inflicted the
final blow. Erom the iscep~ion of Liggett"s~ "safer" ciqarette
project, the company required one of its lawyeIs to be present
testified that the ultimate decision was always made by the ~~,~
~he palladium cigarette would result in lawsuits h~ought
based on the implied a~mission that conventional
---
'6
-paq~(q~sa eq o~ uo~oauuoo .
s~ e~eq~ e~eqM -s~npo~d eq~ ~o ash q~3~ pe^~o^u~ ~p~EZE~~ '
cases, the tobacco companies bear the burden o£ proving that
the scientific and medical information was not reasonably
availabZe or obtainable and that ~ey, thereEore, Yacked actuaZ
or constructive kno~edqe o~ the de~ec~.=¢he tobacco co~
Dea~ this burden because they are experts, they are expected to
perform testing, and they are in a superior position to know
the scientific and medical evidence, Feldman v, Lederle
Laboratories, Inc., 479 A.2d 374 (N.J. Ig84).
It i~ undisputed that, prior to 1966, the tobacco
companies provided n_~o warning to consumers of the adverse
health consequences of smoking which were known or should have
been known to the companies, Indeed, the tobacco companies
< ~.... ~hey were required to do so by fede,'al law:. Since:then
0
tobacco companies have consistently ~esisted every effort to • :, ~;~:,.,,,~
provide consumers ~dditional information about the hazards of ......
"~L,: .......
smoking.
. ,"~';,i~ ;~ ,,
...... As of October 12, 1985, the companies began the use o~~~ .......
rotating warnings, as r~quired by 15 U.S.C. § 1333. This ~s : "-./ .
the first time, however, that warning of any specific disease
has ever been given by them. ~ven now, however, the indust:y
consistently denies the proof supporting the causations which
6,.% 1 ~'79Z99
preempted ty Cioe
.... '~- plaintiffs" conduct (as opposed to the unreasonableness of
defendants" conduct), and thus remains relevant to the issue o~
comparative negligence.
allowed, overpromotion evidence w~ll be linked with
"addiction." Plaintiffs will argue that pro-smoking and "open
controversy" messages were intended to and did dwa=f in number
the United States Currently. the tobacco companies sp~d
:... about $2 billion per year =o advertise their products. The
............... industry has defended this massive expenditure before Congress
as necessary to entice current smokers to switch brands.
Industry opponents effectively counter that only one percent of
smokers-switch brands eac~ yea~ ............. ......
- 35 -
- 9E-
British American Tobacco Company sponsored conference in
• /,. ...... attended by PM and B&w representatives. One of the findings of
that conference was: "Serious smokers smoke to prevent ~:
withdrawal symptoms." Anothe[ study which Dr. Piehl (RJRT)
cites ~ecognizes -addictive" smokers: "People who find it
unbearable to run out of cigarettes are described as using
addictive-type smoking." The industry has also recognized that:
some smokers, especially smokers of high nicotine cigarettes
"compensate" or [egula:e nicotine intake if it is lowered in
individual cigarettes.
~]amages are merely incident to a claim for relief and can
never, standing alone, constitute the basis for a claim.
- 37 o
- 6Z -
~!do3so~ q~!~ s:eXo~s ~3~o~d o~ asuadx~ e~xa aq~ o~ 5u~ob
"J~[Tj ~UOJ~TN ~Ua~ aql q
aBa13A!J~ ~u~ID-X~U~O~v
~npo~ M~OM Xau~o~v
le~u~p!~uoD
Confidential
Attorney Work Product
Attorney-Client Privilege
Jones, Day. Reavis & Pogue Draft
d. True Magazine.
Frustrated by the steady drumbeat of sc:entific
revelations adverse to smoking, the industry covertly sponsored
an article which advanced its "open question" position. It
paid a sportswriter, who later was hired by one of its public
relations flrms, to write the article, which was then published
in Truce magazine. The industry later reprinted and distributed
the article to doctors, educators, and other opinion leaders,
without attributing the industry as its source. A revised
version of the article was published under an alias, in the
Nationa" Enquirer. I~ was only through the diligent
invest~gatiDns of tee Wall Street Journal and tee FTC that this
acz:vity was brought to light.
e. Criticism o~ Adverse Re~orts.
From wynder-Gtaham to Auerbach to the present, ever____..y_v
report linking smoking with disease has been criticized by the
totaccc industry.
Perhaps the most intensive of these was the effort to
discredit the AuerDach "Smoking Beagles" experiment. One of
the moss important gaps underlying the "Open Question" position
is that efforts to induce human-~ype lung cancer through
inhalation of fresh, whole tobacco smoke Dy la~cza~ory animals
have consistently fa:led. In 1970, however, the ACt announced
with grea't public fanfare D~. Oscar Auerbacn°s s~udy which
sn~ed that human-type cancers had been induced in the lungs cf
Confidential
Attorney Work Product
Attorney-Client Privilege
Jones, Day, Reavis & Pogue Draft
"smoking beagles." The industry has (reguently called the
experlment "one of the great Scientific hoaxes of our time" and
continues to this day to repeat the charge that the ACS refused
to permit independent pathqlogists to examine the pathology
slides, In fact, Dr. Aue[bach offered to make the original
pathology slides available to Dr. Sheldon Sommers, the head of
CTR.
f. Influencing the Media.
Through a studied investment of its advertising
dc!!ars, the industry Doth coerced the print media to avoid
coverage of anti-smoking szories and enlisted the media's
support in opposition to proposed restrictions on prinz
advertis:ng,
g. Influencin~ the Insurance Industry.
In recognition of the actuarial differences between
smokers and non-smokers, many insurance companies began to
offer non-smoker discount rares on life insurance policies,
Fearing the financial detrimen% to the industry of the adoption
by insureds of a healthier, smoke-free lifestyle, ~he tobacco
lo~y SOUgh[ to ~ntimidate insurance companies to withdraw such
policies f~om the market.
6 h I ~7.~307
PRIVILEGED AND CONFIDENTIAL -- Produced as required by the Coud's March 7, 1998 Older in
Tt~e State of M~nesota, et al v Phlhp Morris, et al Court File No. C1-94-8565 Its use ~s subjecl Io
the Protective Older in thai case
Con~en~xa~
Attorney Wor~
A~o~ney-Ci~enC 2r~vilege
J~neso Day~ ~eav~s & Pog~e
liI. CONSPrRACY ISSUES
Allegations of a civil conspiracy have been made in
both the New Jersey and Texas l~tigation. Proof of this
allegation requires plaintiffs to prove an agreement, express
o[ tacit, among the defendants, and some act or acts co~itted
by one or more of the defendants is furtherance of the
conspiracy, which acts are themselves torts, o: are performed
in ~ursuance of a tortuous ob]ective, w. ProsSero T~ Law of
Torts 292-9] (4th ed. 1971).
A. The Maintenance of the Deadly Delusion
of The Ooen Controversy
Plaintiffs" Cnntentions
In the tobacco l~tigat~on, plaintiffs have essentially
asserted that the defendants have conspired to propagate "the
deadly delusion of an "open question'' concerning the issue of
cigarette smoking and health. (STIC Witness Book, Intro. at
i). ~or example, the complaint in Barnes alleges that:
The defendants, individually and as
members of the tobacco industry, conspired to
misrepresent and, through thei~ conce~ted
action, misrepresented to users of cigarettes,
and failed to warn users of cigarettes of the
dependency induced by cigarette use and adverse
~ealth consequences of cigarette use.
Complaint, Count Six, ¶[ 2. Other ~llegations assert that the
industry combined to deprive the public of certain scientific
data, Count Seven, I{ 2, and through advertising, to represent
c~a[ette smoking as safe. Counz Eight, ¶l ].
Confidential
Attorney Work P£oduct
Attorney-Client Privilege
Jones, Day, Reavis& Pogue
Pla~n~i6~s will contend that the fact that smoking
causes lung cance~ and other diseases has long bee~ accepted by
the Wc~Id Health Organization. the Royal College of Physicians
and Su[gecns, the Surgeon General of the United States, the
National Institutes of Health, the American Medical
Association, every state medical associatcon in the country,
and eve:y voluntary hea:=h o=ganization.
"Incredcbly," the defendants deny this fact.'--~"
Ignoring a mountain of evidence, the cigarette manufacturers
merely incant that "it has nc~ been scientifically established
tha~ cigarette smoking causes lung cancer or any other human
disease." They publicly refe= to it as an "open ccnnroversy.
Why? They want to discourage smokers from trying t~ give up
th~s lethal product; they bore that new smokers will embrace
this form of slow death; and they want to be able to escape
financial responsibility to those who are the victims of thi~
defective and unreasonab!y dangerous ~roduc=. In short, ~he
tobacco industry is perpetrating a ~raud of unparalleled
proportions On the consuming public: the "open controversy" is
in~ended ~o reassure smokers to ignore or d~scoun: the
undisputed fact tha~ cigarette smoking kills ~50,OO0 A~ericans
every year.
Frese:zat:o~ o: A~an Da:ne~! to Midd:esex C:y. Tria~
Lawyers Ass'n, May 30, 1984.
44 -
Confidential
A~otney Work Product
A~toCney-Client Privilege
Jones, Day, Reavis 6 Poque D~aft
Plaintiff5 wil~ a~que tha~ the mere statemen~ Of the
industry's position shows how preposterous it is. More
significantly they will present evidence inconsistent with the
"open controversy" position from defendants' own documents and
witnesses. Finally. almost all of the activities discussed
throughout this Report can arguably be fit under the rubric of
acts taken in furtherance of a civil conspiracy to suppress,
omit, or misrepresent smeking and health information. Each
statement or occurrence, standing alone, can be explained, but
when the statements and occurrences are stacked seriatim, the
combined effect is subszantial. Therefore, the industry
~es~nse must consider the to~a! effec~ of these acticlZieso
SuDoo:~in~ Evidence and Documentation
a. TIRC/CTR and TI as Aoents o~ Tobacco Comoanies
An extensive effort was made during the depositions of
~hose industry ezecu~ives who had served on the governing
bodies of T!RC/CTR and TI to detail the structures and
procedures o6 those entities. Plaintiffs have scugn: to
establish that T1 is the exclusive lobbyin~ a:: ef the
individual companies;""" chat TIRC/CTR's and TI's posi:ions
Dey Palmer Depo. a~ 162; Dey Cipollone Depo, a: 135.
A/nerican was a memDe: of TI from 195~ until the
mid-1960's, although it continued to pa:t~clpa:e in
certain ac:ivlties (including those of ~he Com~unicaticns
-45 -
Confidential
Attorney Work Product
Attotney-Client Privilege
Jones, Day, Reavis & Pogue D~aft
on smoking and health are identical to that of the
companies;z-L" that no statements of TIRC/CTR o: TI spokesmen
Or their publications are issued without the companies"
approval;''' and that TI~C/CTR and TI evaluate smoking and
health literature for the companies.!-~'"
This effort is designed not only to strengthen the
"conspi:ato:ial" look of the industry, bu~ also to enable
plaintiffs to impute to each company the statements and
publications of TIRC/CTR and TI representatives, some of which
are, conse:vatively speaking, imprudent and impolitic. No
member company of these organizations has ever disassociated
itself from their Statements. Almost all their statements are
circulated to ~he tobacco company executives in advance.
W~hou~ attempting to specifically identify every face
which supports the contention that TIRC/CTR and TI are the
II
iI
13
14.
Footnote Continued F~om Previous Page
Commit:ee) as a con=:ibu~ing nonmembe:. Heimann Roce~s
De~o. [: at 120. It withdrew because ~f antitrust
concerns (id.) and because T~ was not effectively
communicating the Industry's position on smoking and
health. Id. at 131.
bey Ciool!one Depo. at 276.
Judge Depo. at 351, 3B7; Horrigan Dewe~ Depo. a: 205;
Cullman Depo. at 342-49.
Dey Pa!mez Depo. at
6%1%'7q~". ~
Confidential
Attorney Work P~oduct
At~o~ney-Cl~ent P~vilege
Jones, Day, Reavis g Pogue Draft
agents of membet companies, the general rev[ew of plaintiffs"
evidence leads to the conclusion that plaintiffs can probably
establish this contention, conclusively.
b. "O~en Controversy" Ads and Public Statements
TIRC/CTR and TI
The plaintiffs have selected and used many Ti and CTR
documents which present the industry positizn that it has
been scientifically established that smoking is a cause of
disease, particularly lung cancer. These documents are
collecZlve!y referred to herein as "O~en Ques=ion" documents.
virzua~iy hundreds of them a~e available to ~laintiffs.
Dozens of TI pamphle:s could be used by plaintiffs to establish
:haz the ~ndustry maintains that the smokinq and health link is
an "Open
Before the "Open Question" was formulated in early
1954. E. A. Dar[, the ~resident of Reynolds, reacted to Dr.
Wynde:'s 1953 findCngs and a Statement by D~. Ochsne~. Da~
was quoted as saying the~e has been "no real or substan:iated
evidence" that smoking causes lung canoes. "The only claims
have been made by jus= three doctors ....
The vast body of
A 197~ T: memo re~ects the difficulty in ascertaining
which Ope~ Question ads were actually run. Memorandum
from wiI[iam Kioepfe[ to HoCace Kz[negay, A~Gust I, 1977
(T 003~3~>. Tab 262.
-47
Confidential
Attorney Work Product
Attorney-Client Privilege
Jones, Day, Reavis & Pogue Draft
other medical scient~s:s do not agree with these."''~ Dart's
statements underestimated the state of medical opinion, and his
position was Soon changed to the stock position that has been
repeated for over 30 years. The following are some of the
statements plaintiffs have selected and are representative of
the Open Question documents.
In response to the undisputed industry awareness that
cigarette smoking is a health hazard, the industry announced in
January !954 the "Open Ques:ion" position in a widely run
"A Frank Statement to Cigarette Smokers," The "Frank
Stazement" said:
Distinguished authorities point out:
I. That medical research of recent years
indica:es many possible causes o~ lung
cancer.
2. That there is no agreement among the
authorities reqarding :hat the cause is.
3. Thai there is no proo( that cigarette
smoking is one of the causes [of lung
cancer], we believe the products we
make are not injurious to health.
We believe the ~roducts we make are not
injurious to health.
Newspaper article, Raleiqh News & Observe:, "Big Tobacc~
Stocks Rally~ Dart Disputes Canoe[ Talk," ~ecember 1!,
1953 (50054 3~56) , Ta~ 263.
Confidential
Attorney Work P~oduct
Attorney-Client Privilege
Jones. Day, Reavis & Pogue Draft
We are pledging aid and assistance to the
research ef~o~ into all phases of tobacco
use and health.' '~
Similarly, in the industry-wide "Statement Concerning the
Origin and Purpose of the Tobacco Industry Research Committee
and Its Proposed Functions," dated January 25, 19S4, defendants
wrote:
ExaMination Of all recent reports and
pub!ica:ions, howeve:, reveals that many
factors, such as various types of air
pollution, as well as tobacco smoke have been
suspec:ed as causes of lung cancer. Although
much has been written concerning the incidence
of lung cancer, there is still a dearth of
authoritative findings on the subject. It is
sa~e to say that no persuasive and definitive
conclusion respecting the cause of this
d:sease, or the relation of smoking thereto,
has been establlshed.
17.
"A Frank Scacemen~ to Czgare~te Smokers." Tab 2~4, Dr.
Colby has "no quarrel" with the "Frank Statement." Colby
Barnes Depo. aE 404. Also in early 1954, the indusCry
reZterated the open question in the ~ormation of the TIRC:
Examination of all recent reports and
pubiications, however, reveals that many
factors, such as various types of air pollution,
as well as tobacco Smoke have been suspected as
causes of lung canoe:. Although much has been
written concerning the incidence of lung cancer,
there is s~ill a dearth of authoritative
findings on the subject. ~t is safe to say tha=
no persuasive and definitive conclusion
respecting the cause of this disease, or the
relation of smoking thereto, has been
established.
Statement Concerning the Origin and Purpose of the Tobacco
Industry Research Committee and Its P:oposed Functions,
January 25, 1954. Se___~e TaD
Confidential
Attorney Work Product
Attorney-Cllen~ Privilege
Jones, Day, Reavis & Pogue
The Open Question was (or may have been) repeated in
"AnaCher Frank Sta~emen~ to Smokers" in 1958.
The five main elements of the 1958 posit~on were:
a) It has not been scientifically
established that smoking is a cause of
disease, particularly lung cancer.
b) The solution lies in more research to
which the industry is committed.
c) Scientists have been unable to
establish any ~ngredient as found in
cigarette smoke which has produced lung
cancer in animals or human beings.
d) The industry believes that cigarettes
are not injurious to health.
e) Moderation is the touchstone.'--~'~
In an ad to be run in 1962 or 19~3, the indus:ry
omitted the statemen~ that cigare:~es are not injurious.
Zs not certain that t~is ad actually ran.). The position
became:
"Intensive research of the past few years
has not confirmed the theory that ¢iaare:te
s_moking may cause lung cancer - a t~eory
suggested Dy statistical association
studies.°/-~
"Another Frank Statement to Smokers," 1958 (I002507695).
Tab 265.
Advertisement entitled "Some frank wor~s abcu: . . .
Smoking and Research," undated. TaD 2~. (emphasis
added).
- 5O
Confidential
Attorney Work Product
Attorney-Client Privilege
Jones. Day, Reavis & Pogue Draft
A little late: the position was modzCied closer to the
accepted state of scientific knowledge:
Scientific advisors inform us that until
much more is known about such diseases as
lung cancer, medical science probably will
no~ De able to determine whether tobacco or
any other single factor plays a ~ausative
role - ot whether such role might be direct
or indirect, incidental or important./-z/
The basic position in the ads and press releases and
speeches has not changed since the industry published the f~:st
"Flank S:atement" in 1954.~--L~
co Industry "Admissions" Concerning the "Open
Controversy" Position
Plainti6fs wi!! argue that even if the tobacco
companies believed in the "open question" position in 1954,
they have known it to be untrue for almost 25 years. Fo:
example, on October I~, 1962, the President of Brown &
Williamson wrote to the P:esident of ~eynolds:
20.
2!.
"A Statement About Tobacco and Health," c. 1963. Tab
267.
Sere Colby Barnes Depo. at 270-276: Hall R, oysdon Depo.
29-30; Horrigan Dewe.__.__/v Depo. at 39-4!: Judge Depo. at
• See also, R. J. Reynolds Tobacco Company Mission
Statement On Smoking And Health, January i~85 (not
produced). Tab 268. Position Paper, 3/3!/83 (50~74
0595-06~); Hall Roysdon Depo. Exh. 2, and DiMarco Rovsdcn
Depo. Exh. 2); ~eprinted in 1.4 T.P.L.R. 5.45 (April
1986). TaD 269. The Open Question ~as been ~epeated
time and time again in public statements by members of
the indust:y. E.~____~ T: and CTR documents at Ta: ~70.
Con{tden~ial "
Attorney Work Product
A~to~ney-Client P~ivilege
Jones, Day, Reavis & Pogue Draft
Let me make my position perfectly clear.
we were able to make strong, af(i$mative,
well-documented statements which might tend
tO convince the public that the cha~ges
against our industry are invalid and
insupportable, I would subscribe
wholeheartedly to a series 06 paid
advertisements in which we could tell our
story. But since we cannot take such a
positlon I think it far better to continue
to let the public make its own judgments
which since 1953 it has done with results
not wholly unfavorable to the tobacco
The Chairman of the Boa=d of Lo~illard agreed with the above
quotation and added:
! believe that paid advertisements
which would satisfy all of us, including our
respective legal counsel and litigation
counsel (and which would still remain firm
and positive rathe~ than negative or
defensive) would be almost impossible to
arrive a~./-!~
Abou~ the same ~ime, a document drafted for T! indicates even
"amon~ friends" many believe the industry had no "adequate
defense," Also in 1962, some members of the SAB of the TIRC
had "mixed feelings about the industry's posltcon.
22.
24.
Lette~ from W. S. Crutchens to Bowman G:ay, October l~,
1962 (1002609176; Cullman Depo. Exh. 9). Tab 271.
Lette~ ~rom Lewis Grube: to Bowman Gray, October 19, 1~6Z
(i002609373; Cul!man Depo. Exh. ID). TaD 272.
Undated TI document, c. 1962 (T 275~i). Tab 273.
52 -
Con{~dential
Attorney Work Product
Attorney-Client Privilege
Jones, Day, Reavis & Pogue Draft
Another document that is troublesome is a 1965
memorandum attached to a chronology of significant events
relating to smoking and health. James Bowling, who began work
for Philip Morris in 1948, refer.ed to the document as the
"chronology of confusion."~
In !967, TI'S public relations agency recognized the
need to pursue a program that "Re-establishes the cigarette
cont[ove:sy."!-~ William Kloep6er commented in a
memorandum in 1968:
2. Ou: basic pc$ition in the cigarette
controversy is subject to the charge, and
may De suDjec: to a find:ng, that we are
making false or misleading statements to
p:omote the sale o~ ciga~et:es.!-L~
This memorandum ais= noted that the indust:y's ability to
"reopen" the cigarette controversy was "reduced.
26.
27.
Lette: from James C. Bowling to Car! Thompson, June 14,
1965 (65005 1877; i00304!092; Bowling Depo. Exh. 59).
TaD 274. At ~is deposition, Bowling did not elaborate
t~is reference. Bewling Depo. at 589.
"The Ciga:ette Controversy, An Action Program," The
Tiderock Corporation, November 20, !967 (T 13202).
275,
TaD
Memo:andum from William Kloep~er to Earle C. Clements,
April 15, 1968 (T T15379; Kloepfer Depo. Exh. 17). TaD
276. This document was copied to H. H. Ram~ and Charles
wade at Reynolds.
- 53 -
"uo~u~do D~lqn~ pu~
:~ue~n~op s~q~ o~ XiSuo~s X~a^
peq ~eq~ pem~e: Xlq~:5 I~ ;o :~xue~ P~JI '~L61 uI
pue a=u~ ~ p~dope s~q a~n~suI o~eqo~
:~ a~en~d~ad
QaZ~D~D ~^~nD~za uo~IITM pu~ u~o]e 'T/6[ ul
~Dnpo~8 M:OM Aeu~o~V
l~uap~;uoD
Confidential
Attorney Work Product
Attorney-Client Privilege
Jones, Day. Reavis ~ Pogue Draft
advocating the public's right to smoke,
without actually urging them to take up
the practice
encouraging ob3ective scientific
research as the only way to resolve the
question of health hazard
On the liti@ation front for which the
strategy was designed, it has been
successful. Wh~le we have not lost a
liability case, this is not because ~uries
have rejected the anti-smoking arguments.
On the molitical front, the strategy
has helped make possible an orderly
retreat. Hut it is fair to say that it has
not stemmed the pressure for new
legislation, despite the major concessions
we have made.
On the public ooinion front, however,
our situat=on has de,or=orated and will
continue to worsen. Thi~ erosion will have
an adverse effec~ on the other fronts,
because here is where the beliefs, attitudes
and actions of judges, juries, elected
officials and government employees are
~ormed.
THE ST~TEG:C ~MFASSE
As an industry, therefore, we
committed to an ill-defined middle ground
which is articulated Dy variations on the
theme that, "the case is not proved." As
the recent history of U.S. involvement in
Vietnam demonstrate~, it is impossible to
hold the public on ~ middle course fo: any
length of time. There seems to be no way
that mass public opinion can engage in a
controversy and choose an answez that goes
beyond the range of either/or.
In the cigarette controversy, the
public -- especially those who are present
and potential supporters (e.g- tobacco s~ate
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perceive, understand, and believe in
evidence to sustain their oplnions that
smoking may not be the causal facto[.
As things stand, we supply them with
too little in the way of teady-made credible
alte[natives.
THE ALTERNATIVES
Two such credible alternatives exist:
The Constitutional Hypothesis
i,e. people who smoke tend to 41fret
importantly from people who do not, in
thei: heredity, in constitutlonal
makeup, in patterns of life, and in the
pressure under which then live.
~)
The Multi-factorial Hypothesis
i.e. as science advances, mo:e and mote
factors come unde: suspicion as
contributing to the illnesses for which
smoking is blamed -- air po!!u:ion,
viruses, food a~ditzves, occupa~ional
hazards and stresses.
Our lg70 puDl~c opinion survey showed
that a majority (52%) believed tha~
cigarettes a~e only one of the many causes
of smokers having more illness~s. It also
showed that half of the people who believed
that smokets have more illness than
non-smokers accepted the constitutional
hypothesis as the explanation.
Thus, there are millions of people
would be receptive to a new message, sta~ing~
Cigarette smoking may not be the health
hazard that the a'nti-smoking people say
it is because other alternatives are a:
least as o~obable.
The Roper P:oposal would ~e pe:suaslve
(if not stric:!y scientific) medium
message, which we have done little
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develop in a systematic or comprehensive
way.l-z"
The plaintiffs can argue that the defense strategy at
tr:al is the same as that identified by Panzer:
(i) Creating doubt about the health charge without
actually denying it;
(2) Suggesting alternative causes.
Jurors are likely to resent the express!y-recognlzed
tzbacco industry intent to manipulate them. Thus, the
plalnti~fs can argue the industry conspired to ~ormulate and
execute "a single strategy" with the purpose of deceiving and
manlpu!a:ing the pub!it, politicians and the very jury sitting
in the box. The testimony of plaintiffs' experts who dispute
the validity of the Open Question coupled with the industry's
recognized doubts about the position, will be used in an effort
establish a conspiracy to misrepresent the status of the
scientific evidence regarding smoking and health.
Unfortunately for the defense, Panzer included not only
smokers, but also jurors, in the group of intended victims of
the conspiracy.
30.
Memorandum from Fred Panzer to Horace Kornegay, May l,
i~,~ (T~" 00209gg). Tab g5
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d. ~ynolds Statements
The plaintiffs have selected a number of Reynolds
Annual Reports that set forth the Open Question position. It
is difficult to imagine how these documents help plaintiffs'
case but an example of Reynolds' statements is set forth below.
In 1954, Reynolds stated:
Many eminent medical authorities have stated
that claims made as to a possiDle causal
relationship between smoking and lung cancer
are lacking in any real proof. Very little
is known as to the true cause or causes of
any cancer, and it is to De hoped that
research financed Dy the Committee [TIRCI
will aid med~ca~ science in discovering the
cause.-L-u~
Similar statements are con:ained in the 1955, 1966 and
19~a Annual Reports.!'!" Plaintiffs have selected some of the
minutes of the annual meetings of Reynolds stockholders which
contain similar Open Question statements./~
In 19Bl, the Kxecutive toni:tee of the Communications
Co~mlttee of TI suggested a national advertising campaign "~o
reinforce the smoke:, his choice to smoke and the custom of
1954 Annual Repot: R. J. ReynoLds Tobacco Company (50043
4704, at 4710). Tab 278.
(50043 4957° at 4~5~, 4gg2, 5050-51). Tab 279.
(50043 3481, at 3452, 2499-2500, 2512-13, 2997-98).
2S0.
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smoking."!-s'" The memorandum which contains this suggestion
also indicates that Mr. Horrigan agreed with it.
In 1967, J. $. Dowdel[ (~JRT) acknowledged that public
opinion polls showed "a majority of the people in this
country - both Smokers and non-smokers - believe there is a
Rroven link between cigarette smoking and lung cancer." The
letter acknowledged, however, that "the industry has very
little, if any, positive evidence upon which to base the
aggressive campaign necessary at this late date to materially
change public opinion." Despite that fact, Dowdell suggested
"public attitudes can be changed" by "even more public
34.
Memorandum from J. J. Morgan to H. Cullman and J. C.
Bowling, March 24, 1981 (T 003572). Tab 281. The
Executive Committee suggested tha~ this could be
accomplished by:
- attacking bad research
attacking researchers themselves, where
valuable
attacking the unreasonableness of
legislative segregation
exposing the bureaucracy and personal
aggrandizement of certain anti-smoking
organizations.
In effect, the Communications Committee i~ readying
adve=ti5ing to stand up to the industry's de~ractors and
by that means support our smoking population.
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supports an argument that "pu~l~c relations" rather than
science is the only available means to create doubt in the
minds of the smoking pub!~c concerning the health risks of
smoking.
e. The Publlc Issues Campaign, of Reynolds
For the most part, the public issues campaign concerns
passive Smoking, social acceptability and discouraging child=on
from smoking. The two ads which relate to smoking and health
are, "Can we have an open debate about smoking?" and "Of
cigarettes and science."~--£~" The "Of Cigarettes and Science"
ad relates to corona:y hear: d~sease. The ad concludes, "The
controversy over smoking and health remains an open one."
Thus, the Open Question :heme has continued until the present.
~. "Moderation" as an Admiss:on
Some of the Open Question ads caution moderation. The
1958 Frank Statement con=ained the following cautionary note.
Of course, we have never suggested, and do
not suggest no~, that excessive indul~ence
in any of li~e's pleasures is beneficial to
health. As in everything else, moderation
is the touchstone.
35.
3£.
Lette~ "Public Opinioni-Smoking and Health," from
Dowdell to C. B, Wade, Jr., AuguSt i0, 1967 (50000
6192). Tab 282,
Tab 2S3. These ads we:e discussed Drief!y in Hor=igan
Dewey Depo. at 2S7, 297.
6 _~I 5 ,-/93Z6
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Suggestions for moderation have also been made by
representatives in other context~.~-!" The caution against
excessive smoking could be deemed an admission tha~ excessive
smoking is harmful. Industry witnesses are likely to be
cross-examined about this suggestion. The moderation
suggestion was dropped in later ads, although industry
representatives have suggested moderation on occasion. The
reason for the eventual omission of the moderation suggestion
probably came from the lawyers or Dr. Colby.
Possible Industry Response
The premise of the plaintiffs' contention that the
indust:y conspired to reinforce smokers seems to be that the
statements made publicly by the industry were
Plaintiffs can use three methods of establishing such
falsehood. First, plaintiffs might rely on company documents
or statements that admit such falsehood or otherwise indicate
the Open Question in untenable, Any such admissions or
documents are extremely "hot" and defense counsel should be
aware of them. Another method of attacking the "open question"
statements is to present a "state of the art" witness, such as
37.
In 1980 Joseph Cullman, fir, stated: "Obviously, there
are a lot of people who shouldn't smoke and who shouldn't
smoke ~o excess. Address to ~usiness School of
University of Virginza, 1980.
-61-
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"~Tp~IRAU~
~ua~ed s~ a~e~suo~ap o~ ~oe; s~ uo (~LD Xq pa~csuods)
q~=e~S~ ~:~=npu~ ~e~e O~ ~T 'puona~ aq~ o~ p~ele~ 'poq~a~
.~e ~q~ ~o ~e~s. ~4~o ~o 5~eH ~O uo3~eu~ex~-sso~D
"~Sle; Xla^~snl~uo~ a~am =azeI pue Z961 "~96~
0
_
[3"
c:Ga:ettes are not ~nju:~Cus t~ the O~en Question, txe
evoiut~on occurred because the industry grew more cautious.
The industry still does net ~elieve cigarettes are injurzous.
ccncedin~ ~i:~e: ~a~ the 1954 ~t~:e~ent was
c~g~:e~tes cause c~sease.
Another industsy resp3nse an~
cross-exaninaticn technique is to demonstrate that the
of imp...C:t premise of avery industry or com;an'y Open
5:ate~en~ is ~hat a ~ody of ovinion exists ~nac contends
• _,- ~ ~ ~he: disesse
c~a:et~ cause lung cancer or ,,m_ o
,
?:~nk St ,:emen= ea~lizitly azkncw!edg~d repo:=a of
conduc:~d by doctors cf professional szanlin~ :~nking
ci~are~e~ ~o lung cancer in human beings. The
disregarded o= !igh~ly dismissed. In 1962 =he OFen Questicn
ads s:ated that ~ndu~t~y-su~t:ed research dil not "exznet3~e
smoking." :~one o~ the a~s c3te~zzically ~enied the
against s~ekinG. Re'=-~o!d~' fete.z: puz!~c i~~es cam~a:~n
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concedes that there are allegations against smoking. Thus, in
otde~ to rely on the Open Question and similar pronouncements,
a plaintiff must either explicitly or implicitly know of the
health risks a!]eged to be associated with smoking. The
plaintiffs should not be allowed to read the Open Question
s~atements selectively, Reliance on the Open Question
statements puts the plaintiffs jus~ about where the defendants
want them: Informed of all the accusations, but choosing to
smoke, nevertheless.
A TI document indicates that TI developed guidelines
encouraging truthful and intellectually honest reporting on ne..__~w
research in a pub!ica:ion, Tobacco and Health Research which
was dis:ributed to medical doctors.~-l't The guidelines
provide:
IMPORTANT: If the paper contains any
conclusions or findings unfavorable to
tobacco, these are reporte~ scrupulously.
The account of these findings may be terse
and placed at the end of the story, but it
must be there.
This document det:acts from the contention tha~ T!
misled medical leaders.
3g.
Memcrandum "Tobacco and Health Research Procedural Memo"
from Carl Thompson to
Ig6~ (T 13890; 65011 g383; CT Exh. i0). Tab 284.
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In dealing with moderation issues, industry witnesses
should be able to articulate both that they "do not disagree"
with the "moderation" statements and "do not disagree" with its
ultimate omission. Moderation in eating, exercise and all
activities is good advice. In the final analysis, plaintiffs'
reliance on any of the moderation documents establishes an
awareness of the health allegations which undercuts plaintiffs"
contention that they were unaware of the risks associated wi~h
smoking and, therefore, they should have been warned. Unless
the industry witnesses complicate the issue by denials oF
untenable explanations, the moderation issue hurts plaintiffs
more than it does defendants. Thus, the less said the better.
The point can be argued without any explanation by industry
witnesses.
B. The Gentlemen's Agreement
To the best of out knowledge, no documents have been
produced in any litigation relating to the alleged "Gentlemen's
Agreement." No~ have we been able to identify anyone
knowledgeable about it, its participants, i~s terms, or even
whether it exists in any for~ beyond speculation which has
gained currency through repetition. There are, however,
documents which record the fact or the speculation of a
Gentlemen's Agreement.
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Plaintiffs" Contentions
Industry documents suggest that an informal
understanding reached by all the major tobacco companies (with
the posslble exception of Liggett) and had two principal
prongs. First the industry agreed not to conduct smoking and
health research in-house, but rather to have it conducted by
TIRC. Second, they agreed to share any smoking and health
breakthroughs.
The first document mentioning the so-called
"Gentlemen's Agreement" was prepared by a former Reynolds'
emp!cyee in !97B. As part of a general analysis of Philip
Morris, the employee notes:~-!~
-- R&D for international operations is totally
separate from domestic efforts and engages
in activities apparently not found in
domestic research.
° A wholly-owned subsidiary in Cologne,
Germany engages in carcinogenic
biological research, such as mouse
painting, in violation of the verbal
agreement among domestic companies not
to perform animal testing in-house.
° PM's German subsidia:y has also engaged
in product health claims considered
insupportable and apparently without
prior knowledge by the parent company.
40.
H.H, Cudd, Jr., "Phi]~p Morris U.S.A.," FeZ. !7, 1978
(50394
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In the second of these documents, Dr. Colby (RJRT)
wrote :
There is a clea:-cut agreement among all
U.S. cigarette manufacturers that any
scienti{ic dlscovery made withi,~ the
companies, or otherwise sponsored by a
single company, which might have a positive
impact onthe smoking and health
without any costs to the other
manufacturers. There would, therefore, be
no incentive for RJR to sponsor the Cohen
project. This applies to any other product
development oriented research by a medlcal
institution to be sponsored by a U.S.
tobacco company.
At this time RJR does not fund directly in
the U.S., any d~rectly smoking and health
related research. All such requests are
answered by referring the applicants to CTR.
The th::d document is of similar import, and
szates:!-~
Through the domestic industry, two
"Gentlemen's" Agreements were opera~ive in
the early ~ays:
Any company discovering an innovation
pe:mitt~ng the fabrication of an
essentially "safe" cigarette would
share the discovery with others in the
industry.
No domestic company would use intact
animals in-house in biological research.
4!.
F.G. Colby to R.Z. Morse, "Research Proposal by A.B.
Cohen, et al., Temple University," Oct. 26, 1981 (50053
43S8). TaD
F.G. Colby and A. Rodgman, "Biological/Consumer
Prefereece Research Conducted by Philip Morris," Ma:ch
!983 (50!54
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- We know the latter agreement has been broken
by at least two domestic companies and
suspect the forme: agreement would not be
honored today.
In addition, the testimony of various witnesses is
consistent with one prong of the Gentlemen's Agreement. Thus,
the testimony of the industry witnesses is that smoking and
health research was not conduc:ed in-house but was left to
TIRC."~ Indeed, as ea:ly as 1963, Mr. Cullman (PM) stated,
"No company is working specifically on the health
question."'4~ He did not explain the basis fo~ his intimate
familiarity with his CompetitOrs' research activities. If one
of the reasons for the limitaton on research was to avoid one
company's developing a competitive adwantage based on health,
iz supports the existence of an agreement. To date, the most
common reasons articulated for avoiding in-house research are
that in-house resea:ch results would lack credibility,~--!~ and
that the companies lacked the necessary resources and expertise.
The most problematic feature of this alleged agreement
is the provision requi~ing the sharing of smoking and health
43.
44.
45.
E.a~, DiMa:co Roysdon Depo. at 15-17; DiMarco Browner
Depo. at 16.
"Tobacco: More Trouble Ahead," Forbes Ma~azine (July 15,
1963) (5028~ 3811). Tab 94.
E.=., id.
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b=eakthtoughs. A suggestion that such an understanding existed
is a PM memorandum concerning a 1968 meeting with the Secretary
of Health, Education and Welfare."--$~ If true, this provision
erected an economic disincentive for individual companies to
pursue "safer" cigarette research. Why would a company invest
the milllons of dollars necessary to develop a "safe["
cigarette that would give it no competitive advantage in the
marketplace? Conversely, avoidance of *safer" cigarette
research served tO protect the market for the conventional
cigarette.
Possible Industry Resoonse
We know very little about the alleged Gentlemen's
Agreement, except that (if it existed) it was honored more in
the breach than in the observance. Intensive factual
investigation within each company is warranted.
46. Ta~ 52.
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IV. CORPORATE AWARENESS AND RESPONSIVENESS
TO THE SMOKING AND HEALTH CONTROVERSY.
Universal awareness and personal responsibility are
twin themes OF the defense strategy. In depositions, in briefs
and at trial, the defense has made these points forcefully and
w~th considerable impact, we expect these issues to continue
to be a centerpiece of the defense.
Anticipating or reacting to this, plaintiffs' counsel
have attempted to undermine the strength of these arguments by
showing a low level of personal awareness amon~ industry
executives. These inquiries have met with considerable
success. They have also flowed naturally into inquiries about
corporate responsiveness to the smoking and health
controversy. In this area as well, plaintiffs have scored
significantly. A~ risk are several key points: whether the
industry breached comzaon law duties to investigate its
products, whether the "Open Controversy" position is
legitimate, and whether the industry spokespersons will be
crediDie witnesses.
A. Corporate Awareness
Plaintiffs" Contentiens
The corporate defendants are held to the standard of
"experts" in the field, and are expected tc De aware of all
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reasonably available scientific and medical information
pertaining to their products. In this case, evidence linking
Cigarette smoking and lung c~ncer was available in the 1930s,
and in any event was universally known in scientific circles in
the early 1950s. Since then, the evidence has continued to
moun~ and is now overwhelming.
The defendants, however, have either ignored or
filtered the mountain of evidence indicting cigarette smoking
as a health hazard. For example, in 1963, American Convinced a
federal court that it "could not by reasonable
skill and
foresight, have known that users of cigarettes would be
endangered by the inhalation of the mainstream smoke." Green
v. American Tobacco Co., 3Z5 ~.2d 673, 674 (Sth Cir. 1963).
The pattern of studied ignorance continues unabated.
Ligqett executives are kept advised of medica~ reports by their
lawyers. From 1965 to 1982, Reynolds executives filtered
information through an R&D employee who was, in facZ, a
paralegal to Reynolds' lawyers.
Moreover, when asked about available evidence linking
smoking and lung cancer, even "knowledgeable" industry
deponents typically roll out stock answers:
• Statistical association does mean causation.
The induction of malignanZ tumors in skin
painting tests is irrelevant to the human smoking
experience.
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Although causation is accepted by every medical
association, every voluntary health organization
and the government, causation is established by
science not by polling.
Finally, the industry has failed to employ personnel
in the disciplines most intimately involved in smoking and
health issues. Thus, according to available testimony, no
cigarette manufacturer h~s ever employed a physician to
evaluate the smoking and health literature. $1milarly, based
on the evidence of record, neither epidemiologists nor
biostatistioians have been employed.
At Liggett, Company lawyers played a central role in
monitoring the smoking and health literature, keeping
management advised, and controlling Ligget~'s research.
Ligget~'s current President, K. V. Dey, testified that he was
the mosz knowledgeable person at Liggett on issues of smoking
and heal:~ a:d ~hat he obtained all his information on those
subjects from his in-house counsel, Joseph Greet, and the
company's outside lawyers at Webster & 5heffield."--!'/ It was
also, of course, Liggett's General Counsel who ordered that a
47. Dey Depo. at 86, 109-10.
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company lawyer be present at all meetings in the research
department concerning the palladium cigarette and who,
ultimately, vetoed Liggett's plan to market that supposedly
safe~ product.~'~
b. Reynolds
with respect to awareness, Edward A. Horrigan (RJRT)
testified that it was not until "It]he early sixties" that he
Became aware of reports linking smoking with adverse health
consequences.~-z" This was ameliorated to some extent Dy
o:aer testimony, and related to a period prior to 1978 when M~.
Hcrrigan joined RJRT.
According to G. R. DiMarco, Vice President of Research
and Development, Reynolds relies on CTR to review the medical
literature relating to tobacco,~--z" although it also monitors
the smoking and health literature in-house.~'/ Note,
however, that Dr. $om~ers denied that CTR monitors smoking and
health literature for any tobacco company.IZ~ Reynolds has
49.
50.
51.
52.
Mcld Depo. at 169-70, 182-90.
Horrigan Depo. at
DiMe[co B~owne: Depo. at 63.
DiMarco Browne: Depo. at (errata).
5omme[s Duke/~ocers Depo. at
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~'" and does not have any
not employed an epidemlologist,--
medical doctors working in the smoking and health area.
Less than I0 employees have been advisors to Reynolds
management on the smoking and health issue.~
Dr. DiMarco also testified that he "[does] not feel
qua!i~ied to answer" the question whether "there was o[ was not
a tea[ association" between smoking an~ human disease.~--~
Indeed, he conceded that "I don't feel that anybody at Reynolds
would be qualified to answer tha~ question."~--!"
c. Phili= Morris
The Fhilip Morris documents reviewed Dy us reveal
little concerning the extent to which that its senior
executives were briefed on scien:ific developments in the field
of smoking and human disease. What is available is not
impressive~ A series of memoranda by J. E. ('Jet') Lincoln --
a man benefitzing from no scientific training -- suggests that
some of the advice the PM executives received was dubious. Jet
Lincoln had a pet-theory, which he termed "my
53. Id. at 108-09, 325; DiMa:co Browner Depc. at
54. Colby Depo. at
55. Id. at B29.
56. DiMarco Browne[ Depo. at 42.
57.
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hypothesis' that '~ung problems cause smoking.'-!-z', In one
such memorandum~--z" M~. L~nco£n, elaborating upon his "reverse
hypothesis', wrote:
There is no other way to explain the high
incidence of smoking in certain occupations.
Also, it seems to me thZs might be a good
time to urge attention to additiona!
causation ~heories. Unhap~:ness causes
cancer. We've seen several foteshadowings
of that one. I think dampness causes lung
cancer or perhaps it would be better said
that dampness causes lung problems, some of
which end up as cance~s.
I nave: cease to wonder if Philip Morris is
s=endLnc enough of its own money on
furthering the scientific defense of
cioaret~e smoking.~--~
In another memorandum ~o Mr. Cullman, "Jet" Lincoln
offered "the comments Zou requested on the Ham,~ond-He~n
report," which included the following obse:va~Cons:
I personally suspec~ ~a~ nervous tension
is the underlyin~ cause of cigarette
5B,
59,
60.
Memorandum "The Fluo~spa: Miners," from J.E. Lincoln to
A. Holtzman and J.C, Bowling, Oc~oDe~~, !~77
(1003040080, 65005 IB6Q; Bowling Exh. 12) (emphasis
added). Tab 59.
Confidential Memorandum "NC: Study of Occupational
Cancers," from J.E. Lincoln to A. Holtzman, October 6,
1978 (100304007B). Tab
I~. (emphasis added).
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smoking. Thus, whatever the merits of the
design of this particular survey, I am
afraid there is an association between
cigarette smoking and slightly less than
average life expectancy. In other words,
the people who are tense and nervous and
unable to accept the world as they find it
probably are (I) more inclined to smoke
cigarettes than the rest of the ~opulation,
and (2) mote likely to die early than the
rest of the population, but their tendency
to smoke cigarettes is a result of the
petsonai characteristics that make them die
early rather than a cause of death.
Philip Mot:is does not employ an epidemiologist,
although it formerly had on its staff a veterinarian with an
epidemiological ~ent.i-L"
d. American
Robe:t K. Heimann (American) is an excellent witness
on personal and corporate awareness relating to smoking and
lung cancer, but is weak on othel diseases associated with
smoking. Thus, he was aware of the smoking and health
controversy in the 1920s, an~ "as a growing lad" bad heard both
the phrase "coffin nails" and the claim that cigarettes caused
tuberculosis.~--z" He is familiar with his=oric claims dating
61.
62.
Confidential memorandum, "Hammond-Horn Report" from
Lincoln to J. F. Cullman, 3rd, June 5, 1957 (i00503gl37)
(emphasis added). Tab 61.
Osdene Cipoilone Depo. at 157-58.
He~ann F!vn_~ Depo. a= 2!, 2:.
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from K~ng James I in 1604 to Lucy Page Gaston's presidential
candidacy in 1920.~-~'~ Prior to his employment with American
in 1954, he became aware of the widespread publicity which
attended Dr. Wynder's skin-painting study.~--!~" Furthermore,
throughout his employment, he "tried to secure through the T[RC
s=aff or through other means copies of everything of
significance published ~n the area of smoking and health."~--~
Mcreover, Mr, Heimann was able to offer salient
c:iticisms of key studies, including those of Wynder and the
first Ma~ond-Horn study.~--~'" He was also able to cite
favorable epidemiolog~c and inhalation work (including tha: of
Microbiological Associates).~--z'" Finally, Mr. Heimann
personally participated in the last two parts of a five-part
epidemio!ogical study of American's employees.~--z'~
Mr. Heimann, however, was not familiar with
allegations that cigarette smoking was associated with (i)
several other forms of cancer, (ii) peripheral artery disease,
64
65
Id. at 26, 28.
I__~. at 24,
Id. at 107.
I~-. at 33, 35-36.
I~. at 41-44, 53.
I~. at 44-45, 48-51.
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(z~i) aortic aneurisms, (iv) low birth weights in infants of
smoking mothers. (v) harm to non-smoking spouses of smoke~s,
(vi) tobacco amblyopia. (vii) gastric ulvers. (viii) emphysema,
or (ix) Chronic bronchitis.'-Z" He indicated a limited
warene~s of claims relating to cardiovascular disease, cervical
cancer, and an ancient claim concerning fertility of smokers"
wives.~
In addition, Mr. Heimann acknowledged that while
~e:ican does employ physicians ~or industrial medicine, none
of them has ever had any smoking and health responsibility.'--LI
Possible Industry Response - Corporate
Awareness
The defense will undoubtedly stress any admission by
plaintiff that he was aware of the claims of adverse hearth
consequences attributed to smoking. To the extent a plaintiff
admits something less ~an unequivoca~ awareness on his part,
the defense may also seek to capi=alize on such "feigned~
~gnorance. That point, however, may backfire given the
industry's position in prior litigation and testimony of
industry executives. If a major American tobacco company could
70.
71.
72,
Heimann ~ Depo. I at 154, 15B~59, 16=-62, 164-65.
!d. at 159-I~0, 162.
[d. at 42-43.
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not in 1963 have foreseen that its product might cause disease,
and if well-educated and h:ghly-compensated executives were not
aware of specific alleqations, how can they criticize someone
far less sophisticated?
During employment, one would expect a very high level
of awareness by corporate executives. However, in response tc
inquiries seeking to ascertain the manner in which corporate
executives kept themselves informed of smoking and health
issues, the responses characteristically have been
disappointing, Such testimony strongly suggests that senior
executives have eithe= ignored or filtered the mountain of
evidence indlcting cigarette smoking as a health hazard. It
also undermines the "Open Controversy" position.
It is abun4antIy clear that the defense has not
adequately addressed the issue of corporate awa~eness. To
overcome the p~oblems identified above, care must De take~ in
the preparation of witnesses to assure their famiiia£ity with
certain facts. Eirs~, each company executive is undcuDzedly
familiar with ~he popularized epithets used to describe
cigarettes (e.o. , coffin nails, cancer sticks, nicotine fit,
little white slavers, etc.). These epithets have long been
used, and furnish a fundamental p~rt of the common knowledge of
the com,~unity. Industry executives should not hesitate to
acknowledge their awareness of these terms. Second, and
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perhaps most importantly, it is also true that no othe~ product
has received so much negative media attention. ThuS, vast
publicity SUrrounded the publication of the Wynder mouse-skin
painting study in 1953, the Report of the Advisory Comznittee to
the Surgeon General in 1964, and many othe~ developments.
Thus, a~a~eness of smokin@ and health issues is
self-execut~no. Indeed, employment in the tobacco industry
heightens awareness and inte:es= in such literature. Third,
within each defendant there ale undoubtedly many mechanisms by
which co[porat~ executives are kept informed.
~uz ate not limited to:
i. Infolog, published by TI.
2.
7 o
These include
Current digests published by CTR.
Discussions at company beard or committee
meetings.
Discussions at TI board or com~ittee meetings.
Discussions at CTR board o: com;niztee meetings.
Discussions with counsel w~th respect to pending
litigation.
Discussions with counsel and others with respec~
to proposed legislation.
Periodic reporting, such as monthly, ~uarterly or
annual Research and Development Department
repairs.
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Most of these undoubtedly are applicable to each of
the corporate defendants, and witnesses should not hesitate to
mention as many of these as app[op:ia=e. Among other things,
such a reference list should greatly diminish the apparent
impac: of reliance on lawyers for s:oking and health advice.
In addition to the foregoing, industry witnesses
should be given other benchmarks to develop on deposition,
including the following:
(1)
Industry witnesses should be able to
identify each major disease process with
which smoking has been associated, including
particularly those listed on the rotatin~
wa~ning labels.
(2)
Industry witnesses should also have a
modicum of ~amilia[i~y with the prznciples
underlying the "Open Controversy" position
with respect to the ma~or disease processes,
or be able to defer to someone in the
company with knowledge.
(3)
witnesses should be aware that while CTR has
some warts, it nct only has accomplished its
fundamental goal but also has cont:ibuted
more money to cancer research than ACS (and
perhaps all voluntary health agencies
combined).
(~)
The w~tnesses who are designated as Rule
~0(b)(6) witnesses must be knowledgeable
w~th respect to the basic information in ~he
documents which plaintiffs have selected and
should be able to present concise,
knowledgeable and credible responses to the
questions which plaintiffs will ask them.
This Report attempts to develop some of
these responses. The witnesses need not
volunteer, but denying too much creates as
much dzfficu!tZ as admi:zlng tzo much; and
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(5)
The industry witnesses should be given
positive Denchmarks o[ reference points
all of thei= testimony, including the
following:
(a
Cigarettes are a legal product with
many benefits which people voluntarily
choose to smoke;
(b)
Everyone has known the allegations Of
risks associated with smoking for many
yea:s, long before the statu:o~y
(c) The companies are under no duty to wa:n
o~ tha: which is already known;
(d) Cigarettes have been heavily taxed and
regulated ~y the FTC and Congress;
(e)
The industry has imposed many aspects
of regulation on itse!~ which is
un~:eceden~ed with any Othel product
and unique to cigarettes;
The companies and industry have
conducted health research and product
research to develop and market belie:
cigarettes that satisfy consumer
demand: and
Many peogle including notable
scientists assert a strong association
between smoking and lung cancer. Dut if
they can't tell us what causes lung
cancer in non-smokers, how can they
tell us what causes lung cancer in
smokers?
witnesses must, however, be careful not to go too fa:
in emphasizing that causation has not been established. Robe:=
DiMar¢o testified on behalf of Reynolds in Browner that
"Someday i~ will be established that cigarettes are not a
BROWN & WlLLIAMSON
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PRIVILEGED AND CONFIDENTIAL -- Produced as required by Ihe Court's March 7, 1998 Ofde~ in
State of M~nnesota. et al v Ph~hp M(~rr~s, et al. Court File No C1-94-8565 IIs use ~s subject Io the
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Attorney Work Product
A~to[ney-Client Privilege
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Thus, virtually every industry witness has vigorously
denied that his employer conducted smoking and health research
in-house. When challenged to explain how this duty was
discharged, industry witnesses have mechanically pointed to
CTR, invoki'ng its "independence" in the same breath.'-a~ As
discussed below, however, CTR's history is far from unblemished
and its research efforts have from time to time drawn harsh
criticism from the industry itself. Moreover, industry
witnesses are frequently as unfamiliar with CTR funded research
as they are w~th the literature generally.
i. Individual Comoanies' Failure to Investigate
Plainti~fs' Contentions
Although information dating to the 1930s was
sufficient to put the tobacco ~ompanies on notice (&nd trigger
both a duty to investigate and a duty to warn), evidence
linking cigarette smoking and cancer clearly existed and was
universally known in scientific circles during the period
1950-54. By that same time, credible evidence linking smoking
with cardiovascular and nonmalignant pulmonary diseases had
emerged.
Despi~e the foregoing, the reco[~ is replete with
admissions that the tobacco companies failed to inveszigate the
75. Se__~e, e.~.___~, Heimann R=~er_._.~ss Depo. II at 16.
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allegations that cigarette smoking adversely a(fects health.
Industry witnesses have consistently denied that their
employers conducted in-house smoking and health research. They
have also denied that the companies employed epidemiologists,
medical doctors, or others specially suited by training and
expe~ience to investigate the health charges. The plaintiffs
will thus contend that the conclusion is inescapable that the
companies did not take the first step in protecting the public
from a dangerous product -- they did not adequately investigate
the credible health allegations against smoking.
In fact, however, virtually every company has
conducted proprietary research, which in a broad sense can be
characterized as smoking and health research. Liggett,
American, Reynolds and Philip Morris did constituent analyse~
(as others undoubtedly did as well). Similarly, Liggett,
Reynolds and Philip Morris (typically through contracts with
outside entities) conducted skin-painting studies. Inhalation
studies were conducted under contract by Philip Morris and
Liggett, and a modest amount was conducted by Reynolds.
SroadIy speaking, this research tended either to
support the contention that cigarette smoking Causes adverse
health consequences, or at least not to erode that contention.
Fo: example, the companies confirmed the presence in cigaret:e
smoke of substances known to be carcinogenic and
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co-carinogenic. They also confirmed that the application of
cigarette smoke condensate caused tumors to animal skin.
Beyond this, moreover, none of the major epidemiological
findings have eve[ been disproved by the companies. Finally,
to this date, no industry witness can identify the quantity or
quality of evidence it would take to convince him that there is
a causal relationship between cigarette smoking and lung cancer
or other diseases.
~upportin~ Evidence and Documentation
a. Liccett
Ligget~ =eacted to the early epidemiologic and
skin-painting studies by establishing a "biological research
program" at Arthur D. Little, Inc. ('AD5") in Cambridge,
Massachusetts. In a memoran4um to Liggett dated January 20,
1954, ADL observed that:
A flood of publications during the Bast two
or three months has appeared, mostly in the
popular press, reporting on the experimental
work of Graham and Others, which tends to
prove that some substance from ci@arette
smoke is capable of causinq abnormal growths
on the skin of mice.'-~-'~
76.
Rough Draft Of Tentative ~rogram Memorandum from ADL to
5iggett, January 20, 1954
(emphasis added). Tab ~. In his deposition, Dr. Bates,
however, said Liggett's position in 1954 was ~ha~ there
was no relationship between lung cancer and smoking.
Bates Depo. at 70,
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In view of the "urgent pcoblems now facing [Liggett],"
ADL urged: "[w]e felt tha~, regardless of who might eventually
carry out the work, it was our duty to suggest a plan which
would point out all the various lines of positive action which
Liggett & Myers ought to follow in strengthening their position
at the present time."~-!~ ADL expressed the hope that its
recommended course of action "will suggest a number
approaches which will have both defensive and offensive value
with respect to the position of Liggett & Myers in their
competitive fie!d.
Id, A Liggett document entitled "NOTES ON TELEPHONE CALL
FROM MR. MACMANU5, W~DNESDAY, J'LILY 24, 1957, 8:i0 a.m."
[(RC 60286!4; Provost Eah. 27). Tab 4] contains a
cryptic report of a conveEsation (apparently between
Liggett's Dr. Darkis and "Mr. Macmanus') concerning
statements made by the NCI's Dr. John Heller and
referring the views of Liggett's President, Mr, Few:
I think Heller's overall belief is that
there is increasinq evidence of a causal
relationship and he is inclined to think that
there is something in the tar hut only a small
percentage of the mass contains it and
probably in the, po!ycyclic ~ydrocarbons, and that
we ought not to go and get scared and what we
ought [illegible] to do is concentrate on the
cause. Of course, Mr. Few's belief is they
shouldn,t pay a~y attention to the cause I%icl
they ouuht to find a cure. I don't go along with
this line of reasoning, but Mr. Few is so ~irmly
,entrenched with this idea, I didn't try to
disabuse him of i: because it probably would take
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AS initially proposed to Liggett, ADL's investigation
had three components:
a. "a survey of epidemiological data relating
to the incidence of lung cancer, including a survey of
~e~tinent literature as well as direct examination of
clinical records';
b. biological studies involving "the techniques
of procuring smoke fractions for test, and the methods of
controlling their application to animals" prior to actual
"exposure of animals to certain substances'; and
c. studies evaluating "fractions of smoke from
different sources with a view to establishing differences
in irritancy, as well as differences in possible
carcinogenic action," including "evaluation of the action
of filters, as well as assessment of specific components of
cigarettes."l±'z
78.
Footnote Continued From Previous Page
three days. I don't think this is too sound a
~osition. The tendency is to go slow and they
have given them ~o encoutaaement at all on
labelinq the packages.
(Emphasis added).
79 '~
o 88 -
Bq~ ~o ~6paI~OU~ pu~ pau3~qo s~InsB~
:eai~nuAIOd pB~u~un ~q~ ;o uo~npo~d
(e) o~ ~ue~:o~m~ ~q ~m ~ '~uo~puo~
~In~a~ £q pa~npo~d s~ au~Ldzu~q ~I
"pu~ Aq paq~z~sap s~In~a~ ~q% a~eD31da~ c~ .a~ep alqe~3~De~d
~a~l~ea s%~ ~e. ~d~a~:~ pIno~ q~¥ ~q~ paa~Se pue ~61
D~aU~lOd l~D~d~ e padola^ap peq ~ ~eq~ paDunouu~
pue~ "(.~VB.) Bua:Xd[e]o~uaq 6u3pni~u3 '(.sRY~.)
k~tu~plo wo~] a~ows aq~ u~ p~va~p peq ~3 ~eq~ pa~unouue
uO~2~odloD ~u~doI8^~ pu~ "iB~)~alaq~ Xl~oqs
~onpo~d ~oM Xau~o~v
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L and M and ADL should be held in strictest
confidence.'''
Subsequently, ADL's investigation "confirm[ed] the
original Rand premise that paper smoke did contain biologically
active materials and did contain 3,4-benzpyrene."'--~ ADL
also reported to Liggett that the same materials were present
in the smoke of tobacco, not only tobacco paper.~--!~
ADL also repeated Wynder's mouse-painting studies,
although at a lower level of tumorigenicity.'-!~ ADL
delivered its report on this work to Liggett on December 31,
82.
83.
84.
85.
Id. (emphasis in original).
"Outline of Topics to be Discussed at the Research
Conference in Durham, N.C., June 16 and 17, 1960,"
6026359; 65009 94~6; Bates Depo. Exh. __), at 73.
Tab 6. For an extensive discussion of ADL's
investigation o£ Rand's work, se_._~ "Outline of Topics To
Be Discussed at Research Conference To Be Held on
Novembe5 22 and 23, 1955" at 67-72 (RC 6026858; 65005
2719). Tab 7, The documents available to plain:ills do
not indicate what the other Companies did with respecz to
the Rand study, although it was a subject of concern
within TIRC. See pp. __, in~r__a.
Id.
ADL brought Dr. wynder to its laboratory in Cambridge to
inspect its physical set-up and methodologies. Kensler
Depo. at 60. Dr. gensler ~esctibed the doses used to
produce the result as "horrendous, unrealistic: in fact,
incredible." (~__d. at 87). For de~ailed discussions of
ADL's early mouse-painting work for Liggett, se__~_e, "The
Biological Test Program at Arthur D. Liztle," undated
(65005 2906). Tab 8.
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1956.'--~ Liggett did no: make this work known to the
public,'--l'~ It was, however, a subject of testimony in the
~ trial in 1950. Li@gett's Dr. Blount testified that
Liggett's mouse-painting experiment produced far fewer tumors
than bad Wynder's study.''z ADL's Dr. Charles Kensler also
testified about its efforts to replicate Wynder's results."'~
An undated (but early) Liggett document entitled
"Experimental Work in Our Laboratories on POssible Carcinogenzc
Substances in the Combustion Products of Paper, ToBacco and
Cigarettes-'--z" reports that:
3,4-Benz~yrene has been identified in
smeke con~ensates f~om cigarette paper, from
87.
89.
90.
"The Response Of CAFI Hybrid Mice To The Repeated
Application To The Skin Of Concentrated Solutions Of
Cigarette Smoke Ta~," from ADL to Liggett, December ~I,
1956 (65009 004; Bates Depo. Exh. ~), Tab 9.
Ba~es Depo at 92, Dr. Bates apparent!Z informed upper
management of the report, but th~s is not entirely
clear. Id. at 93-94.
Lar:ioue transc=ipt at 1492. D=. Blount's testimony was:
Yes, they were not able to duplicate Dr.
Wynder's experiment, and we had Dr. Wynder go in
there and look a: it and we d1~n't get anything
nea: the results that Dr. [W]ynder had obtained
fo= his experiment.
Id. at 2964-74.
"Experimental Work in Our Laboratc=ies on Possible
Carcinogenic Substances in the Combustion Products of
Pa~er, ToDac:c and Cigarettes," undated (~5005 2892).
TaD i0.
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both paper and tobacco wrapped cigalettes,
and in the trapped and main stream smoke of
filter tipped cigarettes.
In addition to 3,4-benzpyrene the group
at Arthur D. Little, Inc. has identified the
following compounds (tom paper smoke based
on ultraviolet difference spectra:
a. phenanthrene
pyrene
c. anthracene
d. 1,2-benzpyrene
The same work by Arthur D. Little
indicates the p~obable presence of, but does
a. acenaphthalene d. benz(o)anthracene
b. naphthalene e. chrysene
c. naphthacene f. ~luorene
Work done in this laboratory has
identified the following compounds in
addition to 3,4-benzpyrene:
a. anthracene
b. 1,2-benzpyrene
Another Ligqett document describes in detail a visit
to Liggett's laboratory on June 25, 1959 by a senior editor of
The Reader's Di~es:, James Monahan, during which Liggett
described its research and development work and admitted that
"in principle we had no ~isagreement with Dr. Ernest L.
Wynder's original findings that the total tobacco smoke if
applied in sufficient concentration and at short enough
intervals cancers could be caused to develop on the backs of a
6~1579~SS
-
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The cancer-causing materials apparently
are in many substances that are
pyrolyzed Duc seem to be associated
with tobacco in ~eater concentration
than for primarily cellulose.
There are many forces which continue to
emphasize that L & M is in the tobacco
business, not the pleasure business
will have to be accomplished by
avoiding these major pressures. A
means is emerging -- is it correct?
Can it De accelerated?~--i~
"About 1963," Liggett assembled the Liggett/ADL work
on mouse-painting studies and smoke composition and submitted
it on a confidential basis to the Advisory Commit:ee to the
Surgeon General.:-~" By that time, according to Dr. Mold, "we
93.
"L & M - A Perspective Review," from ADL, March 15, 1961
(65009 9372; Mold Eah. ??) (emphasis added). Tab 12.
Mold Depo. at 58. A "special conference" of senior
Liggett executive and research personnel was held on
February 4, 1964, shortly after issuance of the first
Surgeon General's Report. The minutes of that meeting
record that:
Mr. Toms [Liggett's P:esident~ began the
conference with the statement that Liggett and
Myers Tobacco Company had decided to contribute
to the American Medical Association Research
Program along with a number of other tobacco
companies .... Mr. Toms next stated that h~e
was being pressured Dy other tobacco companies
tO let them have a look at the material wnlch
Liggett and Myers submitted to the Surgeon
General's Committee. At leas~ they will want to
see the Do:: referred to by the Surgeon
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had isolated a variety of pOIycyc!ic a~omatic hydrocarbons.
These were the suspect compounds in the carcinogenic action on
mouse skin."''z Mold's (equest to publish this information
was denied by his superior at the time, Dr. Darkis.''"
93.
94.
95.
Footnote Continued F=om P:evlous Page
General's Commi~tee~ Dr. Ba~es then s~ated that
he had copied out portions of this report and
had mailed them to Mr. F=ed Haas. Mr. Haas and
Dr. Bates had concurred that i~ was O.K. to
submi~ this material ~o the interested parties.
As a mat~e[ of fact, Dr. Ba~es stated tha~ he
feels that our agreement with the Surgeon
Gene:al's Committee required this, Mr. Toms
then raised the question as to whether or
the A/~A would be entitled to see the full
report, Dr. Ba~es stated that he would not
recorru~end sending the report to the AMA
unsolicited. He felt, however, that when
persons requested this report and had a definite
research interest in the material included in
it, that they should be permitte~ to see it.
Mr. Toms asked ~he question of w~ether or no~ a
copyright on the material could be reserved.
Dr. Ba~es stated that he did not feel t~a= this
would be possible since it would be too easy for
reprints to be made once copies of the material
were made availaD!e to AMI memDers.
"Special Conference Held with Mr. Toms and Mr. Harrington
on February 4, 1964" (RC 6026563; 65009 ~481) (emphasis
added). Tab 13.
Id. at 60.
I_~d. at 61-62, NOTE: Mold di.m~d publish ~ paper
"concerning a technique for separating polyCyclic
aromatic hydrocarDons developed at Liggett and Myers"
entitled "5elective 5eparatlon of Polycyclic Aromatic
Compounds by Counte:¢~[:ent Distribution w~zh a Solven~
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Although he was not expressly told so, Dr. Mo~d's "supposition"
was that, "if you have any reasonable intelligence, you
understand that the company y0u're working for is under
p~essure from health authorities o~ one kind or another
regarding the possibility of whethe~ their product is hazardous
or cancerous. The natural assumption would be that they
weuldn't want to ~ive information out that would support this
public medical opinion."'--t'"
Following its initial work with ADL confirming the
findings of wynder, et al., Liggett entered into a long-term
c~!laDoration with ADL, which eventually resulted in two
preduct developments: (I) The Lark charcoal filter, and (2)
the -X/k" Palladium cigarette. Liggett hastened to rush the
forme: to the market, proclaiming its purported health
benefits. Prompte~ by the concerns of its ~aw~,ers and the
retaliation which it feared by its competitors, Liggett
abruptly abor~ed its plans to market its patented
cigarette. See pp. 216 to 247
95.
Footnote Continued From Previous Page
System Containing Tetramethyluric Acid" in the Decembe:
1963 issue of Analytical Chemistry. See "$u.ntmary of
Topics Discussed at February, 1964 Research Management
Conference," February 5-6, 1964 (~C 602~549: 65005
2~ii). TaD 14 at p. 150.
Id. at 62-3 (emphasis added).
G~I,S ,-~3G2
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b. Reynolds
According to M:. HorTigan, Reynolds does "no research
[on tobacco and health] in-house."'--~'" According to Dr.
DiMarcO, Reynolds has left research into the "allegations of
health hazards" attributed to cigarettes entirely to CTR.
Despite this testzmony, Reynolds' inhouse research activities
were more extensive than these witnesses were aware of.
Thus, Reynolds confirmed the presence of many
constituents of smoke which are reported in the scientific
literature; others it has no~.'--z'" In fact, Drs. Alan Rodgman
and Law:once C. Cook car:led out extensive in-house studies of
:he co~poslt~on of tobacco smoke. They confirmed the presence
of BAP in cigarette smoke as early as 1956,'"°~ In addition,
according to an interna~ 1959 Reynolds memorandum:
Some thirty-odd polycyclic hydrocarbons
have since been similarly characterized in
these laboratories. Of these, eight are
carcinogenic to mouse epidermis.
Cholan~hrene, a potent Carcinogen, is one of
these not yet reported by other
investigators. In Amril of 1959, the firs~
positive isolation and identificaz~on of
97.
99.
I00.
Hocri~an Dewey Depo. at iii.
DiMarco Browner Depo. at 32.
Colby Barnes Depo. at 308-09.
Memorandum. A. Rodgman to K. Hoover, Oc=ober 29, 1959
(50094
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3,4-benzpyrene, citing data similar to ours,
was reported by other investigators.~r~
Thus, Reynolds identified BAP in cigarette smoke three
years before the ~irst published confirmation of its presence,
and, as of 1959, had detected "a potent carcinogen,"
cholanth[ene, which no other researcher has reported to date.
In a late~, unpublished paper, somewhat innocently entitled
"The Composition of Cigarette Smoke - Some Minor Components ef
the Neutral-Acidic Fraction,"'~:~ D~s. Rodgman and Cook
reported their isolation and identification of no fewer than
fo:ty-feur PAHs and noted that "[j]ust under one hundred
po!ycycl~c aromatic hydrocarbons have been reported [in the
literature] as components of tobacco smoke."
Furthermore, "way way back," according to Dr. Co:Dy,
Reynolds attempted to remove from smoke certain of the
substances identified as "~he precursors of the bad guys" by
Dr. Wynder, but even Dr. Wynder discovered that this "remedy of
all remedies was no remedy whatsoever.°'~'" The end result
on the skin painting tests was the same because when he removed
I01. !d. (emphasis added).
102.
A. Rodgman and L. Cook, "T~e Composition of Cigarette
5~oke - 5ome Minor Components of the Neutral-Acidic
Fraction" (50152 5285). Tab 57.
!03. Colby Barnes Depo. at 345-46 (p[o:ected pcr:Lon).
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the precursors, he also r~moved t~e constitutents which are
antica[cinogens.'°'~
unpublished paper by Rodgman and Cook, in which they observed
that "polyzyclic aromatic hydrocarbons are not an inherent part
of tobacco," and reported that their inveszigation had led them
to conclude that "the saturated hydrocarbons, solanesol, and
Bositostet01 in tobacco may definitely be considered as
precursors of the polycyclic aromatic hydrocarbons in tobacco
smoke."~:~" Further, Reynolds appears to have developed a
method fc: removinq the precursors of the ~AHs from tobacco.
An Oc=o~e[ 2g, Ig5g memcrandum from Dr. Rodgman to Mr. Hoover
discusses four possible techniques, and re~orts that one of
these, an "extrac=ion process," "has dis~in¢~ advantages over
~he other four approaches since it provides a scheme whereby
the major polycyclic hydrocarbon precursors can be removed from
the tobaczo. We have, in fact, applied for a patent on the
removal of the precursors."~=~ Dr. Rodgman continued:
The scheme under consideration would
oreatly reduce the po!ycvclic hydrocarbons
105. A. Rodgman and L. Cook, "The Composition o~ Cigarette
Smoke - Precursor Studies" (50!52 5257). Tab 5~.
106. Memorandum, A. Rod~man to K. Hoover. Oct. 29, 1959 (50094
59~i) (emphasis added). Tab 5~.
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in smoke. The flavoc of the smoke should
not be adversely affected but i( it is the
addition of sultable flavorants to the
pretreated tobacco should restore the
desired flavor. The physiological
requirements of the smoker with respect to
nicotine can be met by the reapplica~ion of
the optimum amount of nicotine to the
extlacted tobacco./-~-~z
Reynolds did not implement this process.
Of the substances known to be present in cigarette
smoke, Reynolds acknowledges that BAP and nitrosamines are
carcinogenic to animals but believes that "that doesn't mean
anything."'~'~ In the opinion of Dr. Colby, mice expeziments
"are scientifically 100% invalid,"'°'' and all the
epidemiologica! studies flawed,''=~ While acknowledging that
PAHs are carcinogenic to animals under experimental conditions,
Dr. Colby is of the view that they are "probably not" in
107.
i08.
i09.
Ii0.
!ii .
i_.~d. The cited document appears to be the only clue thus
far in plaintiffs' possession concerning Reynolds'
hexane-extraction process. No document produced by
Reynolds alerzs plaintiffs to the company's decision not
to implement the process commercially and not to complete
U,S. registration of the patent.
COlby Barnes Depo. at 361-62.
I00 -
'[Ii
~onpo~d (o~oeqo~-uou) o~ Pg~3~TI q~Jee~gJ
ue~nq 90 sanss~ o~ 5uT~eIa: qD~easa~ l~Tue asnoq-u~ Aue ~no
a6gi~^~a ~ua3ID-Xau]o~y
~Dnpo~ M~oM Xau~o~y
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impact of health claims on effect of environmental smoke on
nonsmokers.-~'''
c. Philip Morris
Philip Morris' research activities were comparable to,
but far more eztensive than, those of Reynolds. In-house,
Philip Morris has done research into identifying the components
of smoke. On Sune 7, 1955, Edward R. Murrow ~resented a film
clip shot at "the Richmond laboratory of one of the major
produce=s" featuring Dr. Robert N. DuPuis, chairman of TIRC's
"industry technical group." Dr. DuPuis acknowledged PM's
constituent work and offe:ed worried smokers a comforting
message:
Our primary objective is to analyze all
of the components of smoke. Of course, we
do a great deal of research on analysis and
technology of tobacco itself. But even if
we knew all of the components of tobacco, we
still would not know the components of
smoke, and since smoke is what we sell, we
feel that we should emphasize this phase of
research.
Afte~ we have produced the smoke and
separated i~ in:o f~actions, the nex: step
is to identify these fractions. These are
then identified either photographically or
on the oscilloscope.
The oscilloscope is now demonstrating
the means of identification of one of the
smoke components. Using these instruments,
1!4. Quarterly Research Report, Division: Analytical
Resea:ch, March 3", 1978 (50088 7556). Ta~ 56.
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z~.
<
2.
we have isolated and identified some three
dozen components Of Smoke. Many more will
be identified. As we find these components,
we ~ublish the results of our work in
technical journals whlch are available to
aOy sclentist in any part of the world.
So far we've found none that give us
~.ny cause for concern. If we do find any
that we consider harmful, and so far we have
Dot~ we'll remove these from smoke and still
retain the pleasure of your favorite
The evidence which plaintiffs have does not reveal the date
when Philip Morris confirmed the presence of BAF in cigarette
smoke. PM's e~orts, however, di~ resul~ i~ the
"identification or isolation of some animal carcinogens,'' ''"
including BAP,!-~-" but it has not researched whether any
other components of tar are tumorigenic to the backs of
mice.'~'" PM also "look[ed] at precurso~
relationships.-'~-L~-2-~
115. Transcript Of Edward R. Murrow's Second TV Sho~ On
"Cigarettes And Lung Cancer," June 7, !955, at p. 7
(emphasis added) (CTR ~9~2; 65008 333~: Gertenbach
Duke/~oqers Ex~. 14-C). TaD
ll~. 0sdene Cipollone Depo. at 75.
117. ~d. at 79.
I18. Id. at 87-8.
1!9. [d. at 64.
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Philip Morris claims to have conducted no in-house
hlological research, except for ~ome Ames mutagenicity
work.'~ It did fund outside biological research with
Biolesearch Consultants (mouse painting), INBIFO (rat
inhalation), IROC and Wynder's American Health Foundation
(hamster inhalation), and Hazleton laboratories (monkey
~nhalation).~--i-~ A
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Like the other tobacco companies, Lorilla~d conducted
~esea~cn on the isolation and identification of the components
of tobacco smoke and "probably" did this work "because of the
publications that had appeared [in the l~50's] relative to some
components of tobacco smoke with respect to activity in
bioassay systems .... ''~ Ultimately, Lorilla~d
"obtained spectral properties which were consistent with those
o~ BA? .... "'~" Lorillard acknowledges that BAP will
produce mouse skin papallomas when applied in sufficient
concentration,'-d-l~ but no~ in the concentration found in
cigarette smoke.:z'z
Loriilard's early analytical work with the components
of smoke related, in part, to its interest in filtration as a
method of altering smoke composition because those at Lorillard
responsible for research "were obviously awa=e of the
publications and one could reasonably ~elieve that
fil~ration in part could have had some health connotations in
their minds."' :'~ Specifically, Lorillard attempted to
125. S~ears Depo. at 23.
Lori l!a:d.
126. Id, at 25.
127. Id. at 27.
12S. ,~d. a'. 28.
!29. !d. az 47.
Dr. Spears is the chief scientist
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reduce the amount of BA? in cigarette smoke "since it had been
alleged by some that this was a component of tobacco smoke that
was importan~ in the production o~ tumors in mouse
skin."'--Lz~ According to Lorillard, however, it never found a
"practical" method of reducing it and became convinced that it
was n~ "a ma~or factor in the development of tumors on the
backs of animals."~-L-Lz
After its work on BAP, Lo=illatd studied phenols, and
other components of smoke, and -how you might effect the
proper=ies of tObacc= smoke with respect to the bioassay system
that wynder had talked abou~ with respect to mouse
skin.":'~ Lorillard eventually created a filtration syste~
which removed some of the phenols in a commercial
Lorillard also employed outside laboratories,
including the Armor Research Foundation (mouse skin-painting)
and Dr. wynder°s f~ci!ities (also skin-painting).'''z
Lorillard worked wi~h Professor Dolham~. of Sweden concerning
131. Id. at 29-30.
132. Id. at 104.
133. Id. at 105-06.
~3~. LJ. at 50,
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respiratory tract defense mechanisms and published a number of
papers with him,' '~ and in the mid-sixties, it did
mouse-skin work with Bioresearch Consultants
8oston./-Lz~ It also worked with Battelle in the late sixties
attempting to ~evelop a fiber-optic "to look at c~liary
activity in dogs" and to evaluate filters./-LI~
Lorillard made a submission to the original Surgeon
General's Advisory Con~ittee,'''~ and believes that this is a
public document.' ''~
Dr. Spears testified that he does not know how to
design an animal s:udy capable o~ convincing him tha: smoking
causes lung cancer, since, "if we had that information, we
would probably De at the stage of curing this disease."''°~
Dr. Spears, however, elaborated on some of the elements of
prDof that are essential:
i) Relevant animal studies which were free from
known
2) Human type lung tumors, path~logicalIy in numDers
tha= are significant;
136
137
138
139
140
I__d. at 136.
Id. at 147.
Id. at 174-75.
Id. at 150.
Id. at 151.
Id. at 278-~i.
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3) Assurance that factors that influenced the
disease, such as viruses, were not playing a role;
4) Animal must be reasonably relevant to human
beings in terms of metabolism and activation o~
carcinogens;
5) Immune system that is similar to human beings;
6) Understanding of the detailed mechanisms by which
the disease occurred, including DNA damage; and
7) Distinguish development of acute diseases in
which epidemiology can be relatively convincing
and chronic diseases in which it is not.'~ ~
e. American
Ve[y little is known a~out ~erican's research
activities as they may relate to smoking and health. American
established a Resea:cN Department in 1911, and since 1920, its
Richmond Research Laboratory has had "a continuing study of the
components of tobacco and tobacco smoke."-u~-~z This research,
however, was not connected with the issue of the health effects
of cigarette smoking./'/-l~ In addition, in the early 1940s,
A~nerican conducted a study of mice exposed to whole
141 .
142 .
143 .
!44.
Heimann Flynn Depo. at i01. "Some" o5 this was
published. Heimann ~ Depo. I at 137.
Heimann Flv.~__.~n Depo. at i0!-02.
Hei,~ann Roce,-s Depo. I at 32-33.
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smoke.'''' This may have been done at the Medical College of
virginia.''~
Independent of its Research Department, Mr. Heimann
particpated in she last two parts of a five-party
ep~demiological study of American's own employees. The five
parts were described as follows:
I. born and Baum (NIH) studied the mortality rates
during the period 1946 to 1952
employees, This was published in 1955 in the
Journal of Industrial Medicine and Surgery.
2. A. Finkner (UNC) s~udied the smokin~ habits
these same employees, and published his results
in the "North Carolina Mimeo Series" in the late
1950s.
3. Haa~ (MCV) and HanmeI (A$~eric~n) updated the
Dorn-Baum study of mortality rates for the period
1953 ~ 1956, This was published in about ~958
in the Journal of I~dustr~a! Medicine and Surgery.
Cohen (American consultant) and Heimann updated
the mortality rates for the period 1957-1960.
The study was entitled "Heavy Smokers with Low
145. Id. at 103.
Heimann Flvn__.__~n Depo. 7, 45-4£,
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Mortality" and was published in 1963 in the
Journal of Industrial Medicine and Surgery.''''
5. Cohen an~ Heimann published "Heavy Smokers with
Low Mortality and the Urban Factor in Lung Cancer
Mortality" in
In general, it was American's policy "to leave medical
research to institutions other than the company." The evident
=ationale is that American's laboratory was not equipped to do
such research and its personnel were not qualified,/-Lzt
2. TIRC/CT~'s Failure to InvestiGate
Plaintiffs' Contentions
in 1954, five of the six cigarette manufac:uress
announced the formation of the Tobacco Industry Researc~
Committee ("TI~C'). This entity was formed for the purpose of
funding independent research into smoking and health issues.
Indeed, TI~C was the vehicle intended to facilitate research
necessary to resolve the "open questions" concerning smoking
and health. To accomplish that purpose, the TIRC es~aDlished
an "independent" Scientific Advisory 8oard ('$A8") consisting
147.
148.
149.
Heimann Flvnn Depo. Ex. RKH-2.
Heimann Flvn_._~n Depo. Ex. RKH-~.
Heimann Ro~e:s Depo, I at 134; Heimann Ro~ers Depo. II at
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of eminent scientists to screen applications and recommend the
funding of "independent" ~esearch.
At least that's wha[ the tobacco companies say. In
fact, TIRC's mission was more aptly described in 1954 by the
first SAB Chairman, Dr. Clarence Cook Little: "[T]o build a
foundation of ~esearch sufficiently strong to arrest continuing
or future attacks" on t~bacco. Moreover, one of T[RC's
principal activities from 1954 to 1958 and thereafter was as a
public relations vehicle for the tobacco industry in
interviews, speeches, and testimony before Congress, the FTC
and in court.
Nor can ~he activities of TIRC/CTR be fairly
characterized as funding independent research into smoking and
health issues. As Dr. Little confirmed in 1960 in the La:tique
trial, CTR's research grants were directed at issues remotely
related to cigarette smoking. Similarly, company documents
explicitly challenge the relevance and quality of CTR-funded
research.
The failure to support relevant research is not
surprising. SAH members were not only paid by the tobacco
companies, but they (or the institutions with which they were
associated) were principal beneficiaries of CTR research
grants. In addition, far from being independent, CTR and SAB
activities were monitored and controlled by industry
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representatives, including tobacco company lawyers. Indeed,
the law~,ers designed "special projects" for litigation
purposes, stoppe~ central nervous system research proposals,
and screened out "dangerous project- proposals.
Suooortinq Kvidence and Documentation
i. TIRC's Public and Private A~endas
Confronted with the public's alarm over the evidence
tending to incriminate tobacco, the industry established the
TIRC in January 1954. At the time of its formation, the
public!y-avowed purpose of TIRC was "to aid and assist research
into tobacco use and health, and particularly into the alleged
relationship between the use of tobacco and lung cancer, and to
make available to the public factual information on this
subject.-/-/-z~
On June 15, 1954, T~RC held a press conference in New
York City during which its first Scientific Director, Dr.
Clarence Cook Little, issued a prepared statement and fie!de~
questions from members of the press. In his statement, Dr.
Little expounded upon his philOSOphy and that of TIRC's
Scientific Advisory Board ('tAB'):
150.
"Statement Concerning The Origin And Purpose Of The
Tobacco Industry Research Committee And Its Proposed
Functions," January 25, 1954 (1003040088; PM 770 seE).
TaD 63.
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[T]he members of the Scientific Advisory
Board of the Tobacco Industry Research
Committee conside~ the investigation of
tobacco in relation to health as ~
non-controversial field in which the sole
interest of the scientists serving on the
Board is to discover facts and to utilize
these facts constructively and for the
purpose of increasing human welfare ....
we have no axes to orind and do not intend
to be critical o£ the efforts of others.
I hope all of you will realize that you can
perform a very real service by minimizin~
the controversial aspects of any basic
research which is attempted, and that if you
maintain an inquiring and open mind - as we
hope to - a great deal can be accomplished
over the years.
when answe:ing the reporters' questions, Dr. Little
revealed that he did not come to his new assignment with an
entirely open mind:
I am ultraconservative about cause and
effect relationships. I have seen too many
conclusions drawn that tend to smother
further study. I just want to know mo~e
about it than is now known.
I don't feel that it is a proven cause
and effect relationship. Now, whether
will be or not is in the future.
151.
"Statement Of Dr. Clarence Cook Little, Scientific
Director, Tobacco Industry Research Committee, At Press
Conference, University Club, New York City, June 15,
1954" (emphasis added). (CTR 3884; 65008 3286;
GertenDach ~uke/Rogers Exh. 14). Tab 71. See also, TIRC
Press Release of June 15, 1954 announcing Dr. Little's
appointment as Scientific Director (CTR 3324:65008
5008). TaD 72.
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QUKSTION: Do you feel that substantial
evidence points to a relationship between
cigarette smoking and lung cancer?
DR. LITTLE: I am not convinced of that.
DR. LITTLE: I am not 6onvinced that
the evidence is satisfactory to claim a
cause and effect relationship.-u!-~
On July i, 1954, T[RC announced appointment of its
first full-time chairman, Timothy Ha~tnett, retired president
of Brown & Wil!lamson.'~-LLlz Although TIRC had not as yet
awarded even a single grant, it nonetheless included a
reassuring message to the smoking public from Mr. Hartnett in
the press release announcing his appointment:
It is an obligation of the Tobacco
remind the public of these essential points:
i. There is no conclusive scientific
proof of a link between smoking and
cancer.
2. Medical research points to many
possible causes of cancer.
Statistics indicating a relationship
between smoking and disease could apply
with equal force to many ocher aspects
of modern life.
152 .
Press Conference of the TIRC, June 15, 1954 (emRhasis
added) (CT~ 3887:~5008 3288; GertenDach Duke/Ro~ers Exh.
14-A). Ta~ 7].
Hartnett was merely the first of several retired industry
chief executives w~o received sinecures az TIRC/CTR.
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2. Full evaluation of statistical
Studies now under way is impossible
until these studies have been
completed, fully documented and exposed
to scientific analysis through
publication in accepted journals.
4. In their recent preliminary report
to the American Medical Association,
the American Cancer Society and its
statistical research staff placed
careful qualifications and limitations
on their findings relating to th:s
subject. These qualifying statements
should not be overlooked.
S. The millions Of people who derive
pleasure and satisfaction from smoking
can be reassured that every scientific
means will be used to oet all the facts
as soon as possible.~-LI/~
Few at the time would have predicted that the industry's
position would remain unchanged for tNe next thirty years.
TIRC issued another press release later in the same
month in which Dr. Little stated that "[i]n order to find
154 .
TIRC Press Release, July I, 1954 (emphasis added) (CTR
3328:65008 5012; Gertenbach Duke-Rogers Ex~. 13). Tab
74.
The TIRC had issued an even earlier press release ('Many
noted doctors and cancer research authorities deny that
there is any proof establishing a link between smoking
and lun~ cancer . "). TIRC Press Release, April 14,
1954. (CTR 3316; ~5~08 5000; Gertenbach Duke/Rogers Exh.
13). Tab 75. This press release preceded the ~ormation
of the SAB by nearly two weeks. See TIRC Press Release,
April 27, 1954 (CTR 3320; 65008 5004; Gertenbach
Duke/Rogers Exh. 13). Tab 76.
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conclusive facts . . .', the SAB had adopted a three-fold
research policy . . .:
I. Study of the physical and chemical
composition of tobacco and accompanying
products.
2. Study of tissue changes in humans
and animals under various conditions.
3. Study of smoking and other tobacco
habits and of the emotional and physical
make-up of smokers. ' ~ ~ /
The "Confidential Reports" of the T~RC meetings,
however, revea~ an agenda al~,ogether different from tha=
presented to the public. On October 19, 1954, for example, Dr.
Little advised TIRC's membership concerning the SAB's
"viewpoint':
He declared that both he and the
members of the 8oard were awace of the
attacks which had been made on tobacco for
over 200 years, and wished to build a
foundation of research sufficiently strong
tO arrest, conti~lu'inq or future attacks.~
In Short, Dr. Little and his colleagues in the SAB
viewed their mission as one designed to build an exculpatory
record to benefit the indus=ry's defensive efforts: to create
the "open question."
155.
156.
TIRC Press Release, July 28, 1954 (CTR ~332:65008 5016;
Gertenbach Duke/Roqe;s Exh. 13). Tab 77,
Confidential Report, TIRC Meeting, Oc=obe: 19, 1954
(emphas:s added) (CTR 6204; 65008 1364: Ger~enbaCh
Duke/Ro~ers EXho IIC). Ta~ 75.
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2. TIRC/CTR's Public Relations Function
During TIRC's January 20, 1955 session, its Executive
Secretary, W. T. Hoyt, presented a formal "Statement"
describing "the two major purposes foe which the Committee was
organized" as "t~e public relations phase and the research
program.''''" Mr. Hoy~ repeated that characterization of
T:RC's purposes in a Statemen~ which he delivered during the
TIRC's April 28, 1955 meeting and added that:
Our job is to maintain a balance between the
two, and to continue to build soundly so
t~at at all times Research an~ Public
Relations Complement each other. In that
way we intend to assume the mantle of
leadership and, ultimately, to create a
condition where the public will look to the
T~RC for answers rather than to others.
TIRC faithfully discharged its public relations
function, serving as the primary vehicle for the industry to
communicate the "open controversy" ~osition. In this effort,
T:RC was assisted by Hill & Knowlton, which served as
public relations advisor f~om 1954 to 1964. Representatives of
Hill & Knowltcn attended all meetings of ~he SAB from
157.
158.
Confidential Report, TIRC Meeting, January 20, 1955
(emphasis &dde4) (CTR ~206-A; 65008 i~67 at CTR 6211;
6500B 1372~ Ge:tenbach. Duke/Roqers ~xh. If-D). Tab 79.
Statement by The Executive Secretary, TIRC Meeting
April 28, 1955 (emphasis added) (CTR 6229; 65008 1390
1392; Gertenbach Ouke/Ro~ers Exh. if-E). Tab
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inception until 1964, as they did all sessions of the TIRC
itself (and as did the industry's lawyers). At each of TIRC's
sessions, Hill & Knowlton presented a written public relations
report that appea~s to have enjoyed equal prominence with the
scientific repot.is delivered by Dr. Little at the sessions.
Dr. Little was TIRC's primary exponent, and delivered
dozens upon dozens of speeches and written statements airing
the industry's position on smoking and health issues and
a:tacking the ever-mounting body of scientific work tending to
establish the causal connection between smoking and human
disease.~'/ A few examples will suffice.~/-~-z/ On May 16,
1955, Dr. Little met with science writers at T!RC's offices to
offe: a "Report on Progress'. His remarks were later printed
and distributed.~/ In his report he stated:
The facts today make clear that there
is no single or simple answer to the lung
cance~ ~roblem. Science has not yet found
the cause or causes for lung cancer, nor
indeed for any type of human cancer.
159 .
160 .
Dr. Little died in December, 1971 at the age of 83 [(see,
CTR Minutes Of The Second Annual Meeting Of Members,
January 28, 1972 (1002907641), Tab 87], and was still
serving as Scientific Director at that time.
A reasonably complete set of the public utterances by Dr.
Little and his TIRC/CT~ colleagues is gathered at TaD
88. All of these documents have been produced to
plaintiffs by one or more defendants.
161. "A Report of Progress" (CTR 3961; 65008 3~62). Tab 89.
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On June 7, 1955, Dr. Little appeared on Edward R.
Murrow's "See It Now" television show.''---~z He was asked:
"[H]ave any cancer-causing agents been identified in
cigarettes?" He replied: "No. None whatever, either in
cigarettes or in any produc: of smoking, as such.
Dr. Little's answer was disingenuous, at best,
About a year earlier, during the July 19, 1954 SAB meeting, Dr.
Li:t!e reported on Dr. Rand's recent discovery of BAP in the
smoke from regular cigarette pape~ and the SAB urged that Dr.
Rand be held in check.
Doctor Little explained that James Rand, 3~d
of Cleveland is prepared to attack ciqarette
pa~er as containinq a carcino@en. The Board
expressed itself as Believing that full
publication of data or its analysis should
precede any statements in the press which
may be presumed to be dependent u~on
scientific data. Doctor Kotin was therefore
asked ~? ~ersonallZ visit with Mr. Rand at
the earliest possible minute to examine his
findin.~s. Docto: Little is informing Mr.
162.
163 .
164 .
This was the second "See It Now" program. The first was
aired on May 31, 1955.
Transcript Of Edward R. Murrow's Second l'v Show On
"Cigarettes And Lung Cancer," June 7, 1955 (emphasis
added) (CTR 29~; 6500a 3~3: Ger~en~ach Duke/Ro~ers Exh.
14-C). Tab
BAP had been demonstrated to be carcinogenic to human
beings as early as Percival Pozts' English chimney
sweeps.
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Rand of this and asking him to refrain from
any public announcement until after Doctor
Kotin has explored Rand's findings. Doctor
Little will contact Mr. Rand and advise him
that Doctor Cattell will chairman a
sub-committee to investigate Mr. Rand's
data.''~
In addition to commenting on TIRC activities, Dr.
Little also attacked industry critics. For example, Dr. Little
authored an article appearin~ in The Atlantic entitled "The
Public and Smoking Fear -- Or Calm Deliberation," in which he
attacked "the A~nerican School of cigarette theorists," the
American Cancer Society, and "ardent laymen and some already
165.
Confidential Report of SAB Meeting, July ig, 1954. (CTR
2621; 65008 17~0; Gerten~ach Duke,'Roge~s Exh. 12-A-l).
TaD 82.
At the next meeting of the SAB, held on August 15, 1954,
Dr. Cattell re~orted briefly on his investigation into
Rand's work. Confidential Report SAB Meeting, August !6,
1954 (CTR 2625; ~5008 17B4 [?]; Gertenbach Duke/~ogers
Exh. 12-A-2). Tab B~. During the SAB's Octobe~ 17-18,
1954 meeting, Dr. Cattell presented his conclusion
(shared by Drs. Ketin and Reimann) that "the temperatures
and the amount of air used by the Rand scientis:s in
their studies was subject to severe criticism and they
would expect benzpyrene would De produced by the use of
such methods." Con~identia! Re~ort SAB Meeting, October
17-18, 1954 (CTR 2634; 65008 1793; Gertenbach,
Duke/~og~rs Exh. 12-A-4). Ta~ 84. The Rand report was
later "Driefly" discussed during the SAB°s meeting of
June 26, 1955, the minutes of which report that "Dr.
Cattell declared it is not a scientific report and
therefore he is unable to judge whether it contains sound
subject matter or not." Confidential Report SAB Meeting,
June 26, 1955 (CTR 2664; 65008 1823; Ge:tenbach
Duke/Rocers Exh. 12-~-5 at 4). TaD 85.
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convinced scientists [attempting] to activate debate and
controversy with those who desire further information before
they feel ready to take the trip to Canosa.
Others also helped execute the public relations
function.'~-t~!" In July, 1957 the Surgeon General announced
that BAP had been found in cigarette smoke. The TIRC responded
with a press release setting forth a statement by Dr. Hockett:
The question of the presence of
benzpyrene in tobacco smoke has been under
investigation for a number of years, and it
has been widely discounted as a significant
factor in connection with lung cancer by
scientists familiar with the work.
166.
167.
C. Little, The Atlantic, "The Public and Smoking,"
undated (CTR 4015~ 65008 3416; Gertenbach Duke/Rogers
Exh. 14-M). Tab 90.
E.c.: TIRC Press Release, April 14, 1954 (CTR 3316;
65008 5000; Ger~enbach Duke/~ogers Exh, 13); Tab 107;
TIRC P~ess Release, undated (CTR 3345; 650~8 502~).
108. (denouncing book as "just another propaganda device
i~ the anti-tobacc~ crusade which the author has bee~
carrying on fo~ yea~s') Ta~ 108; TIRC Press Release,
"DOCTOR'S SURVEY TERMED 'BIASED,' SAY5 KARNETT,° Ju~e 6,
1955 (CTR 3371; 65008 5054; Gertenbac~ Duke/Rogers Exh.
13). Tab 109. TIRC Press Release, "KARNETT ALERTS
BURLEY MEN TO CHALLENGE TOBACCO ATTACKS," June 13, 1955
(CTR 3374; 65008 5057; Gertenbac~ Duke/~oqers Exh. 13).
Tab ii0. TIRC Press Release, "BRIGHT BELT WAREHOUSEMEN
TOLD FACTS CHALLENGE CRITICS " June 27, 1955 (CTR 3376;
65008 505@; Gertenbach Duke/Rogers Exh. 13). Tab Iii.
TIRC Press Release, "TOBACCO SPOKESMAN SAY5 FACTS AND
POSITION ARE UNCHANGED," July 31, 1958 (CTR 3480; 650C~
5162). Ta~ 112.
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Dt. E. L. Wynder of Sloan-Kettering
Institute, a leading proponent of the
cigarette theory of lung cancer, reported
only this year that "The benzpyrene content
of tobacco tar is not more than 2 pazts per
million which, according to our experience,
is not sufficient to produce the type
activity noted in our animals painted with
tobacco
This substance, in its pure form, has
never been shown to be cancer-causing to
man, and it induces cancer only on certain
types of laboratory animals, such as mice,
and not on others.
The substance frequently is produced in
minute quantities in the burning of any
organic compound and is present in varying
degrees in city air. Recent reports in
England show that the daily intake of
benzpyrene from breathing London air is
equivalent in total volume to the intake
from smoking about I00 cigarettes a
The public relations function of TIRC/CTR extended to
its professedly sacrosanct Scientific Advisory Board. During
the SAP's meeting of August 20-21, 1957, for example, "[i]t was
suggested . . that consideration should be given to a
broadening of studies to de~ermine other factors which migh~ be
suspected to have a role in the pa:hogenesis of lung cancer and
perhaps the enlistment of other industries thus
168 .
TIRC Press Release, "Scientists Commen~s On Benzpyrene
Report," July 15, 1957 (CTR 3442; 65008 5124; Gertenbach
Duke/Ro e~_i.~ Exh. 13). TaD l!3.
-(p~p~ s3s~qdu~) ~ ~e "~I
"ILT
'OLI
"69T
~OS [p]BuII~no. 5uT~aaw t~6I "6 :~q~^ON ~.~¥5 aq~ ~o
~o dno~5 ~ q~m ~m~ ~S ~q~ ';~el sq=uo~ mB~ V
~^3~3so~. ~o) qm~e~s ~3 u~ u:~l ~YS eq~ P3P ~eqM
p~eo~ X~o~3^p¥ aq~ ~o Aa~Io~ uo~o~u~ ~q= ~eq~ uoiu3~o
p~ssm~dz~, pue ,rT-~.q~le~q pue omm~qo~ 5uiu~amuo3 ~u~a~e~
uo p~Deld Xl~uanb~) s3s~qdw~ anpu~, uR q~Im
l~eP
pue o~qo~ bu3u~ouo~ uoi~o~uI BIq~Bs~e pue a~eu3p~oo~
aSalI^I~d ~ua~ID-Xau~o~V
l~uap!3uoD
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Three groups of substances suspect as
cancer-causing have been identified in
tobacco smoke. They are the aromatic
hydrocarbons, the al~phatic hydrocarbons and
the polymers. The presence of and biologic
effect of some of these substances could
explain why smokers have a larger incidence
of all tumors than the non-smokers.
The factor of smoking in lung cancer is
"undeniably true" but the influence of place
of residence als0 is important.
Cigarette pager contains I00 times the
amount of 3, 4-benzpyrene than does the
equivalent amount of tobacco. Tobacco may
contain some inhibitors to benzpy[ene. The
"Rand Method" of adding ammonium sulfamate
reduced benzpyrene production in cigarette
page: burning from 250 micrograms to 2-5
micrograms.
As a chemist, he is upset because the
tobacco industry knows "so very little"
about what it is selling, He considers the
search for a single carcinogen "not a very
fruitful e~fort, since a number of
polynuclear aromatic hyd:ocarbons have been
identified in smoke and all of them may have
an effect. He believes there can be a
reduction in the produc:ion of these
substances to an extent that would delay
carcinogenesis among tobacco users "until
they reach the age of about 160," at which
time it wouldn't matter.
The French have done a number of statistical
inquiries that show a correlation between
tobacco consumption in definite relation to
the increase of lung cance~0 to an increase
of cancer of all sites and to ether
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ailments. They see no alternative to ~ivinq
these a causative interpretation.2--i~
Needless, perhaps, to say, TIRC did not issue a press release
concerning this meeting.
8y February 195B, i~ not earlier, SAB's public
relations function was causing dissent within the SAB. That
month, a member of the SAB wrote the Board a letter in which,
according to Dr. Hockett, he "objected to public statements
which had been issued, and indicated that unless a mo~e
distinct divorce could be established between the 5AB and TIRC
the member felt he could not continue to serve on the Board.
He was joined in this by two other Board members."''~"
This disquiet may have contributed, along with the
need demonstrated during the Ig57 hearings before the Blatnik
Committee, to the formation of the Tobacco Institute in January
1958. During the SAB's February 14-15, 1958 meeting, the SAB
was informed Dy Mr. Hartnett of the purposes of the
newly-formed Tobacco Institute. Accordin~ to the minutes of
that meeting, "Mr. Hartnett explained that Hill and Knowlton,
Inc. is acting as public relations counsel for both
172 .
173 .
Confidential Report SAB Meeting, November 9-10, 1957 (CTR
2726; 65008 1885; Gertenbach Duke/Rogers Eah. 12-D-4 at 4
and attachment) (emphasis added). TaD 115.
Confidential Report TIRC Meeting, May 8, 1958 (CTR 6329;
65008 1490; Gertenbach Duke/Ro~ers ~xh. l!-L). Tab 104.
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organizations. He pointed out the desirability of this from
both organizations" standpoint.''''"
Whatever Mr. Hartnett's reasons for regarding as
"desirable" Hill & Knowlton's role as public relations counsel
for both organizations, it is clear that the TIRC continued its
public relations activities. The minutes of the Tobacco
Institute's Executive Committee meeting of July 8, 1958, for
example, record that Bowman Gray, its Chairman, announced "a
tentative decision to let the matter ofthe respective
functions of the two organizations [The Tobacco Institute and
the TIRC] be decided upon a case by case basis under the
guidance of public relations counsel."~'~
Even after T!'s formation, the tobacco industry
continued to exploit T~RC/CTR at every turn in its campaign to
keep the -controversy" alive.''~ The TObacco Institute, for
example, urged CTR to distribute to "scientific advisory groups
and to their research grantees" reprints of industry
174 .
175.
176.
Confidential Report SAB Meeting, February 14-15, 1958
(CTR 2733; &5008 1892; Gertenbach Duke/Roqers Exh.
12-E-I, at 2), Tab If6.
TI Minutes of the Second Meeting of the Executive
Committee, July 8, 1958 (04209323). Tab 118.
E.g.: Memorandum from William Kloepfer, J~. to Members
of the Communications Committee, November 5, 1920
(T 26750); "Ad #i January 4, 1954 (T 25918). TaD 103.
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advertisements.'''' The TI Board of Directors also agreed to
investigate the "possibility of a film of Dr. Clarence Cook
Little discussing tobacco and health."j-/-£z
In 1960 the Chairman of T~RC reported to members of
the industry:
The staff of TIRC is constantly in
touch with Hill and Knowlton, Inc., and
consults on every phase of activity relating
to health matters, For example, it provides
speakers for plat~orms, ~elps anal~ze both
scientific papers and charges against
smoklng which appear in the public press,
and consults on statements which are issued
to inform the public.~''~
On April 28, 1960, Dr. Little addressed the Monroe
County (New York) Cancer Associa=ion, and TIRC printed and
diszributed copies of his speech,z-5~ Once more he
177 .
178.
!79 .
180 .
Memorandum from William Kloepfer, Jr. to Horace R.
Kornegay, December 8, 1970 (T 26829). Tab 105.
Minutes of the Tent~ Meeting of the [T.I.] Board of
Directors, January 25, 196Z (0~209026). Tab 106.
Memorandum f~om T, V. Ha~tnet¢ to Members of TiRC,
November 7, 1960 (1002607666; Cullman Depo. Exh. 6).
If7.
"A Brief Review of the Smoking-Lung Cancer Theory" by
Clarence Cooke Little, April 2~, 1960 (CTR 1303:65009
7264; Ge:tenbach Duke/Roaers E/h, B-B). Tab 92.
Tab
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proclaimed "the failure of all efforts to detect in tobacco
smoke any substance known to be carcinogenic to man."/-~-L"
After Hill & Knowlton ceased to serve as the SAB's
public relations counsel, one of its former employees,
Leonard 5. Zahn, was appointed as the SAB'S "Public Relations
Consultant" in September 1969'-LLL" and ~hereafter attended its
meetings.
Throughout TIRC's history, smoking critics accused it
and the industry of conducting a sideshow with smoke and
mirrors. In the March-April, 1958 issue of its "CA - Bulletin
of Cancer Progress," the AC$ commented on Dr. Little's (and the
industry's) tactics:
Dr. Little . . . is executing an ordered
delaying action in the cigarette-lung cancer
'controversy'
This tactical maneuver, which is apparently
agreeable to other members of the Scientific
181 .
182 .
NOTE: It is also the case, however, that in a 1957
article, E. Wynder and G. wright, Cancer, "A Study of
ToDacco Carcinogenesis, !. The Primary Fractions" (vol.
2, March-April 1957) (65009 1338; Spears Exh. I), Dr.
Wynder acknowledged that: "The benzpyrene content of the
total tar as well as of the active fractions is far too
low to account for the positive [mouse-painting]
results." Indeed, according to Dr. Wynder, "So far, no
carcinogens have Deen identified in large enough guantity
in tobacco tar or its fractions to account for the
observed activity." Tab 93.
Confidential Report SAB Meeting, September 12-14, 1969
(CTR 2933; 65008 2902: GertenDach Duke/Rooers, Exh.
12-0-3). TaD 119.
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Advisory Board, ~s to deny repeatedly . . . to
mislead the public . . and to convince the
trusting tobacco-consuming public of the
industry's eleomosynary, 'lasting interest in
people's health'
Commenting specifically on Dr. Little's Atlantic article, the
AC5 pointedly urged that ". [a] concerted educational
attack (is needed) that will rout the formidable force
executing ~he de]ayinq action and speed its spokesman on his
prophesied, [sic____~] inevitable, penitential "trip to
Canossa.-''~
In 1960. the ~erican Heart Association came out
against smoking. In an ar=icle entitled "Tobacco: More
Trouble Ahead," Forbes magazine discussed the industry's
response to this development:
[T]obacco men themselves concede nothing.
~esearch results they don't happen to agree
with can touch off feeli,gs of persecution
that literally approach paranoia.
Bitter Blow. More publicly, however,
the industry's chief tactic has been to turn
away sharp attacks with soft words - to
profess an open mind an4 to proffer a hea:ty
welcome to all researchers in the field.
Beyond question the American Heart
AssOCiation's decision to join the
anticigarette crusade, without waiting for
Quoted in attachmen:s to Le:~er from Richard
to James P. Richards [TI], Augus: !5, !958 (i0~5 036761)
(emphasis in orig:nal). TaD 91. Se,_~e tex~ accompanying
note , supra.
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further evidence, was a bitter blow. Yet
the Tobacco Industry Research Committee
reacted to the news in much the same way it
has reacted to all such developments in the
past decade - with a press release. Dr.
Clarence Cook Little, scientific director of
the TIRC since the industry set it up in
1953, issued yet another statement pointing
out once again, in temperate language, that
"the question of what actually causes the
origin or developeent of heart disease is a
mystery to scientists."
what the TI~C can afford to say
publicly is immeasurably complicated by a
factor that has nothing to do with sales
strateqy or scientific bias. At present,
about 20 law suits involvin~ damage claims
totalling millions of dollars are Dein~
p~essed against U.$. ciqarette makers. The
suits have been brought Dy smokers and the
heirs of deceased smokers claiming that
regular use of cigarettes had caused
permanent disability or death. Thus, any
TIRC spokesman who conceded the slightest
possibility that the product may be harmful
risks being hauled into court to testify
against the industry that Pays his, salary.
Negative Thinking. What can an
industry do when growing numbers of people
pecsist in saying that its chief product
kills its best customers? Two rather
obvious things, some observers say. First,
it could sgend heavily on oure research to
find out w~a,t, ~f anything, is in the smo~e
that is harmful to health and then devise
wa~s to filter it ou.~. S~cond, whi.le ~be
researchers a~e at work, and as a hedoe
against the possibility that there is a risk
and that nothing can be devised to reduce it
significantly., the tobacco comoanies might
look for alternative ways to make a livznq.
Thus far, the industry .in ~eneral has shown
little interest in doinc muc~ abou: e~ther.
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As for pure research, no one knows for
sure what indlvidual companies are doing on
their own. Beyond question, cigarette
makers know much more about the product than
they did ten years ago. They now know, for
example, that there are at least 337
separately identifiable chemical elements
and compounds, from acenaphtene to zinc, in
the mainstream of cigarette smoke.
But traditionally, tobacco research
Staffs have devoted their time to such
bread-and-butter tasks as crop analysis and
quality contiol. With the important
exception of work on new filters, however,
they seem to be doing pretty much the same
things today. "No company is working
specifically on the health question," says
President Joseph Cullman Ill of Philip
Morris. "we're trying to make a cigarette
that smokes mild and tastes good."
Collectively, the tobacco industry is
supporting some pure research. Iz is using
the TIRC tO bankroll independent
cigarette-and-health research by others.
But few outsiders are impressed by the
enerqy of the TIRC effort to date. In the
nine years since it was formed, TIRC has
@iven a little over $6 million in research
@rants. A,..sins~.e cigarette company can
easily spend twice that amount in a year
jus: to launch one new brand in the national
market.'''
A more recent student of the industry concluded that:
The Tobacco Research Council and its grants
to medical researchers was to be a linchoin
in the industry's strate@y to delay
substantive regulatory actions based on the
argument that conclusive evidence did noz
Forbes, "Tobacco: More Trouble Ahead" (July 15, 1963)
(Barnes-Selected RJRT ~ocument; 502Si ~22) (emphasis
added). TaD 94.
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e.ist linking cigarettes with disease, and
that further evidence was needed.''~
The industry, moreover, has admitted as much. In a memorandum
from Fred P~nzer to Horace Kornegay, May I, 1972, the "holding
strategy" is discussed.''*z
3. TIRC/CTR's Research Function
In his Lartique testimony inf960, Dr. Little
described TIRC's research agenda. He testified ~hat TIRC had
conducted no studies of tobacco smoke because it had never been
proven to be carcinogenic. He viewed such a study a waste of
time. Similarly, D~. Little refused to conduct animal
experimentation because he be!ieve~ that it was only relevant
for animals, not human beings. Finally, TIRC did not sponsor
epidemiological studies.'''~
185 .
186 .
187 .
J.B. Tye, "A Note on Public Policy Issues in the
Cigarette Industry," April 15, 1985, p. 5 (emphasis
added). Tab 95.
Memorandum from Fred Panzer to Horace R. Kornegay, "The
Roper Proposal," May i, 1972 (T 0020999). Tab 96. This
memorandum is discussed more fully in the Overpromo~ion
section of this Report.
Se__~e Summary of Trial of Lartiqu? at 38-39, September 18,
1985; Lartique transcript at 2755, ~856 and 2865. Note,
however, that TIRC's first major study was a dog
inhalation study. See SAB meeting, JanuaIy 16, 1955 (CTR
2644; 65008 1803). Tab 69. See also Ger~enbach
Duke/~oqers Kxh. 12-B-l. Tab 70
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TIRC's tunnel vision may have contributed to Liggett's
resistance to the repeated efforts by ot~ers in the industry to
enlist its support, although Liggett was a member of CTR for
approximately four years.'''~ At the time that Liggett
joined TIRC/CTR, ADL'S Dr. Kensler adwised Liggett that "I hope
that you will encourage them to encourage their ~rantees to
look beyond the convenient negatives.''~''" William Bates,
Jr., who was employed by Liggett from dune 1950 until 1975 and
who eventually served as its Directo~ of Research, and his
~redecessor, DE. Da;kis, both believed that CTR work with
respec: to cancer was ineffective: "[A] directed problem
solving resea:ch program is more effective than making many
small individual grants to people."''°z Dr. Bates' colleague
at Liggett, D:. James Mold, was also critical of the usefulness
of CTR's work, feeling that "this was a wasteful expenditure of
money, as the grants were on rather specific small kinds of
topics," rathe~ than focused upon fi,ding "a solution" to "the
188. From March, 1964 until approximately January, 1968.
Se_._~e,
March 5, 1964 (1002608401) and Confidential Report
CTR, January 34, 1968 (i0026082~7). TaD i00.
IB9 .
Letter from C. Kensler to w. Bates, Jr., May 25, 1964
(Kensler gi~o~lone Exh. 22 ~NOT in JDR&~'s possessionS).
!90. Bates Depo. at 67.
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proDlem of whether cigarette smoking was contributing to cancer
in ~a~.
Little himself faulted the CTR grantee system as
early aS 1958.''~/ And the TIRC members were at times
critical of CTR/TIRC's research program. On June I, 1970, for
example, Addison Yeaman, general counsel of Brown & Williamson,
complained to his counterpart at Reynolds, Mr. ~amm, that
[O]ver the years the CTR's grants have
produced some "good science," but science
which has not provided us with either much
material useful on the offensive, nor much
that was very meaningful on the
defensive .... we have long felt that we
are less well served by the ezisting system
o~ making grants upon unsolicited
application over a very wide field than we
would ~e were we to determine the specific
areas relating to tobacco and health toward
which meaningful research projects might be
directed ....
In response, Mr. Ramm agreed that "it was important
for the CTR to formulate a research program more directly
targeted on the p~oDlems that we in our industry need tc have
191.
191.
193 .
Id. at 112-13 ('Do you scatter it to the winds, or do you
di:ect it to the goal you're after?').
Se.._~e Letter from T. V. Hartnett tO J. F. Cullman, 3rd,
April i, 1958 (1002607596; 65005 1870; Cullman Ezh. 4B).
Tab 99.
Letter from A. Yeaman to H. H. Ram~, June !, 1970 (PM
1003040097). TaD 97.
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solved..~''~ Both Messrs. Yeaman and Ramm doubted that CTR
could accomplish its objectives without hiring a qualified
Scientific Directo:.
The correspondence between Messrs. Yeaman and Ram~n may
have been intended to promote proposals for additional contract
research as a further supplement CTR's historical provision of
grant-in-aid to researchers upon voluntary application. As
early as I965, Dr. Little had encouraged CTR's Soard "to
consider expanding the inspiration and initiation of research
projects in order to fill gaps in information or to achieve
specific research goals which are not satisfied through the
process of voluntary applications for grants-in-aid by
individual investigators."-LLI~ Similarly, in 1968 Dr. Little
urged "a change in emphasis" to more contract research.''~
Alternatively, the correspondence may have been
intended to promote a far more radical restructuring of CTR.
As summarized in a 1972 PM document, the proposals were as
follows:
194 .
195 .
Letter from H.H. Ramm to A. Yeaman, June 16, 1970 (PM
1003040101:65005 1867; Bowling Exh. 52). Ta~ 98.
Confidential Report, CTR Minutes, June 8, 1965
(00002608392, at 395).
Confidential Report, CTR Minutes, Jan. 3, 1968
(00002608336, at 338).
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It appears now that Brown & Williamson has
modified its earlier suggestions that CTR (a)
be subordinated to Channing Laboratories, with
Channing responsible for cancer, emphysema,
and heart disease and CTR responsible for
motivational aspects, (b) give up its
investigations of the biological effects of
msoke on the human system, and (c) coordinate
its research through a formal committee
comprised of the Scientific Directors of
Channing and CTR and industry representatives.
The present B&w proposals are reflected in the
attached memorandum from Add Yeaman describing
the meeting held on October 30 with
representatives of CTR. Essentially, the
major changes now proposed are:
CTR shoul4 abandon its ~istoric dec!ared
commitment to the "study of the disease
entity" in favor Of investigations of the
relationship of tobacco smoke to certain
human diseases;
(b) The Scientific Directo~ and Staff will
review the existing state of knowledge
and formulate a program as well as
specific research projects aimed at
filling the=gaps in knowledge;"
(C) The Scientific Director (with the advice
of the SAS) will find researchers to
carry out the projects and will have
control of the budget;
(d)
The Scientific Director will have the
res?onsibility to coordinate, to the
extent possible, the work of CTR and
other smoking and health research
agencies such as Channing Laboratories.
The likelihood is that Reynolds and Lorillard
will support the B&W position, Lorrilard,
however, has said that regardless of the
changes in CTR procedures, it is considering
the larger question of whether the benefits Of
continuing CTR are worth the cost.
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Available documents do not dzsclose what became of these
discussions, if anything.
In any event, CTR's increasing emphysis on contract
~esearch d~ew the wrath of at least one company. In strident
language, Robert K. Heiman (American) wrote to Mr. Yeaman (CTR)
in 1977 as follows:
Following our discussion of December 5,
should like to summarize our Company's position
with respect to The Council for Tobacco
Research. For many years after the T.I.R.C. was
established in 1954 we were able to say that
"all grants are made upon recommendation of an
advisory board of independent doctors, scientists
and educators. Recipients of grants are assured
complete scientific freedom in conducting their
investigations." Indeed, this point was made a
part of our pledge to the public in full-page
advertisements headlined "A Frank Statement to
Cigarette Smokers" and "Nin_~e Important Facts
about Smoking and Your Health." The latter ad
specifically said: "A Scientific Advisory Board
of outstanding doctors, scientists and educators
~as complete and free rein in directing the
research program and awarding the money for
grants."
This we can no longer say since what is
called "directed" or "contract" research has been
brought into the picture. As I remarked at the
September 1976 meeting, the original concept of
T.I.R.C. did not embrace the idea of contract
research but envisioned industry support of
research on a pro Dono ~, arms'-leng~h
basis. I believe the current movement towa:d
contract research is a violation of our
advertised pledges to the public and I also
believe industry support of ~bjective and
197. Let:e: from R.K. Heiman to A.H. Yeaman, Dec. 5, 1977
(0000255934-2~) (emphasis in o~iginal).
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independent scientific research is of cardinal
importance in maining a statesman-like stance.
I do not think it would be an exaggeration to say
that the current shift to contract research
bastardizes a fine concept of objectivity which
many good people in past years worked long and
hard to establish.
Mr. Yeoman responded that Mr. Heiman was "completely mistaken,"
and invited further discussion./-z~/
In addition to other matters discussed above and
below, plaintiffs may also argue that the 5AS's decision-mak:ng
processes were rigged from the start. For example, while the
industry will argue the alleged -independence" of the SAB by
pointing to the fact that the Board selects its own members,
the original Board was, in major part chosen by the tobacco
companies' own directors of research,'''z Moreover, no
person known to favor the cigarette/disease hypothesis has ever
sat on the SAB.~-'~-~" The selection process of SAB members
igB.
Letter from R.K. Heiman to A.H. Yeoman, Dec. 6, 1977
(0000255934-36) (emphasis in o~iginal).
199. Sere pp. ~ to ~ infr._~a,
200.
But see, Memorandum from W. Kloepfer, Jr. to Ea=le C.
Clements, August 26, 1968 (T 12834), TaD I01 (reporting
conversation with Dr. Robert Huebner, "NIH's famous
cancer virologist," shortly after he joined the SAB: "he
hoped the tobacco industry would prove to be more
interested in putting funds into disease causation than
in "trying to p~ove cigarettes aren't a cause. . He
said he is convinced cigarette smoke combines in some way
with a virus to cause lung cancer, He said he
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appears to be clouded by the role of lawyers and public
relations representatives.
Finally, a significant amount of money disburse~ by
the SAP went to either CTR's Scientific Director, its own
members and/or the institutions with which they were
affiliated. Indeed, this concern drew the fire of American's
Mr. Heiman:~°--L,
Another side result of our new direction is
that we seem to be combining in one person
a Scientific Director and a quasi-grantee,
a combination which is hardly compatible
with the administration of an objective and
independent grant program. Without entering
in any way into a personality question, it
seems to me that no single individual can
properly discharge both functions at the
same time.
With respect to the SAP, one member, Richard J. Bins, has sat
on the Board every year since 1957 and has received grant funds
each of those years. Another SAP member, H. Meier, served on
the Board from 1972 until 1981 and like Dr. Bins, received CTR
200. Footnote Continued From Previous Page
201.
believes cigarettes help to trigger 80 percent o[ lung
cance~, but that he is far more interested now in the
other 20 percent, and that even if everybody stopped
smoking it would eliminate only 4 percent of all cancer.
He is suite worried about the charcoal-s~eak
problem .').
Letter from R.K. Heiman to A.Y. Yeaman, Dec. 6, 1977
(0000255334 and 335-36).
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funds throughout his period of service. Other 5AB members
awarded CTR funds while sitting on the Board were O. H. Comroe
(i year out of 4), W. A. Ga~dnes (i year out of 12), C.
Loosli (4 years out of 9), H. T. Lynch (4 years out of i0),
K. M. Lynch (8 years out of 15), $. C. Sommers (2 years out of
16) and L. W, Wattenberg (3 years out of 4).
4. LS, Inc.
In 1966, Covington & Burling contracted with
Company~International Information Incorporated (late: known as
rnformation Interscience Incorporated ('3i')) to provide
confidential, automa:ed litigation support services to the law
firms representing c:gasette manufactures in products liability
litigation. In 1971, 3i was in severe financial trouble, and
decision was made to transfer its operations to CTR.
InitialIy, the CTR operation was known as "Information
Systems," and it functioned as "an information and retrieval
system relating to medical literature concerned with tobacco
use and health," the expenses of which were borne ~y the
~art~cipating tobacco companies.'-LL~" The name of this entity
was changed to the Literature Retrieval Division ('LRD'). The
202.
203 .
See "SAB MemDers ~ Staff Charts" (no document production
numbers). Tab 102.
COnfidential Report CTR Minutes of First Annual Meeting
of MenDers, January 29, 1971 (i002907~62). Tab 122.
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minutes Of the meeting of CTR's board of directors on
November I0, 1972 contains an ominous reference to "a safe
deposit box containing certain records of the Literature
Retrieval Division, currently leased in the name of the
Executive Vice President .... -.La~z By the time of the
Board of Directors' January 30, 1981 meeting, the mysterious
safe-deposit bo___~x had become "the Literature Retrieval
Division's safe deposit boxes."z~---!~"
LRD was a division of CTR from 1971-1983, and
continued to perform its functon of analyzing, ~ummarizing,
indexing and retrieving scientific and medical literature at
the direction of litigators, In 1983, L$, Inc. was created to
be the successo~ of LRD.
5. Lawyer Involvement
Plaintiffs will argue that for at least thirty years,
CTR's research efforts were held thrall by a closed circle of
its lawyers. Not only did industry lawye:s attend all meeting
of CTR/TIRC and the SAB, but the same counsel represente~ the
Tobacco Insticute (and attended all its sessions as
204 .
205 .
CTR Minutes Of The Meeting Of The 8oard Of Directors,
November i0, 1972 (CTR 6463; 65008 1624; Gertenbach
Duke/Rogers Eah. Ii DD). Tab
CTR Minutes Of The Meeting Of The Board Of Directors,
January ~O, 1981 (CTR 6584; 65008 1745: Gertenbach
Duke/Ro~ers Exh. If-W) (emphasis added). Ta~ 124.
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demonstrating how diaphanous was the veil separating the
Industry's research and lobbying bodies. Lawyer involvement
raises potentially serious problems in three areas, (i) special
projects; (ii) CNS ~esea:ch; and (iii) "legal" review of grant
applications.
a. Special ProSects
Following victories in the early smoking and health
litigation (including trials in P:itchard, La:tique and Green),
the industry Decame complacent. It was rudely awakened,
however, with the Congressional hearings on possible warnings.
The industry itself in need of developing witnesses to
testify that (i) association is not equal to causation, and
(ii) you can't extrapolate from animals to men. In reviewin~
CTR's research, it found no usable research to present to
Congress. In addition, "cigarette" research had become
unpopular; journals refused tc publish such; government funding
dried up; and due to limited sources of funding, researchers
turned their attention elsewhere, with the result that CTR's
applications dried up.
Accordingly "special projects" were born in early
1966, when, according to the minutes of a subsequent CTR
meeting, "it was decided to undertake various special projects
in the form of contract research, pilot and exploratory
studies, short-term research projects and othe: projects --
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such as preparation of bibliographic reviews and analytical
monographs -- whose character would render them narrower in
scope than the broader objectives of the Advisory Board's
grants-in-aid program."/-~-~ More specifically, in 1965 or
1956, the industry directed its lawyers to get the needed data
and witnesses, and Special Projects were born. In particular,
Ed Cook of Davis, Polk went around lining up special projects.
Although special projects are given CTR's impramatur,
they a~e not approved by the SAP./2-z~ In the words of Hugh
Cu!Iman (PM), one year's "special services and contingencies"
were "for consultants such as Rosenblatt who are friendly to
TIRC & SAP plus definitive experiments prior to granting
gran~s."'~---£'z In addition, although the underlying purpose of
special projects was to develop witnesses, special project
grantees have "full freedom of publication," with attribution
to CTR funding being required. Grantees have included
Sterling, Fisher, Eysenck and Macdonald.
206.
207 .
208.
Confidential Report CTR Meeting, January 27, 1967 (CTR
6420; 65008 1581). T~b 121.
The SAP minutes refer to special projects as "applied
research."
Notes attached to Memorandum from Hugh Cullman to J.F.
C~llman, 3rd, October 18, 19&l (1002607624). TaD 120.
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b, CNS Research
In the 1960s, the SAB was precluded from approving
central nervous system ('CNS') research. The SAB was told by
CT~'s counsel, Ed Jacob, that such research had competitive
significance. Moreove$, given the close working relationship
between the Scientific Director and the rotating chairmen of
the Technical Advisory Committee, it was Geared that one
company might be able to appropriate such research before it
became available to others. Indeed, Philip Morris was accused
of appropriating Dr. ADood's CNS work by hiring him before
completion of the work begun under a CTR grant. ~n addition,
Dr. Sommers (in deposition preparation) explained that CN$
research was terminated since it might be viewed as encouraging
smoking, a personal practice that the SAB did not want to
influence.
c. "Le~a!" Review of Grant Applications
Pursuant to standard procedure at CTR, an individual
interested in a CTR grant is instructed to write a brief
description of his proposal, the estimated budget and the
amount of time necessary for completion of the research.. This
proposal is called a case. If distributed to the members of
the Executive Committee of the SAB for review and comment, it
is assigned a case number. The Executive Committee of the SAB
will then either encourage or discourage a formal application.
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The applications are reviewed semiannually and ranked according
to priority, and funds are allocated accordingly.
During William Hoyt's'°'" presidency, cases were not
automatically assigned a number. All potential cases went
first to Hoyt for review. Proposals which were considered
"dangerous" were sent to Jacob, Medinger & Finnegan for a
"legal" opinion.
Upcn employment by CTR, Lorraine Pollice
established a case log in order to keep better track of the
proposals submitted by researchers.~''~ The~e was no
formalized system for logging in proposals prior to the
creation of the log. Researchers tended to send their
proposals to individuals on the SAB that they knew. The
scientists (especially Dr. Hockett) would often keep a proposal
on their desks for a lengthy period of time and the proposals
of:en were lost. Thus, the log was started in an effort to
keep centralized control over t~e grant proposals coming into
the office.
209 .
Hoyt worked for CTR from January 4, 1@54 to March i, 1984
and held the titles of executive secretary, e~ecutive
director, executive vice ~resident and president.
Pollice did not recall the specific years Hoyt served as
President.
Ms..Pollice is Assistant Treasurer and Secretary of CTR.
In 1981, Amy Minsky assumed responsibility for the Icq.
She is no longer employed by CTR.
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The log had four columns: (I) the date received and
the author's name, (2) the action taken by the Executive
Committee, (3) legal opinion (subdivided into "To W~" and
"Re¢. ODin." and (4) Letter Sent ('Encouraged" or
"Discouraged'). The iog entries indicate whether a legal
opinion was deemed necessary by Mr. Hoyt. Several entries note
that a proposal was sen~ t~ Mr. Jacob (#597, #598). In the
majority of cases in which it appears that a legal opinion was
obtained, the proposal was eventually treated as a case./~-~"
However, other files were apparently held indefinitely, not
treated as a case, or a letter discouraging formal application
was sent.
The proposals of greatest concern are the ~ollowing:
Peter Bernfeld (no case #)
Bio-Research Consultants, Inc.
List Entry - not listed
Log entry - blank - no case number assigned
Proposal date - February 2, 1983
Subject - Subchronic Inhalation Studies of
Tobacco Smoke in Inbred Syrian Hamsters
Don Cherek - (#565)
Louisiana State University Medical Center
Lis~ Entry - (Hold - Legal) - Discouraged
4/24/79
Log Entry - legal odin. rec: "Yes, Deny per
WTH 4/23/79" (p.4)
212 .
Pollice recalled that cases were periodically sent to Ed
Jacob for review prior to being treated as cases. No
record other than the log were kept of the case sent to
him. She believes that Mr. Jacob would give his legal
opinion to Mr. MOy~ by phone.
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Pro6osal Date - March 8, 1979
Subject - Investigation of possible
anxiolytic actions of nicotine. Study of
the effects of nlcotine and diazepam
administered in a punishment paradigm and in
a progressive ratio.
Jack R. Cooper (#697)
Yale University School of Medicine
List Entry - (Hold) per WTH
Log Entry - legal opin: "Yes, hold pet WTH
8/2181" (p. 23).
P~oposal Date - January 26, 1981
Subject - "Choline~gic Modulation of the
Release Of Acetylcholine from Myenteric
Plexus Synaptomes." Using a nicotinic
agent, possibly nicotine itself, to evoke
ACh release, the study proposed to screen
agents that had been observed in the intact
ileum to modulate relase of ACh.
Joseph
University of Colorado Medical Center
List Entry - (Hold) - Discouraged by Staff -
4/22/81
Log Entry - "Mot distributed by Staff
action, Mold per WTM 4/16" (p. 25)
Proposal Date - April 7, 1981
Subject - Investigation of the metabolic
fate of N-nitrosonornicotine.
A.W. Gustafson (#566)
Tufts University School of Medicine
List Entry - Discouraged 4/16/79 - Exec.
Com. Mtg.
Log Entry - Legal Opin: To WTH 3/14; Rec.
Opin: "Yes, O.K. to send WTM 3/16" (p. 4)
Proposal Date - March 7, 1979
Subjec~ - "The Effect of Tobacco Smoke on
Differentiated Form and Function of Tracheal
Mucin-Producing Cells In Vivo and in
Culture."
Note: T~e Executive Committee reviewed the
proposal and discouraged formal application
on April 16, 1979.
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10.
Richard Katz (#714)
Johns Hopkins University
List Entry - (Hold)
Log Entry - Legal Opin: "Hold per WTC 4/16"
(p. 25)
Proposal Date - April 10, ig81
Subject - Investigation of the effects of
prenatal nicotine exposure upon development
and subsequent adult behaviors in the rat.
Jennie Kline (#671)
Columbia University
List Entry - Discouraged 10/16/80
Log Entry - Legal Opin: "Hold per WTH 9/24"
(p. 19)
Proposal Date - September 4, 1980 Subject -
Study of the effects of maternal smoking on
the human reproductive process, taking
special account of the differences between
brand and composition of the cigarettes that
are smoked.
Marie McGee
Wake Forest University School of Medicine
List Entry - (Hold) per WTH
Log Entry - legal Opin: "Hold per WTH
i/6/81" (p. 21)
Proposal Date - November Ii, 1980
Subject - "Phagocytosis - Induced Injury of
Activated Pulmonary Macrophages. Effect of
Amosite and Chrysotile Asbestos."
Douglas McNair (#564)
Boston Unviersity School of Medicine
List Entry - Discouraged 3127179
Log Entry - Legal Opin: "0.K. to send per
WTH 3/16" (p. 4)
Proposal Date - March i, 1979
Subject - Study of the effects of single
cigarette smoking by moderate ~abitual
smokers upon their performance of tasks of
attention, and recent and long-term memory.
Arvind T. Modak (#597)
University of Texas
List Entry - Legal Opin - Discouraged 8/13/79
Log Entry - Legal 0pin: To WTH: "Yes, per
WTH, sent Mr, E.J. 1/17/79" (p. 7)
Proposal Date - May 25, 1979
Sub]err - "Nicotine and the Central Nervous
System."
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12.
13.
Note:
See Exhibit C for copy of note in the
file "from the desk of William V.
Gardner" which states in part: "SCS
(Sheldon Somme~s) has stated he would
like to see as much of this as
possible go to Ex. Cmt. and SAB.
doubt this would pass E.J. at this
time."
Howard Shertzer (no case #)
University of Cincinnati Medical Center .
List En~y - not listed
Log entry - "Discouraged by staff" (p. 55)
Proposal Date - May I0, 1983
5ubject - "Identification of the Active
Substances that are Generated from
Indole-3-Carbinol and which Protect
Mammalian Tissue against Damage by Reactive
Electrophiles."
Note: File cover ma:ked as follows:
Sent Out"
Cecilia Smith (#1034)
University of California
List Entry - "Turned Down fo~ Legal"
Log Entry - "Turned Down fo~" ... (p. 70)
Proposal Date - April 23, 1984
Subject - Study to define the nature and
sequence of the immunologic, cellular and
histologic events in the lung which occur
during inhalation of asbestos.
Richard Valachovic (no case #)
Harvard School of Dental Medicine
List Entry - not listed
Log Entry - "Turned Down" (p. 49)
Proposal Date - October 12, 1982
Subject - Study of ~ac~ors associated with
human bone loss. Preliminary da~a suggested
a relationship between certain smoking
habits, bone loss and age.
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Ms. Pollice recalled that from the time'she began
working for CTR in 1975 until Mr. Hoyt retired on March i,
1984, cases were held for legal reasons. Mr. Hoyt was the only
person who ever told her to hold a case for legal reasons. In
the past, the scientists would have a staff meeting to review
the proposals to ensure that all the requisite information
(c.v. of the zesearchers, budget, etc.) had been submitted.
Mr. Hoyt did not attend these meetings. Ms. Pollice made
copies of the proposals which were deemed complete by the
scientists and gave them to Mr. Hoyt. Mr. Hoyt would review
the proposals and would instruct her to send out certain
proposals as cases and not to send out others. She stated that
the proposals which were not sent out would not necessarily
have ever been entered in the log.
Ms. Pollice thought that Mr. Moyt would be the only
person who would know what cases were sent to Mr. Jacob for
review. She stated that prior to the use of the IOg, if a case
or p~oposal was held for legal reasons, the:e is no assurance
that it could now be located, 5he briefly checked through a
correspondence file in her office and found a letter from Mr.
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Hoyt to Mr. Jacob which roughly stated "These four cases were
approved by the SAB. Let me know what your reaction
Finally, she emphasized that after Hoyt retired,LL~
p~oposa!s were automatically assigned a case number and sent
out to the Executive Co~ittee. She remembered that A~y Minsky
asked her what to do with the log upon Hoyt's retirement and
Ms. Pollice suggested that she discuss it with Gertenbach. She
does not know the result of that discussion.
Possible Industry Response.: Corporate Responsiveness
a. Individual Companies' Failure to Investigate
The rote response that the industry did not conduc=
smoking and health research in-house is an invitation to
disaster. I~ represents an unqualified admission that the
manufacturers failed to discharge their nondelegable duty to
adequately test their products. Proving these admissions will
not compromise plaintiffs' a~ility to rely on damaging langauge
213.
214 .
When asked for a copy of the letter, she declined, saying
she would feel more comfortable talking to the CTR's new
lawyers about it first. In a previous discussion about
the involvement of Counsel, she indicated that the cases
held for "legal" which were sent to Mr. Jacob would
generally De sent with a brief note such as "FYI" and
would not indicate what the attachments were. Jacob
would respond with a phone call rather than in writing.
Ms. Pollice recalled that Mr. Hoyt retired on March I,
1984 and became a CTR consultant on that date. The case
list indicates that cases were turned down for ledal
reasons as late as June 1984. See Exhibit D.
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in research documents, since such research by definition [i.e.,
the industry's definition] was not smoking and health research.
A middle ground must be found. Perhaps the most
appropriate one is that articulated by Dr. Colby: whether
Reynolds conducted smoking and health research is a question of
definition: under Dr. Colby's definition, for example, smoke
constituent analysis is smoking and health research. In
addition to avoiding an unqualified admission, this approach
(i) shifts the focus to the specifics of what in fact was done:
(ii) avoids potential credibility problems between
characterizing skin-painting work as s~oking and health
research when conducted by Wynder, but not when conducted by
PM, Reynolds, or others, and (iii) opens the door for the
industry to stress the major advances that have been achieved.
While a modification in app:oach is appropriate, the
industry should not become overly defensive about its response
to the smoking and health issue. No study OE grOUp Of s~udies
has ever established that cigarette smoking is necessary and
sufficient to cause lung cancer. Indeed, the early
retrospective studies maintained that causation could not be
established by statistics and that o~her forms of data were
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required (but have never been (ound).~-u~" Rather than
develop such data, others have simply opted to change the rules
of the game. The 1964 Surgeon General's Report acknowledges as
much, and subsequent reports abandon scientific causation in
favor of a "preventive medicine" definition.
~urthermore, the industry ~id what it thought was
reasonable. The companies monitored the literature, they
formed R & D departments, they duplicated the tests, and
neither the industry nor anyone else has ever been able to
identify an appropriate animal model and no one has ever
articulated a valid mechanism of carcinogenesis. Part of the
industry reseazch looked [o: causation, part of it was aimed to
the flaws in the outside studies, and part of it looked for
causes and cures of cancer, generally. Part of it attempted to
dete:mine if isolating and removed alle~ed harmful constituents
would change the results of the skin painting tests. Some of
it raised new questions. The industry position should be (and
is) that it does not know if anyone will find the answer. None
215.
With respect to skin-painting studies, it is beyond
dispute that wynder's first mouse skin-painting study had
exaggerated results (which were overly publicized) as
demonstrated by wynder's 1958 mouse-skin painting study
and the ADL study, and that skin-painting involves
unrealistically high doses and ~s now @enera!ly :egarded
as ~cientifica!ly unreliable.
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of the previous research has established causation or lack o£
causation.
Plaintiffs - and the Industry°s critics, generally -
have seized upon the discovery of BAP in smoke as a convenient
shorthand indication of the Industry's awareness of the alleged
health hazards and i:s failure to warn. Defendants can turn
the SAP issue to their own advantage. They should change their
response from one of quibbling about the presence of BAP and
its effect on the backs of mice. The strategy should be to
acknowledge that BAP is in smoke and that it is carcinogenic in
exaggerated doses to mice skin. Dr. Colby provided the best
strategic answer: Dr. Wynder said take out BAP and you solve
the problem. Then Dr. Wynder removed BAP and obtained the same
results on mice skin without it.~-t~" This answer also
demonstrates a larger point: The issue of causation is
216.
Spears Depo. Exh. i. Dr. Wyn~er conceded in 1957:
The benzpyrene content of the total tar as well
as of the active fractions is far too low to
account alone for the positive results. So far,
no carcinogens have been identified in large
enough quantity in tobacco tar or its ~ractions
to account for the observed activity. While a
summation effect on several substances remains a
possibility, it is more likely that carcinogens
not get identified may be the most important
ones in tobacco tar.
wynde:, E.L., Cance~, "A Study of Tobacco Carcinogenesis"
(March-April !957). 5e__.~e Tab g~.
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complex. Furthermore. if consumers were aware that something
in smoke caused cancer on the backs of mice, is it likely any
smoker would behave differently knowing it was something called
benzo[a]pyrene? Once BAP and other constituents became well
known, did plaintiffs change their smoking behavior? Thus,
ultimately, PAP appears a moot issue from a substantive
standpoint.
In 1982. the Head of the American Council on Science
and Health sent Horace Kornegay a letter asking for him what
evidence would convince the industry that its product was
harmful. Kornegay, on the advice of counsel, did not provide a
direct answer. William K!oepfer did prepare a "list" of
conditions he believed had to be satisfied./~-!/ The brevity
217,
These conditions included:
Explanation of the lack of agreement in
prior studies.
Discovery of the reason why most smokers
did not become afflicted with disease
statistically associated with smoking.
3 o
A description of the physiological
mechanisms of the development of
smoking-related illnesses.
An identification of the elements which, as
found in smoke, can be shown to be toxic.
Persuasive research to account for the
reported male/female differences in
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of the list and the fact that it was not developed until 1982
support the plaintiffs' contention that the industry did not
take the first step to investigate the health allegations
against smoking. This information is or probably will be
available to plaintiffs,
Industry witness can expect to face simila~ questions
on deposition. They must be prepared to respond effectively.
The following are points which have been gleaned in part from
the various criticisms expressed by the R&D witnesses. It was
not developed with any pretension toward scientific validity.
(I) The study must evaluate whether certain
animals have respiratory systems sufficiently similar to
human respiratory systems to be valid test animals.
(2) The animal's metabolism must De similar to
human beings.
(I) The animal's immune systems must be similar
to human beings.
(4) The study ~ust evaluate whether any of the
animals identified in (1), (2) and (3) have a life span
comparable to human beings.
(5) The study ~ust develop and evaluate a method
of causing or allowing the animals to inhale smoke in a
manner and dose similar to the human smoking experience, as
well as for accounting for the myriad of variations in the
217.
Footnote Continued From Previous Page
smoking-related illness rates.
6. Research which shows the invalidity of
alternative hypothesis such as heredizary
and constitutional facto:s.
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human smoking experience, including age at which smoking
begins, number of cigarettes smoked, amount of tar and
nicotine, and frequency and depth of inhalation.
(6) The study must ensure that the method of
inhalation is devoid of unnatural trauma and stress.
(7) The study must be conducted over a period of
time that approximates the interval observed in the human
experience for lung cancer to appear.
(B) The study must determine whether the cells
from which the observation arises are similar to the cells
in which cancer arises in human beings.
(9) The study must develop and account for the
total effect of smoking, including the benefits from
smoking which may have an anticarcinogenic effect or other
health benefit, such as:
(a) Pleasure
Taste
(c) "Satisfaction"
(d) Relaxation
(e) Lower body weight
(f) Ability to cope with stress
(g) Increased concentration
(h) Social interaction
(i) Oral gratification
(j) Avoidance o~ boredom
(I0) The study must measure and evaluate related
or unrelated alternative causes of lung cancer.
(ii) Environmental factors, such as air
pollution, must be accounted for.
(12) The phenomenon of some nonsmokers
contracting lung cancer must be explained.
(13) The phenomenon that some smokers, even ones
with very high time/dose relationships, do not develop lung
cancer must be explained.
(14) AbSolute causation (virus, bacteria) must be
investigated and resolved.
(15) Variations in cancer rates according to
certain geographical considerations mus~ be explained.
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(16) Adequate control groups must be established
and evaluated.
There are obviously many other factors which could
probably be developed, but the industry must be able to say:
"This is what would resolve the controversy, it is extremely
complex, we are working on it, but the proper study has not yet
been done," Dr. Spears' testimony apFears to come closest to
this approach./-~"
~n addition, industry technical witnesses should be
prepared to demonstrate the inadequacy of studies cited by
plaintiffs. This information can also be used to cross examine
plaintiffs' experts to gain admissions that they do not have
the answers to all the questions: these admissions can
reinforce the industry's position in front of the jurors and
will, perhaps, raise questions in their minds. In any case, it
provides some credibility to the R & D representatives and to
the indus~:y.
b. TIRC/CTR's Failure to Inves:ioate
Overall, t~e industry insistence that the CTR is
"completely independent" must be toned down. TIRC wa___~s a
committee of industry representatives, and CTR has both
remained under the control of a board of directors consisting
218. Spears Depo. at ~I-~7, 277-83.
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of industry representatives, and been funded entirely by the
tobacco companies. Emphasis should be placed on the facts that
the SAB has funded over $140 million in grants to persons who
conducted smoking and health research, and that grantees were
given full freedom of publication. Industry witnesses must be
prepared to acknowledge CTR was not "perfect," while
maintaining that it was a good faith effort to respond to the
smoking and health controversy. Undue (and unnecessary)
emphasis on the claim that CTR was independent risks raising a
"corporate misconduct" issue and a loss of credibility. The
fairest characterization appears to be that CTR really does
sponsor no-strings-attached research, which not infrequently
produces discomfortin9 results, but its basic staff remains
supportive of the industry position, This characterization may
be too generous. An alternative position might be that the
tobacco industry is as entitled to fund research calculated to
support its position as opponents of smoking are to seek
evidence supporting their preconceptions.
To the extent that industry can gain such admissions
from plaintiff's experts about the credibility of CTR funded
research, it demonstrates corporate responsibility and adds
support to the "open question." Furthermore, this st:atagem
might take the credibility issue away from plaintiffs by
changing the focus from the funding process to some of the
signif:cant credible research that resulted.
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In addition, the industry must prepare to defend the
activities of TIRC/CTR. without a major effort in this area,
the industry will not only lose an important defensive shield
but will also find TIRC/CT~ being used as a sword against it.
In general, the industry must find an appropriate
spokeman/expert who is fully familiar with TIRC/CTR°s
activities. There is an important and valuable story which
must be told to blunt plaintiffs' efforts to obscure the forest
by looking at a few trees. Portions of that story are
discussed below.
while TIRC/CTR certainly was flawed, on balance, there
was genuine worth in its work and a fundamental seriousness of
purpose in its motivation. TIRC/CTR perceived the need for a
soundly-based research program to tackle the smoking and health
question -- which proved vastly more intractable than anyone
imagined in 1954 --and developed just such a program.
In a memorandum dated July 16, 1959, Dr. Little
elaborated upon the "basic principles on and around which our
work has been and is being planned." According to Dr. Little,
both lung cancer and cardiovascular disease are "extremely
complex" in origin and "undoubtedly due to many causes,"
involving "at least" the fields of he:edify, infection,
nutrition, hormones, nervous strain or tension, and
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environmental £actors.~ '--z'1 Dr, Little went on to list
sixteen "new projects to be developed with the SAB's advice."
These included:
A carefully controlled experimental
study of the relative effects of the
pipe, cigar and cigarette tobacco smoke
condensates following the general
experimental methods already employed
by other investigators but with more
careful controls.
The extension of the interesting
methods of bioassay developed by Dr.
Stephano. Until fast, reliable and
simple methods of assay are developed,
the testing of suspect substances
remains uncertain and unconvincing.
The possible influence of arsenic and
other trace elements in tobacco ....
Tissue culture - the recent
discovery .... of a completely
synthetic medium for growing mammalian
cells opens a much more accurate and
controllable avenue of a~tack on the
problem of g:ow±ng and oDserving human
lung tissue outside of the body.
219 .
Start of smoking habit. Studies in
this field should be reviewed and
research started under our direction
Memorandum from C.C. Little to T.V. Martnett, July 16,
1959, attached to Minutes of SA8 Meeting, SeptemDer 12,
1959 (CTR 2760:65008 19!9; Gertenbach Duke/Rogers Exh.
12-F-3). Tab I~4.
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I0.
13.
and subsidy to find out what kind of
children smoke and why ....
Twin studies ....
A study of urban and rural cats and
dogs ....
16. Statistical studies .... /_u/-
In a memorandum to the SAB dated May 26, 1962, Dr. Little
expanded the list of possible projects./3-~"
(i) Early Efforts: Smoke Constituent Analysis
and Bioassav Systems
In the firs~ decade of TIRC's existence, smoking and
health research was in its infancy. Beyond epidemiology,
chemical and biological research were being pursued both within
and without the industry.
Chemical analyses of smoke did not require TIRC
support, since reliable and reproduceable results were being
obtained through the employment of new technology by the
industry and by outsiders including Dr. wynder and the
220.
22~.
I~d. See also, Report by the SAB to the TIRC, March I0,
1960, fo~ a summary of the first six yeats of the SAB's
work and a list of 22 projected areas of research (CTR
278~; 65008 1943). Tab 135.
Memorandum from C.C. Little to SAB, "Consolidation of SAB
Planning and Programming Suggestions," May 26, 1962 (CTR
2S26; 65008 1986). Tab 136.
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Tennessee Eastman Company. Ic was, however, considered vital
that smoke constituent analyses be made available to TIRC
grantees. Accordingly, in 1956 the SAB obtained an agreement
to obtain the results of "a large-scale project" of the
Tennessee Eastman Company for the "chemica~ analysis of
cigarette smoke," offered to supply the results of its study to
cigarette manufacturers and to TIRC. However, "It]hey do not
plan to publish these reports but the methods and findings
described can be communicated without citation, for use by TIRC
grantees to expedite their own work."/-Lz" This
"confidential" Tennessee Eastman report was subsequently
delivered to TIRC and placed in its files.-t/-!J
The situation was not the same with respect to
biological research. The only available bioassay syste= was
skin-painting, which was unacceptable from many perspectives.
Among these were controllable problems associated with varying
procedures for the preparation of cigarette smoke condensate
(which could result in nonreproduceable results, noncomparable
222 .
Tobacco Board Meeting, December 2-3, 1956 (CTR 2706;
65008, 1865; Gertenbach DYke/Rogers Eah. 12-C-4). Tab
131.
TIRC Confidential Report, SAB Meeting, March 9-i0, 1957
(CTR 2713:65008 1872: Gertenbach Duke/Rogers Exh. 12-D-i
at i)- Tab 132.
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results, and artifactual results). In recognition of this, in
1955 the SAB resolved that:
2. Routine tar production and availability from some
source outside the company laboratories is
necessary.
]. Continuing analytical study of tobacco tars and
of the effects of variables in production
conditions upon their composition and its
chemical effects is desirable./-Li"
At the next month's meeting, DEs. Cattell and Hockett
reported on a visit by them to the Ecusta Paper Corporation
(which also produced cigarette paper) to examine its facilities
for producing and supplying tobacco tars. The SAB authorized
them to enter into an agreement on its behalf with Ecusta for
tar supplies,l-l~" Subsequently, Ecusta served as a source of
tobacco distillate for all TIRC grantees requiring that
product./-L£" During a subsequent meeting, the 5AB approved a
224 .
225 ,
22fi.
TIRC Confi~.eDtial Report, SAB Meeting, January 16-17,
1955 (CTR 2644; 65008 1803; Gertenbach Cipollone Exh.
12-B-I at 3). TaD 125.
Id. at 3; TIRC Confidential Report, SAB Meeting, March
20-21, 1955 (CTR 2654:65008 ISl3, GertenDach .Duke/Roqers
Exh. 12-B-3 at 3). Tab 128. The resulting agreement
with Ecusta was approved at the SAB's nex~ meeting.
Tobacco Board Meeting, May 15-16, 1955 (CTR 2659; 65008
1818; Gertenbach Duke/Rouers Exh. 12-B-4 at 3). TaD 129.
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document originally drafted by Ecusta for distribution to
grantees receiving tar from Ecusta.~-L~
The SAB also foresaw the necessity for devising and
standardizing a bioassay system (inhalation) which avoided some
of the noncontrollable problems with skin-painting. In the
January 1955 meeting noted above, the SAB also resolved:
i. A description should be published in scientific
literature of satisfactory smoking machines which
would include specifications and define
conditions tha~ must be met./-L~z
The SAB therefore called on the Industry Technical Committee to
"tender a report on smoking machine standard with a explanation
as to the reasons for the standards ....
while i~ is not clear from available records, it
appears that little information about smoking machine standards
was available. The SAB subsequently found it necessary
appropriate to consult with ADL's Dr. Kensler about smoking
machines,/-~-tz and to host a meeting "composed of the
227 .
228 .
229 .
Tobacco Board Meeting August 22-23, 1955 (CTR 2~69; 65008
1828; Gertenbach Duke/Rogers Exh. 12-B-6) and attached
('DATA ON COMPOSITE CIGARETTE CONDENSTATE'). Tab 130.
TIRC Confidential Report, SAB Meeting, January 16-17,
1955 (CTR 2644; 65008 1803; Gertenbach Cipo!lone Exh.
12-B-I at 3). Tab 125.
TIRC Confidential Report, 5AH Meeting, August 22-23 1955
(CTR 2669; 65008 1828; Gertenbach Duke/Rcaers Exh.
!2-B-6). Tab 126.
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p~incipal people interested in smoking machine
techniques .... "
(2) Animal Inhalation Studies
Early in its existence, the SAB also approved grants
for animal inhalation studies. At the time, these must have
been viewed as high-risk-but-need-to-know studies by the
industry.
In 1955, fifteen years before Auerbach announced his
celebrated experiment with "smoking" beagles, TIRC funded a dog
inhalation study./-Ll" Two years later, Dr. Kotin reported to
the SAB that "[f]ull agreement was reached [with the
investigator] on a plan to sacrifice the smoke-exposed dogs on
a systematic schedule and subject their lungs to a pathologic
study in the manner of the Pathologic Anatomical Study of human
beings."~t-LL" The results of these early inhalation studies
were negative with respect to human-type lung cancers.
Du~ing its 5e;tember !2-13, 1964 meeting, the 5AB
authorized Dr. Little to proceed with a four-year project which
232.
Se__._~e TIRC Confidential Report, SAB Meeting, January 16-17,
1955 (CTR 2644; 65008 1803; Gertenbach Duke/Roqers Exh.
12-B-I) (approving and activating grant No. 25). Tab
133.
See Tab 132 a: 2.
earliest p~ojec~s.
The referenced study was one of TIRC's
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he had announced the previous May, involving the application of
whole smoke to experimental animals under the direction of D~.
freddy Homburger.LL~" By this time, however, animal
inhalation research had failed to substantiate the causation
hypothesis. Critics cited both the 5mall test populations and
dismissed the negative result on the pretext that "animals
a~en't stupid enough to inhale."
Responding to these criticisms, at its May 20-21, 1967
session, the JAB "approved in principle the need for an
enlarged smoking inhalation p~ogram, including smoking machine
development, testing and animal experiments."2-Lt~ The SAB
also requested the Industry Technical Committee to assist it in
the development of a smoking machine for inhalation research
and to suggest procedures for determining the extent of smoke
234 .
235 .
CTR Confidential Report, 5AB Meeting, September 12-13,
1964 (CTR 2857; 65008 2817; Gerten~ach Duke/Rooers Exh.
!2-K-3). Tab 137.
CTR Confidential Report, SAB Meeting, Jeptembe~ 22-23,
1967 (CTR 2891; 65008 2852; Gertenbach Duke/Roaers E=h.
12-M-3), Tab 138: see also: CTR Confidential Report, SAB
Meeting, March 2-3-4, 1968 (CTR 2900; 65008 2869:
Gertenbacb Duke/Ro~ers Exh. 12-N-I, at 4). Tab 139.
CTR Confidential Report, SAB Meeting May 25-26, 1968 (CTR
2905; 6500B 2874; Ge~tenbach Duke/Rogess Exh. 12-N-2).
Ta~ 14~.
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The industry (Reynolds, Philip Morris, and Brown &
Williamson) responded to that request by developing three
prototype smoking machines,/~-~t and the SAP directed that
"several of each of the machines [be] made available at
designated laboratories as soon as possible for biological
testing."/-L/, The SAP shortly thereafter funded research at
the Mason Research Institute to "check smoking machines" and
authorized the purchase of three smoking machines for that
pu:pose,z~'" The scope o~ this project and its funding were
increased at the 5AB's next session.!LLI''" The SAB also
investigated a smoking machine developed by Lori!lard/~/~ and
236. CTR Confidential Report, SAP Meeting, March 22-23, 1969
(CTR 2921; ~5008 2890; Gertenbach DukelRo~ers EIh.
~2-0-2, at ~). Tab 141.
237 .
CTR Confidential Report, SAB Meeting, May 16-18, 1969
(CTR 2926; 65008 2895; Gertenbach Duke/Rogers Ezh.
12-0-2, at 6). Tab 142.
23~ .
CTR Confidential Report, SAP Meeting, December 12-14,
1969 (CTR 2939; 65008 2908; Gertenbach Duke/Rooers Exh.
12-O-4, at 2). Tab 143.
239.
CTR Confidential Report, SAP Meeting, May 16-17, 1970
(CTR 2949; 65008 2919; Gertenbach Duke/Romers Exh.
12-P-2, at 4) ('cats, rats. guinea pigs and possibly
dogs'). Tab 144.
240.
CTR Confidential Report, SAP Meeting; January 15, 16,
197L (CTR 2963; 65008 2933; Gertenbach Duke/Roger~ Exh.
12-Q-I, at 9). Tab 145.
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subsequently ordered such a device.'l-Lz" At its
December i0-12, 1971 meeting the SAB approved the award of an
additional $60,000 grant to Mason fo~ "carrying out (i)
calibrations and functional tests, (2) a balance study, and (3)
further studies of lung deposition of smoke" as well as an
"appropriation to defray the salary and expenses of Dr. Nystrom
of R. J. Reynolds Tobacco Company for his participation in
these studies in the amount of $7,000.00 .... "/~-t~
The SAB approved negotiation of an agreement with the
Oak Ridge Laboratory (Union Carbide) for testin~ of smoking
machines (with special referencei to the Walton and Lorillard
models) at its September 15-17, 1972 meeting./-L!~ It later
appropriated $37,450 to develop "a smoking machine prototype
241.
242 .
243 .
CTR Confidential Report, SAB Meeting, May 7-8-9, 1971
(CTR 2972; 65008 2942; Gertenbach DukelRo~ers Exh.
12-Q-2, at 7), TaD 146; se_~e ~ene~ally, CTR Press Release,
March 14, 1973 (CTR 3813; 65008 5492; Gertenbach
Duke/Roqers Exh. 13). Tab 147.
CTR Confidential Report, 5AB Meeting, December 10-11-12,
1971 (CTR 2987; 65008 2957; GertenDach Duke/Rogers Exh.
12-Q-4, at 3). Tab 148.
CTR Confidential Report, SA~ Meeting, September 15-17,
1972 (CTR 3003:65008 2973; GertenDach Duke/Roqe~s Exh.
12-R-3, at 4), Tab 149; se__~e CTR "Memorandum Concerning
Proposed Contract With Oak Ridge National Laboratory For
Developing Methodology And Evaluating Smoking Devices
Use In Biological Experiments," October 27, 1972
(1002608411). Tab 150.
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that will produce a continuous stream of smoke for biological
purposes.-2~-!"
The lengthy effort of TIRC/CTR to develop Suitable
equipment to expose animal models to chronic cigarette whole,
fresh smoke inhalation, studies culminated in the largest
project which CTR has funded to date: a nine-year long,
$12-million series of mouse inhalation studies performed under
contract by Microbiological Associates, Inc., of Bethesda,
Maryland.
CTR announced the inception of this project on
April 2, 1974, in a press release headed "MASSIVE CANCER STUDY
USING MADE-TO-ORDER MICE':
A massive cancer study, using mice that
have been literally made to order, is under
way to see whether human-type lung cancer
can be induced regularly in the
animals ....
The unique investiqation will t~y to
induce squamous lung cancer, the type
reported found most often in cigarette
smokers, repetitively and predictably in the
animals by exposing them to various chemical
substances . . .
244 .
245.
CTR Confidential Report, SAB Meeting, October 30-31,
NovemDe[ I, 1974 (CTR 3037; 65008 3007; Ger~enDach
Duke/Rogers Exh. 12-T-2, at 2). TaD 151.
CTR Press Release, "Massive Cancer Study Using
Made-To-Order Mice," April 2, 1974 (CTR 3819; 65008 5498;
GertenDach Duke/Rouers Exh. 13). Tab 152.
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LU ~
The experimental animals, of
contrasting stIains, are the result o~
scientific design to meet the study's
goals .... The highly inbred strains
essentially "labo=atory creations" that
never existed as such in nature and are
combinations of several elements of
susceptibility.
On November 9, 1984 CTR issued a press release
announcing to the public the final outcome of this
research:--
Inhalation of the smoke did not produce
any s[uamous cell lung cancer, a type often
reported to be associated with smoking by
~umans, said a book from the Council.
More than I0,000 mice inhaled the smoke
from over 800,000 ci@are~es during the
s~udy. The undertaking, with related
projects, cost some $12-million ....
The study also found that mice in which
lung cancers were ~irst induced by a
chemical/-~-I~ did not ~et significantly
increased lung cancers when la~e~ exposed to
lon~-te~m cigarette smoke inh&lation.~J-~-z~
246 .
247 .
248.
CTR Press Release, "Findings Published on Cigarette Smoke
Inhalation Study With Mice," November 9, 1984 (CTR 3881:
65008 5563; Gertenbach Duke/Rogers Exh. 13). Tab 153.
The =chemical" was induced lung cancer was BAP.
This phase of Microbiological's work was to determine
whether, ~iven a previous application of a known
cancer-inducing agent, cigarette smoke acted as a
"promoter', an effect which has been frequently
att~iDuted ~o the ~oduc~ in the literature.
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Further. all types of lung tumors
identified occurred at about the same
Ereguency in the smoke-exposed mice, in
"sham" mice (animals treated identically but
without smoke exposure) and in mice ke~t on
the shel£ as controls.
A foreword to the book b7 Dr. Sheldon
C. Sommers, Scientific Director of the
Council, said the project "represented a
determined effort to develop a suitable
animal model involving chronic cigarette
smoke exposure of inbred mouse strains known
to develop various histopathological types
of lung carcinoma after intrattacheal
administration of pure chemical carcinogens."
Thus, the SAB has funded at least three animal
inhalation studies, all of which yielded negative results.
(3) Other CTR Funded Projects
In addition to the foregoing, CTR has funded a vast
number of additional studies. An analysis of these activities
is beyond the score of this report. There are, however, a few
anecdotal comments which bold the potential ~or significant
affirmative evidence:
° Two CTR grantees have received Nobel prizes.
CTR funding once kept the Framingham study
alive. This highly-regarded, prospective
epidemiological study has yielded both favorable
and unfavorable data, a~d no expert would quibble
with its independence.
CTR funding initiated the Finnish Twin study.
which has now been continued by the Finnish
government.
Many (and perhaps most) of CTR's funded projects
have been jointly funded by the National
Institutes of Health, thus removing any doubt of
independence.
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CTR has funded mote smoking and health research
than all voluntary health organizations
combined. Further, the small fraction of CTR's
budget devoted to public relations compares very
favorably to the American Cancer Society, which
has a huge PR budget and funds very little
research.
(4) ~S Inc,
The tzansference o{ 3i's functions to CTR in 1971 will
be viewed as destroying any claim that CTR is "independent" of
the tobacco companies. It likely will also taint any claim o~
the independence of the SAB, since fine distinctions will be
lost on the jury. Perhaps more importantly, the work product
protection to which an automated litigation support system is
normally entitled is at grave risk.
All possible effort should be taken to preserve LS,
Inc.'s entitlement to work-product protection. Contingency
planning should also be made in the event that the protection
is breached, so that alternative mechanisms are available.
2. AMAIERF
~laintiffs' Contentions
In late 1963, shortly before the first Surgeon
General's Report was issued, the industry and AMA agreed to
fund research concerning smoking and health. Plaintiffs will
argue that this was intended to silence the AMA's voice in the
smoking and health area, to obtain the AMA's support in
opposing the Federal Cigarette Labeling and Advertising Act,
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and to reassure the smoking public and mollify Congress that
the AMA was studying the problem of smoking and health./-~-zz
In fact, the ~ frittered away the money on worthless
projects. The industry's scientific directors and others at
the individual tobacco companies criticized the AMA research on
the basis that "not more than 50 percent of the program was
relevant to smoking," with "only 2 percent . . allotted to
carcinogenesis." Moreover, approximately "one-half of the
grant money has been allotted to the five universities with
which the committee members are directly associated." These
criticisms were not revealed to the public.
Afro[ a decade, the ~ terminated the AMA/ERF
p=oject, and stated that the relationship had "blackened" the
AMA'$ image. The industry struck back, stridently c:iticizing
the final report of the AMA/ERF in a press release.
Supporting Tegtimony and Documentation
On December 4, 1963, shortly before the first Surgeon
General's Report issued, the tobacco industry orchestrated a
significant coup: it succeeded in buying off the American
249 .
Se___~e "Transcript Of Cigarette Litigation Lecture Given At
The Middlesex County Trial Lawyers Association Meetinq o~
Wednesday, May ~0, 1984" delivered Dy Marc Edell at Ii.
TaD 5.
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Medical Association ('AM~') for most of the next decade./-/-z/
On that date, the AMA's House of Delegates approved a program
of research by its Education and Research Foundation
"to p~obe beyond statistical evidence, to search for answers
not now available to such questions as which diseases in man
may be caused o[ induced by the use of tobacco."'/-LL/ The
AMA/ERF ~[ogram was to De financed entirely by the U.S. tobacco
industry, pursuant to an agreement entered into in February
1964.~/ The AMA was not slow in expressing its gratitude.
250.
251 .
252 .
Dr. Alan Blum, a former editor of JAMA, characterized the
~ndustry's funding of the AMA/ERF project as "a grant to
buy off the complacency, and more importantly, the
silence of the AMA for 14 years." C. Kenney, The Boston
Globe Macazine, "The Antismoking Guerillas" (May 4,
1986). TaD 155.
Se__~e Report of the AMA Board of Trustees, Supp. Rep.: Q
"Tobacco and Health," undated (T 0022314). Tab 154.
As i: had not dose with TIRC/CTR, Liggett participated in
the AMA/ERF project. At a "special conference" held on
February 4, 1964, Liggett's chief executives and
scientists discussed whether to support the project. The
minutes of that meeting record that Liggett's President,
Mr. Toms, "stated that he had a very strong feeling that
Liggett and Myers Should undertake to work with the
industry on industry-wide basis and on the general
problem of smoking health. He also expressed a fear that
he would not like industry to come uD with something
s~i@nificant in the general area of improved smoking
products as far as health is concerne~ and for Liggett
and Myers not ~o be part of this development. ('Special
C~nference Held With Mr. Toms amd Mr. Harrington on
February 4, 1964" [6026563] [emphasis added].) Se.__~e Tab
13.
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On February 28, 1964 its Executive vice President,
Dr. Blasingame,/-L~ wrote the FTC urging it not to require
warning labels on cigarette packages:
With respect to cigarettes, cautionary
labeling cannot be anticipated to serve the
public interest with any particular degree
of success. The health hazards of excessive
smoking have been we~l publicized for more
than ten years and are common knowledge.
IT]he answer which will do the most to
protect the public health lies not in
labeling (which is likely to be ignored),
but in research. The AMA House of Delegates
stated this when it approved [the AMA/ERF]
program.~/~-it
On Septembe: 5, 1967, the AMA issued a press release
concerning the work of the AMA/ERF that began by posing the
question "Is smoking a psychological addiction with deadly
overtones or more in the nature of a bad habit?"z-L~" Hill &
Knowlton distributed copies Of the press release under cover of
253.
254.
255.
Some years later, Reynolds' Vice President and General
Counsel, in a letter to his counterpart at Brown &
Williamson, referred to Dr. Blasingame as "our old
friend'. (Letter from H. H. Ram~ to Addison Yeaman,
June 16, 1970 (1003040101; 65005 1867; Bowling Ci~ollone
Exh. 32). Tab 156,
Letter from AMA to Federal Trade Commission, February 28,
1964 (1005037377). Tab 157.
A~4A News Release, "Three-Year Program Stimulates
ToDacco-Heal~h ResearCno" September 5, 1967
(1003042795). Tab 158.
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an "In{ormation Memorandum" dated Septembe~ 8, lg67~'" in
which it took some comfort from the "tone of the release [as]
shown in the second paragraph: "the best estimate of
clinicians and scientists in the field is that cigarets are a
health hazard. But they admit they don't have the scientific
data yet to establish why and how."
By la~e 1971, even the AMA had had enough and withdrew
fccm the project (or vice versa?). The AMA's executive vice
president advised the Tobacco Institute that:
• . . he regards the p[ogram as a great
liability - that from AMA's view it has only
caused further blackenino of AMA's image.
He said from the industrz's standpoint the
research has produced no evidence to clear
cigarettes from the generally accepted
conclusion that they cause "lung carcinoma"
and other maladies. He said he thought the
latte: point would be widely reported as the
reason the industry decided to terminate the
program, regardless of what is said by
either par~y about i~. [He] also made these
points:
I, He is most anxious to avoid any
incident which will create displeasure
with AMA ~mong tobacco area
Congressmen--he said AMA needs their
support urgently.
2. "He i~told t~at 85% of the ERF :esearch
with tobacco funds has been "useful
basic research" but that through
neglect by all concerned no effort has
Hill & Knowlton Information Memorandum, "AHA Re~ease on
AMA-ERF Tobacco Research Progcam," September 8, 1967
(1003042794). Tab 159.
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.!
really been made to impress anyone in
or out of ~ with this.
Du~ing the course of the AMA/ERF project, elements
within the industry were guite critical over the direction in
which it was headed, or, rather, was no_._~t headed. Quite early
in the program, a Philip Morris report concluded that "only
of the effort has Dean allotted to ca[cinogenesis, and this
single p:ogect involves research for agents which will
stimulate immunoloqical responses in the host."~'~ Equally
appalling: "Approximately one-half the grant money has been
allotted to the five universities with which the committee
members are directly associated."~'" Philip Morris sent a
copy of this study to Mr. R. P. Roper, with the observation that
While we recognize that in spite of the very
extensive studies which have ~een made in
the past there may still be gaps in our
knowledge of the pharmacology of nicotine
which the ~ Committee might feel it
desirable and necessary to close, we are
wonderin@ if this area of effor~ should
receive as much attention as they are ~iving
257.
258.
259 .
Memorandum from william Kloepfer, Jr. to Horace R.
Kornegay, "Repor~ on Meeting at AMA re ERF tobacco
program," September 3, 197i (1002607354) (emphasis
added). Tab 160.
Memorandum from R. P. Carpenter to Dr. H. Wakeham, "AM.A
Education and Research Foundation Fund-Tobacco and Health
Committee," December 2, 1965 (1002905184). Tab 161.
Id. Two of the AMA/ERF committee members - Bing and
Seeve~s - also served at various times on the TIRC/CTR's
SAB.'
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to it to the almost total ~xc~usion
carcinogenesis ~hith we thouqh~ wa~
major smokin~ and healkh p~oblem. We
suspeck that one reason for this is merely
that o£ slmple ezpediency. It Js ~elatively
easy foc an invest~9ato~ carryinq ou~ a
slmple line o£ pharmacological investlgation
wi~h va=1ous chemical compounds to add
nicotine to his lis~ and thereby qualify for
an AMA qrant.~,
The AMA/ERF attempted to defend the direction of
re~ea~ch three years late~, asserting that "[w]ith~n the
context o~ the large amoun~ of Federal funds availab!e at
time for all types of resea:ch and the level o~ sup~or~ for
work in ca=clnogenesis, [APLF/ERFI decided ~0 concentrate its
efforts on fundamental ca~dioovascular, respiratory and
psycho-pharmacological ~esearch.
A ~econd Philip Morris documen~ ~e~orts that industry
scien:ists a~ending an AMA/ERF p~og~am in $co~$dale, A~izona
on May 6-8, 1970 concluded that "~ot more than $0% of the
p~ogram was relevant to smoking" and that "~ittle o~ scientific
significance wLll emerge f~om ~his program ~n the foreseeable
260.
261.
Memorandum from H. Wakeham to R. P. Rope~, "AMA Education
and Research Foundation Fund-Tobacco and Health
Committee," December 9, 1965 (1002905182; PM 770 Set).
Ta~ 162.
Meeting of the Committee for Research on Tobacco and
Health, Summary Minutes, January 30, 1968 (I002905282; PM
7~0 Set). Tab 163.
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future."!L~-~" Ligget~'s Dr- Mold attended this same meeting
and was equally critical.~''~
Certainly, the tobacco industry was displeased with
the AMA/ERF's final report on the project, issued on May 27,
1977:
Valuable information has been obtained
relating to distribution, metabolism,
excretion and toxicity of nicotine absorbed
by the human body via cigarette smoking. I~n
the area of ca~cinoqenesis, the Committee
restricted the number of awards because
cancer research was being ~enerously
financed b.y the National Institutes of
Health and other a@encies. Nevertheless,
the demonstration of potent co-carcinogens
in tobacco and the potential value of the
measure of inducibility of aryl hydroxalase
as a determinant of susceptibility to lung
cancer reoresen~ some of the more
significant contributions in this area.
Emphasis was placed on the impact of
cigarette smoking of the physiology of the
cardiovascular, respiratory and central
autonomic nervous systems. The Co~ittee
believes that the bulk Of research s~onsored
by this project supports the contention that
c~arette smokinq ~lays an important role in
262.
263 •
"Comments on AP~-ERF Program for Tobacco and Health From
the Research Directors Of the Supporting Companies,"
undated (1002905156; PM 770 Set). Tab 164.
Se__~e, Memorandum from James D. Mold to w. w. Bates, Jr.,
"AMA-ERF Program of Research on Tobacco and Health,"
June 16, 1970 (RC 6021932; Bates ~ipoilone Exh. 25,
Provost Cipollone Exh. 2??). Tab 165. Alexander Spears
of Lorillard was also critical of AMA/ERF ('the program
dealt largely with acute effects of nicotine and there
were very, very few projects that were very relevant, had
any ~elevancy really to smoke ~er se an~ cardiovascular
disease ") (Spears Cipollon9 315).
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the development of Chronic obstructive
pulmonary diseases and constitutes a ~rave
~gnqer to individuals with preexisti~
diseases of the coronary arteries./~-i
Testifying before the U.$. House of Representatives'
Interstate and Foreign Committee's Subcommittee on Oversight and
Investigations on October 5, 1978, CTR's Dr. Robert Hockett
attempted - unconvincingly - to distance the industry from the
dire bottom-line conclusions of the AMA/ERF final
The Tobacco Institute also countered the final report
of the AMA/ERF with a Press Release, August 7, 1978, in which it
quoted Mr. Kornegay as having said that "[tIbe only real news in
the A/~A document is the contrived timing of its release to
coincide with and discredit President Carter's trip to visit
tobacco growers in North Carolina.
264 ,
"Tobacco and Health," (Dye Exh. 2, Horrigan Dewey ~xh. 3)
(emphasis added). Tab 166.
(Illegible exhibit number: 003789). TaD !67.
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PossiBle Industr~ Response to AMA/ERF Studies
The industry should not accept the unfounded charge
that AMA/ERF was an effort to buy AMA silence. In the first
place, the charge directly challenges the integrity of the AMA,
a proposition which will be difficult to sell. Second, it's
not true, as evidenced Dy the fact that in June 1964, the AMA
officially stated at its annual convention that "The American
Medical Association is on record and does recognize a
significant relationship between cigarette smoking and the
incidence of lung cancer and certain other diseases, and that
cigarette smoking is a serious health hazard."
The industry should further respond to criticism of
the AM~/~RF in the same way it does to criticism of TIRC. The
industry realizes the AMA/ERF research grants were not the
perfect solution, but they were an attempt to try to resolve
some of the health questions related to smoking. The industry
should not attempt to deny or hide the circumstances
surrounding the termination of the AMA/ERF funding because
plaintiffs have documents from TI which set forth the
circumstances. The least damaging strategy is a matter-of-fac=
attitude.
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3. Other Industry-Funded Research
Plaintiffs' Contentions
While the industry has funded a small number o£ other
"outside" research projects, it has done so only when it has
received clear advance ~ssurances of a "favorable" outcome.
In
the most conspicuous such case, it funded the ardent,
pro-tobacco research project of a man late~ alleged to bare
acted improperly,
SuoDortin~ Testimony and Documentation
The tobacco companies funded a modest amount of
research outside the framewo:k of TIRC/CTR. One such project
was tha~ of Dr. Gary L, Hube:, then of Harvard, who managed to
ingratiate himself with the industry in one of his early
letters soliciting funds with his view that "it is our
impression that t~e number of people at ~otentia! risk from
tobacco consumption is extremely small relative to the very
large number of people who now smoke."~2-~-~/ Dr. Huber also
spoke of the "zealous campaign" of the "anti-tobacco forces"
and stated that "i personally b~lieve, that this is the area in
which most of ~he anti-tobacco forces will he concentrated in
266. Le::er from G. Huber to A, H. Galloway, May 4, 1972
(!~02905316). Tab 168.
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the near future and it therefore is of crucial importance to
support good work along these lines as soon as possible.-~/-tl~
267 .
Id. See also, letter from Gary L. Huber to A. H.
Galloway, July 7, 1972 ('anti-smoking zealots')
(I002905337). Tab 169. Dr. Huber appeared before the
March i, 1980 meeting of the Tobacco Institute's Board of
Directors and made a "presentation, a discussion titled
'A Controversy at a Crossroad', considered the present
scare of medical knowledge on matters relating to tobacco
.~h, including a number of matters inconsistent
and hea~
wi:h various charges made against tobacco, the many
unresolved questions and some of the area [sic.]
requiring further research." The Tobacco Institute, Inc.
Fcrty-S~xth Meeting Of The Board Of Directors, March l,
Igs0 (No LI5 number; Lorillard 770 Set; 04209209). Tab
170.
The following year, there appeared in the Tobacco
Institute Newsletter, No. 276, (April 21, Ig81) an
article concerning Dr. Huber:
GARY HUBER, M.D., director of the Univ. of
Ky. ToDacco and Health Research Institute, was
~em~orarily reassigned to other duties until an
investigation of ~ossible criminal char~es is
completed. Huber faces a barrage of charges
including those that he has misused
Institute money, falsifie~ research data, and
received money from toDacco companies, a
Lexington newspaper reported.
Huber told the newspaper he iS being harassed
and threatened and his reputation smeared by
disgruntled former and current employees who
want him fired.
Former Surgeon General Te~, in a Lexington
news story, called Huber a prejudiced researcher
who never should have been hired by the
University. The article quoted a Council for
Tobacco Research official saying Huhe~'s
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Not surprisingly, the[efore, Huber's research resulted
in a ringing endorsement of smoking. As reported at the
American College of Chest Physicians meeting of October 24-28,
1979:
"Does tobacco smoking impair alveolar
macrophage function?" -- Gary Mube~,
Boston. Contrary to many reports, his
anzmal studies with intact lungs show that
cigarette smoking does not impair the
activity of pulmonary macrophages, the key
host defense cells of the lung. On th._..~e
contrary, he.said, the smoke appears to make
the cells more effective, producing, in
effect, a "super macrgpha~e." This
macrophage's bactericidal ability is as good
or better than macrophages in
nonsmokers.-t~-zz
Philip Morris and others in the industry, including
Reynolds, contributed funds to the Sloan-Kettering Institute.
In 1964, James Bowling (PM) reco.~ended continuation of the
company's contribution, noting that:
Dr. Frank Morsfall, Jr., Director of
Sloan-Kettering Institute, has publicly
expressed his doubt that smoking is
implicated in carcinoma causation. Dr.
Horsfall's opinion (couple4 with his
demonstrated liking for our Marlboro
267.
258.
Footnote Continued From Previous Page
reputation has been tarnished by ~ro-tobacco
co~'m~ents.
(No LIS number; Lorillard 770 set; 03020219) (emphasis
added). Tab 171.
Memorandum, L. Zahn to w. Hoyt, November 2, 1976 (50027
4086) (emphasis added). Tab 172.
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cigarettes) has been beneficial. As head
the nation's principal cancer research
organization, he has tremendous influence.
The industry earlier was made keenly aware
of Sloan-Kettering's influence when
Sloan-Kettering researcher, Ernst Wynder,
(Ph.D.) led the anti-cigarette attacks. He
exploited his Sloan-Kettering association to
the indust~y's distinct d~sadvantage. As an
indication of the attention he received.
TIM~E magazine featured Wynder's attacks on
cigarettes -- with ~ictures -- on seven
different occasions.
In the fall of 1962, Dr. Horsfall and other
Sloan-Kettering officials including Public
Relations Vice President Carl Cameron ~
subjecting Wynder to more rigorous screening
procedure before letting him speak in the
name of the Institute. This has had a
~roper and pleasing effect.~-z~"
The industry also funded a project a: the U.C.L.A.
Medical School. As to one phase of this work, :elating to lung
macrophages and lymphocytes, the Medical School reassured the
industry that nothing untoward was likely to turn up (i.e., the
Gary Huber approach): "Although one cannot with certainty
predict the outcome of such experiments, our preliminary
results suggest that we are not likely to find any siqni..fican:
269 .
Memorandum from James C. Bowling to C. H. Kibbee,
November 23, 1964 (i005038364) (emphasis added).
173.
Tab
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i__mpairment of defense cell function in the smoker lung. On the
contrary, smoker cells appear to be activated."/-/-~I
The least damaging response to the Huber and UCLA
issues is a matter-of-fact attitude. The substance of the
studies conducted bythese researchers is favorable to the
tobacco companies' position. Thus, uniess the defendants give
plaintiffs credibility issues by denying what they know about
the outside studies, the issue marginally helps defendant.
270. Letter from M. Cline to D. Hardy, Esq., September 12,
1973 (010238) (emphasis added). TaD 174.
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V. STRICT LIABILI~'Y/NEGLIGENCE ISSUES
A. The Risk/Benefit Test: Cigargttes Are Per Se
Defective and Unreasonably.Dangerous
Plaintiffs" Contentions
Plaintiffs have contended that defendants are strictly
liable in to~t because the risks associated with cigarette
smoking outweigh the benefits. Under their analysis, the first
prong of the risk/benefit analysis asks whether the benefits or
usefulness of a product outweigh the likelihood it will cause
serious injury. Strict liability can be imposed without having
to determine whether the product design could have been
rendered safer. Besheda v. Johns-Manville Products CorD., 449
A.2~ 539, 545 (N.J. 1981). Only if it is determined that a
product's utility outweighs its risk, does the inquiry move to
the second prong of the risk/benefit analysis: Could a warning
or different design have rendered the product safer? Id.
Plaintiffs have raised the risk/utili=y argument with
frequent emphasis, in a Drier filed in Cipollone, the
plaintiffs stated:
Plaintiff may well contend at or before
trial that the social utility of cigarettes
is so far outweighed by their risk that the
second prong of the analysis should neve~ be
considered -- that cigarettes should be
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follows :
252.
considered defective, as a matter of
law./-Lt"
Marc Edell subsequently elaborated on this point as
Explain failure to warn:
That's a pretty sophisticated
question. There are two types of
failure to warn cases, all right?
There is a failure to warn case where
you have a product that can be used
safely. For instance, a solvent where
if you read the container it says to
use in a well-ventilated area. And
there is nothing wrong with the solvent
as long as you use it properly. Now as
long as there is a warning on that
product, the product is not defective.
Then there is another kind of case,
And that is a case where we have
determined, that the product, despite
that its got a risk that cannot be
deleted from the p~oduct, is a product
that has such social utility, such as
pharmaceutical dru~s, that despite that
there are some risks in using it, a
warning immunizes the mamufacturer from
any liability by providing the use:
with an informed consent aS tO the
potential health hazard. You don't get
to the issue as tO whether or not the
warning immunizes you from liability
until the jury first makes its decision
that the benefits do, in fact. outweigh
the risks, and unless the jury comes to
that decision, the tobacco companies
Plaintiff's Reply Brief on Motion in Limine to Strike
Risk-Utility Evidence. Cipollone v. Li~ae~t & Mayors
Tobacco Co., etal., (D.N.J.) (filed December 9, 1985).
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cannot use the warning as a shield to
liability.'--t~"
At this presentation, Edell renewed his threat to seek
partial summary judgment and/or a directed verdict on the issue
of liability. He said, "under certain conditions the judge may
enter an order as a matter of law that the product is
defective, and then you only decide whether or not the
plaintiff contributed to his or her injuries by voluntarily
smoking.- ~/-Li~ This contention ignores, of course, issues of
alternative causation.
Supporting Testimony and Documentation
The "risks" of smoking are well documented, we can
expect to see plaintiffs parading evidence that cigarette
smoking causes 340,000 (or more) premature deaths per yea~ in
the United States alone, that morbidity is exceedingly high,
and thet the societal cost (in terms of medical care, lost work
days, etc.) approaches $65 billion per year. Even without
expert witnesses, plaintiffs may be able to adduce this
evidence through governmental reports admitted under F.R.E.
803(8) or state equivalents.
253.
254 .
Presentation of Mr. Edell to Oppenheimer & Co., January
16, 198~, at 16. Tab 3.
I__d. at ~ (emphasis in original). Accord Plaintiff's
Answers to Defendants' Contention Interrogatories in
Cipollone. Tab 4.
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The "benefits" of smoking a:e far less well
documented. In the 1964 Report of the Advisory Committee to
the Surgeon General, the following helpful conlment is made (at
Medical perspective requires
recognition of significant beneficial
effects of smoking primarily in the area of
mental health.
These benefits originate in a
psychogenic search for contentment and are
measurable only in terms of individual
Dehavior. Since no means Of quantitating
these benefits is apparent, the Committee
finds no basis for a judgment which would
weight benefits versus hazards of smoking as
it may apply to the general population.
Apart from this anecdotal comment, however, statements about
the beneficial aspects of smoking are rarely, if ever, found in
governmental reports.
Nor have the companies developed a fully satisfactory
strategy for articulating the benefits of smoking. In New
Jersey, for example, Mr. Ho:rigan (Reynolds) testified that the
benefits which smoking provides to its consume:s is that
"people who smoke find it pleasurable."~'---!~t Mr. Heimann
(American) identified only taste and pleasure.~l~-!~ Dr. Frank
255. Horrigan Dewey Depo. at 71: se__e Dey Depo. at 332.
256. Heimann Rooers Depo. II at 84.
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G. Colby (Reynolds) was a little bolder in his response. He
testified that even if it were proven that cigarette smoking
causes cancer, he would not necessarily reco~end a ban on
cigarette sales because cigarettes allow people to cope with
society's problems. They are "life savers° to some
people. ~-Lt"
Plaintiffs will argue that a subjective benefit of
"pleasure" cannot be accorded much, if any, weight in the
risk/benefit analysis. Moreover, they will argue that the
defendants" own documents belie this benefit. For example,
they will cite a 1957 study conducted for Liggett which
concluded that the vast majority of those interviewed wished
they coul~ stop smoking.~'~ Similar documents can
undoub~ed!y be found in every company's files.
On a personal level, the risk/benefit equation appears
lopsided. It is perhaps for this reason that the Cioollone
defendants have sought to expand the analysis to include
societal concerns. Mr. Dey, for example, teszified that the
benefits which society derives from smoking include pleasure,
tax revenue, a favorable impact on the balance of trade, and
economic gain to farmers and retailers.~'v Indeed, the
257 .
258.
259.
Colby Barnes Depo. at 177-78, 230-49.
Provost Depo. Ex. 28, at p. 15.
Dey Depo. a~ p. 332.
192 -
6~157945~
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James Bowling, an executive of Philip Morris, made a similar
statement in deposition.
Possible Industry Response
Most witnesses said that they did not know what they
would do if it were proven that cigarette smoking were p[oven
to cause lung cancer because it was too speculative. The jury
is likely to believe the witnesses are simply ducking a touqh
but important question.
The following response is suggested:
(!)
It has not been scientifically proven
that cigarette smoking causes lung
cance~ [or any oche~ disease];
(2) New scientific evidence may lead to the
discovery of the cause;
(3)
The new discoveries may identify
something with which the industry can
deal. [This is a delicate way of
saying the industry can modify the
product to remove the carcinogen];
(4) A lot of people derive benefits from
smoking;
The industry, the public, and smokers
would Rave to evaluate the new evidence
at the time it is discove:ed and make a
decision;
(6)
The short answer is: It is impossible
to know what the industry, society o:
smokers would do.
262. Bowling Depo. at 535.
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This answer is presumably the actual analysis that should
occur. Second, it emphasizes the same "risk/benefit" analysis
that each smoker is presumed to engage in. Third, and most
importantly, it avoids conceding that the risks of cigarette
smoking outweighthe benefits.
In fact, this is the analysis engaged in by society
through its elected representatives. In 1964, and three times
thereafter, Congress considered all of the ~isks and all of the
benefits and determined that the benefits outweighed the risks
so long as smokers were formally warned of the risk. Even most
of the severest critics of smoking do not favor prohibiting the
sale of cigarettes. The defense must gain concessions from all
of plaintiffs' witnesses tha~ they do not favor prohibition on
the sale of cigarettes. Once it is clearly conceded that the
industry is marketing a legal product, many of the so-called
"risks" become much less significant.
B. Design Defect: Cigarette Manufacturers Have ?ailed to
Design and/or Market Safer Cigarettes.
i. Plaintiffs" Contentions
Under the second prong of the risk/benefit analysis,
the jury must consider whether defendants could have reduced
the risk to the greatest extent possible without hindering the
basic utility of cigarettes. Besheda, 44g A,2d at 575; Feld~nan
v. Lederle Laboratories, 478 A.2d 374, 386 (N.J. Ig@4); Dawson
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v. Chrysler Corp., 630 F.2d 950, 957 (3d Cir. 1980) (applying
New Jersey law). Thus, the issue is: Could the defendants,
considering the state of the art (or all that was known to
experts in the field), develop a cigarette which would be less
dangerous to smokers without changing the product so much that
it would not possess, or it would be too expensive to possess,
the basic characteris:ics that smokers desire?
Plaintiffs have contended that the cigarette
manufacturers knew or should have known of scientific data
linking cigarettes and lung cancer during the 1930s or, at
latest, the l~40s. In any event, the evidence is irrefutable
that the companies were aware by 1954 of the early
epidemiologic studies and the wynder-Graham mouse skin-painting
study. They will further contend both that the companies
should have developed a "safer" cigarette through testing their
products and takin@ steps to reduce the risk. In this
connection, plaintiffs wil__._!l focus on (i)
selective filtration, palladium cigarette, and may focus on
(ii) effective filtration, (iii} other means o~ selective
reduction, (iv) low tar and nicotine cigarettes, and (v)
tobacco/cigarette substitutes such as nicorette gum.
Supportive Testimony and Documentation
In response to plaintiffs' contentions, the companies
have broadly a~lmitted that they did not attempt to manufacture
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and market a "safer" cigarette. The explanation given is that
no cigarette has been found "unsafe" and. hence, it doesn't
make sense to talk in terms of "safer" cigarettes. Further,
product modifications have generally been described as being
developed in response to perceived or actual consumer demand.
While filtration and the development of low tar and
nicotine cigarettes might properly be characterized as efforts
to respond to consumer demand, the same is not necessarily true
of efforts at selective filtration. It is unlikely that
evidence can be adduce~ that consumers were clamoring for a
product (like Lark) which selectively reduced ciliastats, or
for a product (like the "XA" cigarette) which selectively
reduced PAHs.
Finally, there is a tension between asserting that low
tar and nicotine cigarettes are not "safer," and the
adve:tising campaigns for those products which explicitly or
implicitly communicated the message that such cigarettes were
"safer,"
a. Specific Examples of "SaGer" Ciaarettes
Despite the disclaimers, the plaintiffs have adduced
evidence that industry membe:s have attempted to manufacture
"safer" cigarettes. We can expec~ plaintiffs to point to one
or more of these -- and, particularly, Liggett's XA cigarette
-- as representing the state of the art with respect to
cigarette design.
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(i) Charcoal Filters
The work of Liggett and ADL leading to the development
and commercial exploitation of the Lark charcoal filer grew out
of the first phase of the two companies" joint study.
According to what appea~s to be an inteInal Liggett memorandum
explaining the medical basis for developing the Lark filter.
During 1957 [the Liggett/ADL] program was
expanded to include a general study of the
pharmacological effects of cigarette smoke
and its components. In the succeeding
years, this experimental program clearly
demonstrated a number of undesirable effects
arisinq from the ~[esence of volatile and
irritatinq vapors in the smoke stream. Many
of these effects could be accounted for by
the presence of hydrogen cyanide in small
but detectable quantitzes in ciqarette
smoke. One of the primary and potentially
most significant effects was the discoverM
that cigarette smoke, and its hydrooen
cyanide component, inhibited, and in
excessive ~uantities destroyed, the ciliary
action of mammalian trachea."/-z-~
In the wake of this discovery, according to the
Liggett memorandum, "techniques for the accurate determination
of the small quantities of hydrogen cyanide present in smoke
were developed in our laboratories" and "techniques fo~
measuring the inhibition caused by this and other smoke
263 ,
"Memorandum, Development of the Three Piece Keith
Filter," undated (illegible Ligget~ production number: RC
6030441; Bates De~c. Exh. 17) (emphasis added). Tab
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components on rabbit trachea were also refined and more clearly
established. This work confirmed the original discovery and
led to the search fo~ ways of reducing or eliminating the
amount of hydrogen cyanide in cigarette smoke."
In early 1962 Liggett's Director of Research, Dr.
Darki$, requested his laboratory to search for "a cigarette
filter which would reduce the cyanide content of the smoke
stream . "~''' Later the same year "a chance event', in
the form of laboratory tinkering, prompted Dr. Bates and the
unnamed writer of the memorandum to hit upon "the granular
material contained in gas mask canisters" as "a possible
solution to the problem."z~
With the help of a local volunteer-fire
company .... several surplus military
canisters were obtained and the
charcoal-like granular absorbent was
removed.~2-a-%" On April 180 1@63, filter
cigarettes were prepared by hand [employing
this material]. These cigarettes were found
to be remarkably low in the amount of
hydrogen cyanide leaving the filter durin~
the smokinq.process. TheZ also were found
264 .
265.
266.
Id.
NOT__._~E: Ironically, Lorillard is also reported to have
looked to World War II gas masks for a suitable filter
material; as we know, it came upon asbestos rather than
activated charcoal as the "miracle" ingredient. Se___~e
Punitive Damages Issues, The Kent Micronite Filter,
pp. in~ra.
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to_ provide a very ~mooth, rather pleasant
tasting smoke. Subsequen=Iy it was found
that these cigarettes did not inhibit
ciliary action in our test Eystem to
an~rwhere the extent found for ordinary
cigarettes./~-~
Based upon this discovery, Liggett's Drs. Keith and
Norman quickly developed a filter medium consisting of
activated charcoal manufactured from bituminous coal
impregnated with certain oxides and were able to manufactuce it
in production quantities early in January 1963.
Thus was born the Lark charcoal-filter cigarette,
first marketed by Liggett in 1963. Liggett's competitors
quickly followed suit, and by late !964, at least two
additional brands incorporating charcoal filters had been
introduced in the marketplace.~
(a) Health Claims for Charcoal Filters
Liggett certainly did not Shrink from ~roclaiming the
assetted health benefits of the Lark. On April B, ~963, its
Dan Frovost wrote Dr. Kensle¢ (ADL) enclosing "an outline of a
267.
268.
269.
~d. (emphasis added).
Letter from w. Bates, Jc. to L. Thompson, October 15,
1964, enclosing report entitled "NEW CHARCOAL F~LTER
CIGARETTES," September 30, 1964 (illegible Liggett
production number, 65005 2861). Tab 17. The two brands
were American's Tareyton and Reynolds" Tempo.
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long-~ange public relations program for Lark. including the
important medical aspects of the p~ogram, which has been
submitted to us by J. Walter Thompson." M:. Provost also
expressed to Dr. Kessler his view that "it is important to lay
a sound foundation now for the lonq-ranqe medical public
relations program.
In fact, Liggett had already launched its "medical
public relations p~ogIam." In a letter dated April 7, 1964 to
the medical corAmunity, Dr. Parkis sought to capitalize upon the
:ecen~!y-released 1964 Surgeon General's report, which
contained an obscure reference to the Liggett/ADL research
(first made public in an article authored by ADL's Drs. Kensler
and Bat~ista):
In the recent Report of the Surgeon
General's Advisory Con~rnittee on Smoking and
Health a~tention was drawn tO the inhibitory
effect of cigarette smoke on respiratory
cilia. On page 34, the Report s~ates:
"Components of the gas phase Of cigarette
smoke have been shown to produce various
undesirable effects on test animals or
organs .... One of these effects is
suppression of Ciliary transport activity,
an important cleansing function in
trachea and bronchi ....
The Re.port also notes that there is a
cigarette filter con:aininq special charcoal
270.
Letter from Dan Provost to Dr. Charles J. Kensler.
8, 1963 (No Ligge== Production number; 65009 0856;
provost Depo. Exh. 3c) (emphasis added). Tab
April
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$ones. D~y, Reavis & Pogue ~rag~
~ranules which reduces certain gases which
inhibit the act~v~y of mammalian
respiratory cilia. On page 61 of the Report
(copy attached), it states: "Activated
calbons differ markedly in their adsorption
characteristics. Carbon filters previously
employed in cigarettes do not have the
specific power to ~crub the gas phase.
has been reported that a filter containing
s,pecial carbon granules removes gaseous
constituents which depress ciliary
activity. (28)" The reference cited is
"New England ~ournal of Medicine"
C.J. and Battis:a, S.P.. 269: i161-iI~6,
November 28, 1963).
The special~y treated charcoal-~ranule
filter discussed in the Kensler and Battista
pFper was the p~ototype of the one which is
now available to the public on Lark
ci@ar~ttes. Since some of y@ur ga~ients may
have heard of this filter throuoh the lay
press, and maz .inquire about its basis in
science, we believe you may w~sh to have
this information on hand.
While thus citing the Kensler/Bat:is~a pub!ira:ion,
Liggett, in its message to the American medical Community,
conveniently did not advise its readership that the two ADL
scientists had undertaken the work upon which they reported
under contract with a cigarette maker - Li=~ett.
In a draft of this le~zer, which it forwarded to ADL
for its "comments', Liggett alluded to its plan to present a
paper concerning the Lark filter to the °54t~ annual meeting of
271.
Letter from F.R. Darkis to "Dea~ Doctcr," April 7, 1964
(65009 1314: Provos: De~o. Exh. ~3) (e~phasls added).
TaD 19.
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the American Association fo~ Cancer Research" (just in case its
hardly-veiled health claim was not already plain enough.)/-/-£~
Liggett wrote ADL on March i0, 1965, enclosing "a copy
of a background s~eet On Arthur P. Little, Inc. for us~ in
press kits overseas," noting that "It]his is essentially the
same capsule sum~ary of ADL which was widely used in our press
kits in the United States in 1963 when La:k was
introduced."'''~ Liggett also asked ADL to apprise i~ of
"any newsDreaks" and stated that it was "not very happy about
the leveling-off of the edito~ia! noise on the subject of
selective cigarette filtration .... "'''~
La~e~ the same month, Liggett advised ADL that:
[W]e are working very closely with a
free-lance writer . . . who is har~ at work
on a very comprehensive stocy on advance
cigarette fil~ers ~or ESQUIRE magazine, w_~e
have @iven him a vast amount of written
materials,..man7 suqqestions. ,and perhaps
some ~ad information .... He's a good
writer wit~ a positiF9 attitude on tobacco
and heal~h ....
272 .
273 .
274 .
275 .
Letter from Ligge~: to At:hut D. Little, March B, 1963,
(No Liggett production nu~er; 65009 0857; Provost Depo.
Exh. 4) (emphasis added). Tab 20.
Letter from Liggett to Arthur D. Little, March 10, 1965
(No Liggett production numbe~; 65009 0883: provost Depo.
Exh. 14). rap 21.
Id. (emphasis added).
Letter from Liggett to Arthur D. Li%z!e, March 26, 1965
(NO Liggett p~oduc~ion number; 65009 0855; Provos~ Depo.
Ezh. i) (emphasis added). Ta~ 22.
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Liggett also referred, with enthusiasm, tO the "Lark religion-
displayed by the author of an article appearing in the "cover
story for the SATURDAY EVENING POST" and notified ADL that
"{w]e are looking forward, with our fingers crossed, for
favorable stories in the ELK'S MAGAZINE, in May and POPULAR
MECHANICS in August."2-~-"
Later, in 1967, Liggett engaged in an extended
exchange of correspondence with The Reader's Di~e~t over what
Liggett felt was that publication's failure to take sufficient
notice of the supposed ability of the Lark filter to alleviate
adverse ciliary consequences and to promote other benefits to
human healzh./-/-Z"
(b) Challenges to the Efficacy of Charcoal
Filters
Subsequently, there occurred an embarrassing
Liggett) exchange of correspondence with Dr. George E.
276.
277.
Id.
E.o.: Letter from Liggett to The ~eader's Diqes.t,
February 2, 1967 (Provost Depo. Exh. i0). TaD 23.
Letter from The Rea4er's Diqes~ to Liggett, February
1967 (Provost Depo. Exh. ii). Tab 24. Letter from Th___~e
Reader's Digest to Liggett, April 3, 1967 (PrOVOSt Depo.
Exh. 12). Tab 25. and Letter f~om Liggett to Th___~e
Reader's Di~est, May 31, 1967 (65009 0879; Provost Depoo
Exh. 13). TaD 26.
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Moore/-~z~ of the Roswell Pa~k Memorial Institute ('RPM~') for
which Liggett had only itself to blame. On May 31, 1967, the
Director of its Research Department, Dr. Bates, wrote Dr. Moore
278 .
Dr. Moore was the author o~ a report issued on August 29,
1966 which was severely critical of certain filter-tip
cigarettes and which concluded that "none [of the tested
filters] is really protecting the smoker from possible
lung cancer, emphysema, cardio-vascular difficulties, and
other diseases. Roswell Park Memorial Institute Press
Release, Augus~ 29, 196% (RC 6017613; 65005 2492). TaD
27. According to this report, "Pall Mall filter tip
cigarettes appeared to be the worst of the eight brands
tested" and ~hat "[i]t is alarming to note that Pall Mall
filter tip cigarettes pass more tar and nicotine to the
smoker than do the regular Pall Malls without filters."
Dr. Moore also stated that:
These curren~ results destroy the myth tha: all
filters are he!~ing to protec~ the smoker against
the deadly effects of cigarette smoking.
Many filters are just not doing a job and until
the cigarette industry accepts the tesponsibi!ity of
protecting their customers who refuse to stop
smoking regardless of the hea~th warnings, we will
continue to see a staggering and unnecessary death
rate due to cigarette smoking.
The tobacco industry apparently realizes tha~
the public wants safer cigarettes. This is evident
in the increase in filter tip cigarette production
from 2 percent of the total cigarette output in 1952
to 64.7 percent in 1965.
Id. Hill and Knowlton circulated copies of Dr. Moore's
press release to "Company Public Relations
Representatives," "General Counsel" and the "Ad Hoc
Committee'. Letter from Edward H. DeHart to Company
Public Relations Representatives, August 29, 1966 (RC
6017612:65005 2491). Tab 28.
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('not .... to discuss the differences of opinion between you
and the tobacco industry on your recent paper: Tar and
Nicotine Retrieval From Fifty-S~ Brands of Cigarettes ")
touting the virtues of Lark and complaining that:
(Y]ou treat the "selective removal of
gaseous constituents of the smoke= so
lightly, in view of the demonstrated
ciliastic, qytotozic and macrophaqe
depressant activity that has been associated
biologically with many o~ the gas phase
constituents which are selectively removed
by effective charcoal filters ....
If these inhibitory effects are
applicable at all to men, is it not to be
expected that they woul~ mediate the effects
which you postulate are due to "tar"
leve!?/~-z~
RPMI dispatched two cutting replies to Dr. Bates's
letter, challenging ADL's (Kensler's) professional integrity.
In the first of these, dated June 3, 1967, Dr. Moore (RPMI)
wrote Dr. Bates (Liggett):
A majority of the reprints enclosed by
you involved work done by the group headed
by Kensler. Personally [ have grave
reservations about their work since it
represents a selective publication of
research. In other words, their work
contract work performed for commercial
279 .
Letter from William Bates, Jr, to George E. Moore, May
31, 1967 (65009 0869; Provost Depo. Ex~. 9 (lengthy
citations to scientific papers - all authored by Liggett
or ADL employees [authors" affiliations not disclosed tc
Dr.. Moore] omitted) (emphasis added). Tab 29.
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purposes and they publish onlZ that
information whlc~ they wish to release. For
~xample, we are qu~te aware of the fact that
they have confirmed the CaI¢inogenicity of
tobacco smoke but have not published this
information.
I have no objection to wolk performed
from such laboratories but ! think it should
be cleacly indicated in a footnote that it
was done under contract.
• . , It is regrettable that much of
this information is not available ~o us. In
my opinion, those of us who feel that a
safer cigarette can be designed are probably
the ones most likely to help the tobacco
industry in pro~ucin~ a safe~ product and
thus not only protect the smoking public but
a~so provide information which is actually
~n the interest of the industry.~
After Dr. Bates (Liggett) forwarded him a copy of Dr.
Moore's (RPMi) let:er, with the observation that "I am sure you
will hardly refrain from co~enting',~''z Dr. Kensler (ADL)
tOOk the bait, writing Dr. Moore:
It is obvious that you are ill informed on
the nature of our programs here as well as
on what we have ~ublished. You mentioned
"we are quite aware of the fact tha~ ~hey
have confirmed the Carcinogenicity of
tobacco smoke but have not published this
information'. Your statement is false as
280.
281.
Letter from George E. Moo:e to William w. Bates, Jr.,
June 3, 1967 (ADL 7157 (attachment to ~L 7154))
(emphasis added)• Tab 30.
Letter from William w. Ba~es Jr., to Charles J. Kensler,
June 28, 1967 (ADL 7154). TaD 3!.
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you can read~!y see by examining pages Ii
through 17 o~ t~e enclosed reprint.
Dr. Moore ceplied to Dr, Kensler two days later:
You are correct that you did publish
some experiments in a monograph which l
overlooked. I do not believe that this work
was done while you were on the staff of A.D.
Little, ~nc. I also believe that you have
noc published any data on the
carcinogenici~y of tObaCCO as indeoendent
research Zn a scientific journal since that
time.,-~-~/
The record in these actions discloses no rejoinder by
Dr. Kensle~ to this lethe:.
In its second response to Dr. Bates's May 31, 1967
letter, ~PMI's Dr. Book (a TI~C grantee) wrote him on June 9,
1967, proposing tha~ the industry dar____~e to challenge i~self, in
the laboratory:
! gather that different investigators
have widely diver~en~ opinions on the
relative importance of g~s and particulate
phase components as ciliastatic agents
It seems ~o me that there is an
experimental situation that one can be
exploited to answer these objections ac the
p!esent time. Since the introduction of
282.
283.
Letter from Charles J. Kensler to George E. Moore. July
5, 1967, cc. to W. Bates (ADL 7153) (emphasis added).
Tab ~2.
Letter from George E. Moore to Charles J. Kensler, July
7, 1967 (no production number(s)) (emphasis added). Tab
33.
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284 .
LARK, substantial numbers of smokers have
used cigarettes containing appreciable
amounts of charcoal. If I am not mistaken,
Hammond has shown that "smoker's cough" is a
sensitive indicator of a reduction in
exposure to cigarette "tar'. 6
we~l-financed, lon~-term study of the
smokers of specific types of cigarettes
-taking into.consideration such effects as
cough - might disclose whether reduction in
tissue exposure results from Ccnsumption of
charcoal filtered cigarettes. I sincerely
believe that if the industry were to openly
monito: the effects of thei: product, they
would be in a position to exploit ne~
developments at the earliest possible ti~e.
I understand full well that such a
study would reoresent a radical departure in
philosophy for most segments of the industr~
and I slrmpathize with the dilemma of the
industry. On the other hand, an early
solution to these problems is as important,
in the final analysis, to the in4ustry as it
is to the customers. Every major
manufacturin~ company has assembled a hiohly
competent team to study the chemical nature
of cigarette smoke and ways in which it can
be modified. Your own company has taken the
lead in direct support of biological study
of smoke constituents. It seems to me, as a
laboratory investigator, that the time has
now come for a ~reatly increased
examination of the clinical effects o~
chan~es in cioarette desion.
I would like to write a~ain to ask
for any suggestions that you m~ght be able
to offe: us.
Letter from Fred G. Book to William w. Bates Jr., June 9,
1967 (ADL 7159; P:ovos: De~o. £~h. g) (emphasis added).
Ta: 34.
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The record in these suits contains no response by
Liggett or ADL to this letter.
(c) Admissions That Charcoal Filters were Not
Safer
Sometime befoEe May 24, ig73, Liggett ~eceived an
inquiry from one of its advertising agencies concerning the
mode of operation and efficacy of the Lark filter. To assist
Dr. Mold in responding to this inquiry, his assistant, Vello
Norman, prepared a memorandum covering various technical
aspeczs of the Lark filter./-L~" The Norman memorandum begins
by noting that "[o]ver the years we have done a great deal of
analytical monitoring of the performance of the [redacted!
filte:" and that "It]he bulk of this work has been concerned
with gas phase components which we consider to be
physiologically most potent 'irritants' that are present in
smoke in significant quantities, namely hydrogen cyanide and
various aldehydes." After observing that Liggett had de~ected
5g compounds in the gas phase of smoke, Dr. Norman discussed
285 .
Memorandum from V. Norman to J.D. Mold, May 24, 1973 (RC
6029426; 65005 2927). Tab 35. We do not seem to have
copies of either the advertisin~ agency's letter to
Liggett or Liggett's response. While Liggett's counsel
have blacked-out the name of the brand whose filter is
discussed in the Norman memorandum, they failed to ~emove
one such reference (to Lark); that it was Lark, and not
some other filter with which the memorandum dealt is also
obvious from its content.
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the ability of the Lark filter to remove them and concluded
that "one cannot make universally true blanket statements with
respect to 'lightness' and filtlation." Noting that the Lark
charcoal filter "absorb[ed] gas constituents which are
pleponderantly heavier ~han air, [redacted] smoke should
contain more nitrogen and more caIbon dioxide [both heavier
than air] than smoke from cnnventional cellulose aerate [sic.]
filtered cigarettes. The difference in the quantities
involved, however, is so small that we cannot demonstrate i:
analytically and any statement that [redacted] smoke is
'!ichter' than ordinary.cigare:te smoke would be based on very
tenuous orounds."~'~
Turning to the question of the "potential harmful
effect, if any," of the gas phase components, Dr.-No:man opined
that "It]his is a complex and sometimes controversial subject
Work at Arthur D. Little (as well as by
other investigators outside the sphere of
Liggett and Myers" influence) has
demonstr&ted that many constituents of the
~as phase of cigarette smoke have
detrimental physiolo@:ca! effects in animals
(e.g., ciliary inhibition, cytotoxicity,
interfereAce with phagocytic activity of
alveolar macrop~ages, respiratory effects
etc.)
28~. Id.. (emphasis added).
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When one considels the effects noted
with pure chemicals in the light of the
quantities that are actually present in
smoke, the principal offenders would be
hydrogen cyanide, actolein, acetaldehyde and
carbon monoxide .... [C]arbon monoxide
is lighter than air and is not filtered out,
hydrogen cyanide is lighter than air and is
filtered out, and acrolein and. acetaldehyde
are heavier than air and are filtered out.
Obviously, ~qain one cannot make a
generalization with respect to lightness and
filtration efficiency fo~ physioloqically
si@n~ficant compounds.:'~;
Addressing the advertising agency inquiry about
"solids" and their "potential harmful effects', Dr. Norman was
at a loss for words: "This is even a more controversial and
complex subject than the gas phase and I shall not attempt to
discuss it." He added, however:
Suffice it to say that the particulate phase
of cigarette smoke contains many compouq@s
have been demonstrated to have detrimental
physio,~o@ical effects. At the top of the
list would he compounds such as a series of
polycyclic aromatic hydrocarbons (PCAH) some
of which have shown carcinogenicity in
animal tests, and nicotine which has a
variety of effects.
With respect to these compounds, the
Lark filtration efficiency approximately
equals that of conventional cellulose
acetate fi!te~s.;''"
I~d. (emphasis added).
Id. (emphasis added). The word -Lark" was not redacted
from the last-quoted sentence as it was elsewhere.
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Thus, while Dr. Norman's memorandum may have been
intended as warning to Ligge=t's advertising agency, Liggett
certainly did not caution the users of Lark tha~ its claim to
"lightness" had no scientific basis beyond theoretical removal
of relatively "heavy'.gas phase components based upon their
molecular weiohts or that the Lark filter did not remove an___~v of
the components of smoke (the particulate phase) suspected as
causing lung cance~ any better than conventionally-filtered
cigarettes.--
~n another of Dr. Norman's memoranda to Dr. Mold,
entitled "very Efficient Selective Filters for ~ndividua!
Smoke Components', he noted that the "two initial
questions to be answered in this connection" are (1)
"What kind of compounds ca___~n we selectively substantially
eliminate from smoke" and (2) "Which Df these Compounds
would be [sic] wan.__~ to filter out?" Memorandum from V.
Norman to J. D. Mold, December 8, 1975 (~5005 2946)
(emphasis in original). Tab 36. Attempting to answer
the secon~ Of ~hese questions, Dr. Norman applied a
commercial test:
The desirability to filter out a smoke
component selectively is largely predicated on
ne~atige medical connotations that the compound
might have. The marketability of this achievement
is of course also dependent on whether the compound
is recogni=ed as bein@ detrimental by the consuminq
public.
To illustrate this point, if we were able to
remove a large portion of carbon monoxide from
smoke, the smoking ~uDlic would Surely.;eco~nize
this as a substantial achievement. On the other
hand, if we were tO succeed in removin~ 99% of
trans-2. 3-pen~adi.ene t~e ~ublic probably could not
care less.
(Emphasis added).
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Possible I.ndustry Response - Charcoal Filtecs
Charcoal £ilters were marketed by Liggett
Reynolds (Tempo) and A~erican (Ta{eyton). Lalk and
a~e still on the market, and to the extent the plaintiffs
contend or demonstrate that charcoal fil~ers ace sa~e:, they
ace available to pla~nt~Es and have been since ~arks were
introduced in 1963. The companies did not market charcoal
cigarettes as "safer" because the Advertising Code and the FTC
prohibited health claims.
Charcoal filters reduced the quantities of certain
smoke constituents. Reynolds did not contend that reduction of
these ingredients was significant from a health standpoint.
Tempo, indeed, contained a health disclaimer. Thus, it is
impossible to assert that Tempo made a health claim, Consumecs
were given a choice to smoke or not to s~noke charcoal
cigarettes. Very few chose charcoal filters. So few in fact
that Reynolds stopped all adveltising for Tempo, and when its
sales dwindled, Reynolds ceased marketing Tempo. Lark and
Ta~eyton are still available to anyone who choses to smoke
charcoal filters.
(ii) Low Gas Ciqarette - Fact
Fact, Brown and Williamson's 1976 entry into the "low
gas" market, was developed as a cigarette that would
selectively filter carbon monoxide. It was the subject of
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discussion on the confidential portion of the ig81FTC Staff
Report./-La" The Report noted that, following Fact's initial
failure when introduced as a cigarette with the ability to
filter certain gases, B&W had the Post-Keyes-Gardner agency
devise a new campaign, A proposed strategy to distinguish Fact
from its competitors would be emphasis on "More complete health
p~otection through selective gas filtration." The agency
attributed Fact's initial failure to the lack of public
knowledge that gases might be harmful. It recognized that its
new strategy
would mean expanding the cigarette health
issue beyond tar to encompass gas, However,
this would require establishing "gas" as a
meaningful health hazard in cigarettes
because currently there is very low consumer
awareness or comprehension of the gas
problem . . However, if s~okers are
effectively educated regarding this problem,
the selective gas filtration promise may
still be powerful, particularly among the
very health c~nscious."2~-~,
found the implications of conceding the alleged ciliatoxic
and cardiovascular ill-effects of smoking to be
290.
291 .
1981 FTC Staff Report (TI 000463-466) (Kornegay Exh.
i00).
1981 FTC Staff Report at 2-22 (TI 000464) (quoting
Marketing Advertising Strategy Recommendations for the
Reintroduction of Fact Cigarettes, Apr~l 18, 1977).
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"appalling."2-~!" It chose instead to wait "[u]ntil the
problem of gas becomes public knowledge through government
investigation or media coverage./-L!~ Little is known about
Fact, but the plaintiffs could suggest that B&W deprived the
smoking public of information about a safer cigarette in order
to protect the allegedly more dangerous high CO cigarettes.
(iii) Palladium Cigarettes: The
Development of the "XA" Cigarette
By 1968, ADL's work for Liggett entered a new phase:
a dete:mined, and costly, search for a non-carcinogenic
cigarette. This project ultimately lasted more than twelve
years.!t/~-''~ Liggett abandoned it, eventually, but only after
it had come to a successful conclusion. Compared with the
efforts of i~s fellow tobacco companies to improve their
products, Ligqett's "safer" cigarette project was unique in two
respects. First, Liggett was the on_.~_~ member of the industry
ever to undertake a sustained, much Less successful,.effort ta
292.
29~.
294 .
1981 FTC Staff Report at 2-23 to 2-24 (TI 000465-66)
(quoting Memorandum from G.T. Reid to F.E- McKeown, March
22, 1978).
1981FTC Staff Report at 2-23 (TI 000465) (quoting Fact
1977 Repositioning and 1978 Marketing Plan Sugary).
The Lark filter, of course, had not been designed to
alleviate the products' allege4 carcinogeni~ properties.
but only to lessen cigarette smoke's tendency to act as a
cilia~ory-~nnibitor.
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develop such a product. Second, the very fact of Liggett's
project, when coupled with its cost (in excess of $15 million),
belies its executives" routine denials of the link between
cigarette smoking and cancer.
The Lig~ett/ADL "safer" cigarette project wore several
names during its lengthy course of development: °BIORES,"
"Project Tame,- "XA-5001," and, finally, simply "XA." The
project's guiding spirits were Drs. James Mold an~ Vello Norman
of Liggett and Dr. Charles J. Kensler of ADL. During most of
the project's history, Mold reported to Li~gett's Director of
Research, William w. Bates, Jr.
Not by happenstance, the Liggett/ADL project
coincided, almost exactly, with the National Institute of
Mealth's own "safe:" cigarette research projec: un~e~ the
direction of Dr. Gio B. Gori. Indeed, Bates and Kensler each
served, at one time or another, as members of the industry's
Tobacco Working Group assigned to the N~H's study./~-t" ~t is
clear that Liggett's effort to develop a "safe:" produc~
Benefited considerably ~rom the N:H's work, to which Liggett
was privy~ indeed, it re~resented Li~gett's attempt to gain a
295 .
Se___~e NCI Report No. 4 "Toward Less Mazardous Cigarettes
-The Fourth Set of Experimental Cigarettes," March, 1980,
a~ ix (Shook, Hardy & Bacon "Safer Cigarette Documents"
[not ~roduced to plaintiffs]).
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competitive advantage over others in the industry by being the
first to market a product demonstrably "safe" according to the
state of the art.
In an undated document, Liggett summarized the origins
of its research e~forts, beginning in the mid-1950s and
culminating in ~tS ~ cigarette project:
In 1953, Wynder and his group reported
that repeated apFlications of cigarette
smoke condensate could produce tumors on
mouse skin. Shortly after this article was
published, Liggett & Myers established a
contractual arrangement with Arthur D.
Little, Inc. The objectives of this joint
effort were to determine the walidity of
Wynder's results when the appropriate
smoking conditions were used, and to
determine the effect of different types of
tobacco on the response level. An extensive
program was also directed toward defining
the nature of the material responsible fol~
the tumorigenic effort.
Wynder's findings were confirmed and
all co~ercial cigarette t~pes produced
virtually identical ~use skin tumor
incidences. The tumorigenic initiating
effect was found to reside in a relatively
small smoke fraction containing the
polycy¢lic aromatic hydrocarbons.
In 1968, L&M initiated a tobacco
additive program designed to reduce or
eliminate the tumorigenic activity of
cigarette smoke. Once the reduction in
tumorigenicity was achieved, the next step
involved the development of ~ comme:cially
viable cigarette. The research efforts were
then directed toward the compilation of
evidence providing assurance that the
218
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tobacco treatment would not introduce any
new or increased hazard to the smokec.-LL~/
Ironically, the Liggett/ADL XA project was thus
designed to develop a product able to satisfy the very bioassay
test which Liggett and others in the industry have consistently
derided: mouse-painting, Liggett's $15-plus million project
was designed, in short, to develop a cigarette capable of
passing the test employed by Wynde[, et al., f~om the beginning
of the "controversy." Thus, Liggett implicitly endorsed the
validity of the assay-system which it and all of the o~her
tobacco companies had invested millions of dollars toward
disc:editing in the scientific and public minds.
Documents in plaintiffs' possession, produced by
Ligqet~ and ADL, reveal the course of Liggett'S project in
consideraDle detail. In the end, Liggett and ADL, working
together, concluded t~a~ Liggett had developed an experimental
cigarette able tO pass ~he mo~se-pain~ing test. Late in the
project's course, one of Dr. Mold's assistants authored for him
a "Statement on What we Think that We have Accomplished on
Project XA-5001":
Briefly, as a result of 20 years effort
in cooperation with ADL, we have developed a
296.
Liggett'S summaries of the origins of research efforts,
undated (RC 6029339; ~5009 9~19; Mold De~o. Exh. 31).
Tab 37.
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297.
cigarette system which produces smoke of
reduced biological activity, The activity
referred to in this context re~ates skin of
the mouse. The animal test procedures used
conform to accepted practices by
investigators across the world in a number
of ~esearch laboratories and institutes and
are in accordance with protocols established
by the National Cancer Institute. These
entail collection of.smoke by cold-trap
condensation and application of whole smoke
condensate on the back of the mouse at 50 mg
per application, five days per week for 80
weeks.
. T~is year, for the second time,
we have seen one o~ our treated cigarettes
~ive 80% fewer animals with tumors than the
control tested alongside.
• . . Our experimental cigarette
consists of a blend of commercial tobaccos
treated with small amounts of two
additives. One of these is a normal
component of tobaccq, especially buKley
tobacco, and the other is used ex~ensively
to2urify auto,mobile exhaust. Our results
indicate that when these two additives are
used in combination the overall effect is
greater than can he achieved with either one
independently,~J-zl"
Memorandum, "Statement on What We Think that We have
Accomplished on Project XA-5001," from A.G. Kallianos to
$.D. Mold, July 28, 1977 (RC 60~0238, 65009 9746; Mold
Depo. Exh. 52) (emphasis added). TaD 38. This
memorandum includes a particularly self-congratulatory
(self-serving?) obser.ation: "Zn emphasis on current
progress on this project, one should not lose sight of
the fact that it is in very large part dependent on afa:
sighted management that has supported continuous research
in this field for more t~an twenty years, at varying
levels of manpower."
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The "two additives" to which this memorandum ~eferred
were palladium (in one or another form) and nitrate. According
to the materials produced by Liggett and ADL, the two
substances, acting in tandem, dramatically reduced or
eliminated the "biological activity" of test cigarettes in the
mouse-painting studies.
[n addition to the mouse-painting studies which it
car:led out using XA condensate, Liggett - at Dr. Wynder's
suqgestion - also performed long-term inhalation studies - all
successful - to verify that the addition of palladium to the
product did not adversely affect the test ~nimal~.I-L~"
Beginning in 1975, Liggett applied for, and in time
was granted, a series of U.S. and foreign patents for its XA
process.~'', Even then, it was 'apparent to Liggett that
something was amiss; Dr. Mold was informed by Liggett's patent
attorney, Hendershot, that an examiner in the patent o~fice had
advised him that "Dr. Gori had been to the patent office trying
to raise questions as to why our patent on this perticuia~
298 .
299 .
MOld Depo. at
E.g.: Liggett's U.S. and foreign patents marked as Mold
Depo. Exh. I, October 25, 1977; Exh. 4, August 12, 1980;
and Ex~. 6, February 3, 1981 (RC 6028406:65009 8800: RC
6028419; 65009 88!7; RC 6022431; 65009 8829). Tab 39.
Sere Mold Depo. at 257-63.
221
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development should be issued, which I thought rather
strange.-~Q°z
Liggett prepared to launch the product in the
marketplace, hiring an advertising agency and a public
relations firm for that purpose./-~-~" According to Dr. Mold,
The advertising people came up with a
number of proposed, just £entative
advertising copy. . One I remembe:
vividly was a shee~ wi~h a bunch of mice,
some of them with tumors and some without on
their backs, pictures of little mice.
Needless to say, that wasn't accepted,
but there were a number of proposals
.... ~n another case, and probably as we
got down the line toward as more refined
kin4 of advertising copy, it was the kind of
thing where you would see a page full of
small print in which you start ou~ with a
disclaimer, and you end up with a
300.
Mold Depo. at 358. Se._~e MoI4 Diary, Mold Depo. Exh.
for Sanuary 9, 1978 (65009 ~92). Tab 40. In the diary
Dr. Mol~ no~ed, "a tobacco industry a~to=ney has
approached the pa~ent examiner" suggesting a problem with
the use of Palladium. The carry for February 7, 1978
identifies the "industry attorney" as a "Brown
Williamson patent examiner.').
Mold Depo. at 189.
Mold Depo. at 232 (emphasis added). See also,
Advertisement Proposal by Drl Mold, "Chemtech', May, 1978:
Nonsmokers are constantly amazed by the number o~
patents that this nuisance/vice generates. Here is
one -- get this -- for a palladium-plated tobacco
composition .... In order to suppress the
appearance of polycyclic aromatic hydrocarbons --
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Dr. Mold explained that Liggett believed that it faced
an obstacle more foImidable than devi~iag advertising copy:
the Federal Trade Commission. The problem was "how one might
generate some interest in a cigarette like this without running
afoul of the Federal Trade Commission's rule that you can't
advertise health advantages."~I
In an effort to deal with that concern, Liggett and
its advisors did some high-level lobbying: On November 29,
1977, Dr. Mold and other Liggett representatives me~ at the
White House with Charles O'Keefe, assistant to Peter Bourne,
the President's health advisor./-~iz The purpose of this
302.
Footnote Continued From Previous Page
prime carcinogen candidates -- palladium salts and a
nitrate of another metal . . . are added to the
tobacco leaf. These are applied in almost
homeopathic quantities . . . and seem to function
very effectively. The advertising surroundinq the
introduction of such a material should be ~l~ite
something,.
303.
304 .
(55009 8890: Mold Depo. Exh. 22) (emphasis added). Tab
41.
Mold Depo. at 231. In a 1975 memorandum, Dr. Mold
described a meeting with ADL concerning the XA project
and wrote that "[i]n terms of the endorsement of this
type of product, it was suggested that ADL might publish
pertinent biological work and could perhaps organize a
s~mposium with invited guests such as Wynder~ etc. for
the purpose of p~D.~icity." Memorandum from J. Mold to
File, April i0, 1975 (production numbers illegible; Bates
Depo. Exh. 29) (emphasis added). Tab 42.
Mold Depo. at 237, 285; Mold Depo. Ezh. 55. Tab 43.
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explain our pcoblem Of marketing such a
cigarette as we had developed without being
able to make any statements and advertising,
that we had achieved some health benefits,
because of the Federal Trade Commission's
position on this type of thing.;-a~
Dr. Mold elaborated that:
We had hoped that we might get some
influence from the White House to pe:haps
have the Federal Trade Commission listen to
out case a little mote with the idea that
they might bend their rules a little bit or
something of this sort, in other words, to
get some help from the White House to give
us mo~e leeway in advertising such a product
with the Federal Trade Commission.'~
Upon being asked "Did Mr. O'Keefe or Mr. Bourne take
any action, to your knowledge, in connection with your effort
to gee the FTC to assist in this?" Dr. Mold testified that:
To ~ knowledge, the only effort that Mr.
O'Keefe made was to contact the Tobacco
Institute and tell them that we had come
ov,~r there.
Asked "Was that a surprise to you that he had done that?', Dr,
Mold testified:
No. Well, yes and no. I mean, ma_~nv
thinqs like that had happened~..but I ouess I
was a little surprised that they had
305. Mold Depo. at 286.
306. ~_~.
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connections that close to the White
House.~L~/
In January, 1979 Dr. Mcld prepared a d~aft
presentation to Liggett's board of directors in which he
sumznarized the history and results of the Ligqett/ADL project:
In 1953, Wynder, Graham and Croninger
reported that ciga{ette smoke condensate was
capable of producing tumors when applied
repetitively to living tissue, namely the
skin of mice. This findin~ has since been
confirmed bv numerous investiqators. This
type of evidence was coupled with suagestiv~
evidence from eDidemioiogic .~tudies to
involve cigarette smoke in the incidence of
luna cancer.
Liggett & Myers Tobacco Co, ~m~,ediately
began work with A. D. Little as a
contractual partner to determine the
validity of the bioloqical results and when
this had been established to attempt to find
the chemical nature of the components
responsible and then to tr~ to eliminate
these materials from smoke, OUE rationale
was that it would be desirable to eliminate
any such material whether there was a valid
relationship or not between th~s bioloqical
result and human lung cancezt simply because
whether we believed it or not, the fact was
bein~ used to indict cigarettes.
Our endeavors in this area have be~n
highly successful. We have demonstrated
that a g=oup of compounds called polycyclic
307.
Mold Depo. at 287 (emphasis a~ded). Se.__~e Mold Diary,
January 5, 1978 (65009 8392; Mold Depo. Exh. 15). Tab
44. Dr. Mold wrote, "Greet advises me that Kornegay has
become aware of our trip to see O'Keefe at the White
House and wonders for wha: purpose. Joe told him re:
~atents, etc."
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308 •
aromatic hydrocarbons are pcincipally
responsible fo~ the mouse Skin tumors. This
group of compounds consisted of hundreds of
different materials, each present in
relatively small amounts, totalling less
than 0.16% of the smoke weight. BenzpyIene,
a ~o~ent carcinogen of th~S class represents
only abou~ 1/~000 of this fraction.
After evaluating several hundred
materials as additives to tobacco in an
attempt to decrease the yield of chase
polycyclic hydrocarbons, we found that we
could bes~ accomplish this by addition of
small amounts of a palladium metal
catalys:. Utilization of blends high in
Burley tobacco, or more conventional blends
which were supplemented with nitrate salts
equivalent to those present in the Burley,
gave further reductions in the level of the
PCAH fraction.
The results for several mouse skin
painting experiments are summari=ed on this
chart. At levels of ~50~pm ~alladium
catalyst and 0.75% nitrate-n~tro~en,
reduction in tumorigenicity of 95% and iq
ca~cino~enicity of I00~ ~ave been achieved
relative to smoke from untreated control
cigarettes. These tests were carried out at
te/~ levels of 250 m~m/week for 80 weeks.
When the level was ~ropp~ to 125 mgm/week
in accord with the m~st recent tests done at
the National Cancer Institute,
tU~ors, benign or malignant, were observed
for treated cigarettes while the controls
averaged 22.4% mice with total tumors and
2.1% mice with carcinomas.
This is, obviously, a reference to the NIH "safer
cigarette" pro~ect under the direction of Dr. Gio Gori,
with which Liggett's Dr. Bates and A. D. Little were
intimately involved. See also, Memorandum, "Correction
of Data for ADL Mouse Skin Painting Experiment RepOrted
August 26, 1975." from J.D. Mold to J.B. Ross. October
23, 1978 (RC 601~iI0:65005 2471) (adherence to NCI
criteria). Tab 45.
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Manufacturing details for production of
these cigarettes have been defined and over
a million cigarettes have been [made?] under
p~oduction conditions. Five alternative
cigarette candidates are presently
available. Their flavor characteristics are
considered bY our in-house professionals to
~% of ~arketable quali£y.
While Liggett's current President, K. v. Dey,
testified that the Liggett/ADL project, in which Liggett
(a financially crippled company) invested more than 15
million, had no goal beyond producing a test cigarette
less harmful to the skin of mice,'Iz-zz Dr. Mold, no
longer in Liggett's employ, was more damaging. Dr. Mold
testified as follows:
Was it your belief, sir that the
cigarette containing the palladium
309.
3!0.
Attachment to letter from J. H. Greet to A. D. Little,
Inc., January 9, 1979 (RC 603007~; PrOvost Dept. Exh. 18)
(emphasis added). Tab 46.
NOT,~E: In the meeting of defense counsel held for the
purpose of exposing their respective highly-sensitive
documents/discoveries, counsel for Liggett is reported to
have stated that Liggett decided not to market its
palladium cigarette because of the product's unpleasant,
metallic taste. None of the documents which the
Corporate Activity Team has reviewed support that
explanation, and the final sentence of the quoted Mold
draft report squarely contradicts this explanation.
"Q. It had nothing to do with the health and welfare of
human beings, is that correct? A. That's correct." Dey
Depo. at 220.
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additive would be potentially safer to
cigarette smokers that [si___qc.. read
"than'] regula~ cigarettes?
As we have. I think, gone over before,
no one can say with perfect assurance
that the results you obtain in animal
testing will be translatable to humans.
However. the fact was that we had
reduced the level of materials which
caused cancer in various animals, in
various locations, we had shown by
testing on animals that the
carcinogenic effect was reduced, if not
zero, very close to zero.
In addition to that, the product that
we had developed was designed with a
lower tar and lower gas phrase [sic]
constituent, so we were, in effect,
lowering the Carbon monoxide. We were
lowering the ciliatoxicity and
cytotoxicity and some of the other
materials, some of the compounds, that
and been pointed to as being
potentially harmful to a human being.
So we had every right to believe that
this could be translatable to humans,
but we had,no way of proving it until
it was actually tested in humans. The
allowed to be marketed.
I understand all that, sir, but ; want
to find out what Dr. Mold's opinion was
not whether you were absolutely
certain, one hundred percent sure. but
was it your opinion that this cigarette
with the palladium additive would
potentially be beneficial to cigarette
smokers?
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A. The simple answer is yes, but I think
in order to understand the simple
answer, you have to do it in the
framework of how do we develop drugs
and food additives, et cetera. It's
based on animal studies.
If the animal studles give positive
resultsr we can only assume that that
will be translatab|e until we find out
different. This was the same case here.
All of the animal studies indicated it
would be an improvement, so we must
assume it will be an improvement until
we find out different.~=-~
Of the various Industry scientists who have testified
thus far in these cases, only Dr. Mold was, at the time of his
testimony, no longer employed by or subject to the control, of
one of the defendant companies. The jury can consider, and the
plaintiffs may argue, this lack of affiliation in judging Dr.
Mold's lack of bias./-L~I So far he is the only witness to
depart from the Industry's party-lige. Thus, immediately
following the quoted portion of his deposition, D=. Mold
offered the following highly relevant testimony:
Did anyone at Liggett & Myers ever
receive any information which suggested
Mold Depo. at 362-64 (emphasis added).
Pattern jury instructions provide: "In weighing the
testimony of a witness you should consider his
relationship to the Plaintiff or the Defendant." Se.~e
~L:g-r Pattern Jury Instructions~ Civil Cases, U.5. Fifth
CirCuit District Judges Association 1983 Edition.
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that the results of Dr. Wynder and the
results of Arthur D. Little regarding
the mouse painting studies were
incorrect?
, The mouse skin painting
.experiments more or less confirmed the
epidemiologic studies. I mean, they in
themselves weren't standing alone but
were confirmatory of studies that had
already taken place in humans, if you
will, with the conventional cigarettes,
so they confirmed the fact that there
was a relationship, a contributory
effect of ciaarette smoke on cancer in
humans.
When did this confirmation occur, sir?
I would think as soon as--it was
indicated as soon as Wynder's results
in, I thought it was, igL~, but
required confirmation, and that took
several more years for other people to
repeat the work.
Doctor, is there any reason why you
never published yourself the results of
youc research over the 25 years that
you were with Liggett & Myers?
It's generally not allowed when you're
working for industry. What you produce
is their property. In fact, everything
that I generated in the way of
paperwork outside of my personal diary
was left with Liggett when I left their
employ.
I'm sure if I attempted to publish
something, the first thing, I would
find myself in court saying that I wa~
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usurping the rights of the industry, of
the company.'''~"
In other words, they buy your research,
the product of your research, when
you're an emplqyee.
In fact, Dr. Mold had concluded, even before issuance
of the 1964 Surgeon General's Report, that cigarette smoking
played a causal role in the development of lung cancer in
humans. Dr. Mold did not inform Liggett management of his
conclusion:
Ao
Did you express that opinion to
management?
No, I ha~ no intention Of doing that.
What is that. sir?
I doubt if it would have received with
great ela=ion. The position of
management throughout this was that
there must be--they don't believe in
epidemiology, for example, and mouse
painting doesn't prove ~nything.
Well, as you put it, it sounds strange,
but on the other hand, we were doing
this work both from the standpoint of
~inding out what the problem was, and
if there was a problem, how to c~rrect
it.
In other words, I didn't question but
what the comDan¥,,,.reco~nized there was a
problem, and I was pleased that the
313. Mold. Depo. at 365-66 (emphasis added).
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company was Supporting work in the area
to find out more about the problem and
how to correct it.
• . IT]he fact of the matter is that
al{ of this time the management and
industry were making statements of one
kind or another and saying, "Thi's
~oesn't mean anything." I mean, I
read. I listen to what's going on.
I understood that the management didn't
want to believe this, professed not to
believe it. Who am I to go and say,
"You are all wrong'?
I was in a better position to gursue
the problem and try to solve the
James Mold resigned from his position with Liggett,
afte~ being passed over as head of the research department in
favo~ of his colleague, Robert Kersey (whose testimony in this
case faithfully adhered ~o t~e ~n~ustry's party-line) and after
suffering a second heart attack (followed by heart bypass
surgery) ~n the wake of Liggett's decision to suppress his and
his colleagues' invention.
L~ggett decided, at the highest corporate level, no.__~
to market, the ]CA cigarette. According to Dr. Mold, it was
Liggett's lawy_ers who inflicted t~e fatal blow.
314. Id. at 78-8i (emphasis added).
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From the inception of Liggett's XA project, the
company required one of its lawye:s to be present at any and
all meetings where the project was discussed.I~-!" Indeed,
according to Dr. Mold, in all the company's research efforts
touching upon tobacco and health issues, "the ultimate decision
was always the legal department, Joe Greet ....
.s,_t~_t/ It
wa~ Ligget~'s policy that "all the information that we were
obtaining in the laboratory was to be considered attorney
privilege.-~''"
Dr. Mold offered two explanations concerning Liggett's
decision, as he understood it, not to market an XA cigarette;
while these two reasons are different, they a~e equally
damning./-u~,
315. Mold Depo. at __.
316. Mold Depo. at 166.
317, I_~d. at 169.
NOT____~K: In his examination of Dr. Mold, Marc Edell sough:
to portray Liggett's conduct with respect to the
technology as demonstrating a lamentable failure to
disclose the technology to the public and scientific
community. In his cross-examination of Mold, Liggett's
counsel took pains to demonstrate that Liggett had made
public its claimed break-through. Edell's "failure to
disclose" hypothesis is a failed litigation strategy,
given Liggett's voluntary disclosure of the
"discovery'. If we encounter the Liggett s~ory in the
cases in the future, it will likely be in a "refusal to
admit past guilt" context.
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First. Liggett decided not to market the XA cigarette
in the United States, but rathe~ to attempt "to license
overseas with the hope that maybe there would be a demand
created to market it in the United States.- ~/-Lz" Indeed, Dr.
Mold and others from Liggett made several trips to Europe
attempting to interest European tobacco companies in the
product./-L/~ Dr. Mold testified that part of the reason
Liggett decided not to market XA in the United States was lea:
of having lawsuits brought against the company.~ '" Marc
Edell cha:acterized the responses of Dr. Mold as follows:
It would appear to me that, based upon
the redactions and based upon some of these
directions, t~a~ all we're trying to ~o here
is trying to h~de what actually occurred,
and that the real reason that this product
was never marketed was because Liggett
Myers feared that they woul~ end up havin~
lawsuits a~ainst them because it woul~ be
some type of a~lmission that there was
somethin~ haza=dous in the cigarettes tha~
they were selling for years and that they
knew about it.
319 .
320.
321.
Mold Depo. at 119-20.
I__~. at 120-21.
I__~d. at 16a, 176. In colloquy, Marc Edell characterized
this as a perpetuation of "fraud on a consumer or the
public." I_J_d. at 177.
322. Mold Depo. at 172.
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Edell's comments are a fair leading of D~. Mold's
testimony. Dr. Mold later testified:
You have to recognize that if this
product were to catch on, it would have
ramifications in term~ of the products
that were currently in the
marketplace. So they sort of wanted to
bring it out in a place [overseas]
where it wouldn't have that much
adverse influence, if there was to be
one, on the other product.
By "adverse influence on the other
product," you mean that people would
stop smoking the othe~ product and
smoke this product?
Correct, right,z-uz"
Second, Liggett fe!Z pressure from its competitors nct
to market the product. 5iggett's Fresident, K. V. Dey,
informed Dr. Mold and others that D~y "had been advised by
someone from Phili@ Morris that if we tried to market this in
the United States, they would do everythin@ ~n their @ower to
prevent .it."J-u~ Such pressure was only to be expected:
[O]ne would assume that this would be
~h~ case under the circumstance, because it
would have been very threatening to another
company .... T~ey would have no way of
producing, as far as we were aware, any
323. Mold Depo. at 313-14.
32~. l~d. at 192-93 (e~phasis added).
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product that could compete in the same
areas.~"
It remains murky just what real or feared leverage PM
could exert on Liggett in this context, we do know from Mold's
testimony that, during the period of time in question, Liggett
was in the process of selling its overseas operations to PM and
that, according to Mold, it planned to exclude its most
valuable asset (the XA technology) from the deal and re~ain it
as a "corporate asset" of its parent company.
It is possible that the other tobacco companies were
threatening to prevent Liggett from effectively marketing its
palladium cigarette. Under FTC guidelines, the industry was
prohibited f:om making health claims. Therefore, Liggett would
be subject to challenge if it implied its palladium cigarette
was "safer'. Further investigation of the reasons for Sailing
to market the palladium cigarette is needed.
As Mold's story now stands, howevez, Liggett's
suppression of the XA -- with PM's alleged connivance -- is
very problematic. Liggett, in short, developed a product which
its researchers expected to be safer to smokers, cancelled its
plan~ to market the product because of fear of litigation and
pressure exerted by its competitors, and used its paten~ to
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deprive others of its invention. That Liggett was well aware
Of this is clear from what appear to be Dr. Mold's notes of a
meeting held to discuss "problems" - "legal':
Any domestic activity will increase
risk of cancer litigation in
[illegible]. U.S. Manu[illegible] for
export will be less risky
Risk assessment 10-20 years after
introduction
Conspiracy of L&M to withhold ~atent
Gov't concern with exclusive license to
one manufact[i!legiDle]~'-z>-'t
In addition, Ligget:'s General Counsel, Mr.
denied Dr. Mold permission to publish the results of his XA
research and to deliver a speech concerning his work to a
gathering o~ industry scientists because to do so "would De
admission against interest for Liggett."/x-l~
326 .
327.
Handwritten document, "Discussion', undated (RC 6029384)
(emphasis added). Tab 47.
Mold Depo. Ezh. 241 (emphasis added). In a brief filed
in Cipollone, plaintiffs stated:
[l]t is the plaintiff's position that the
reason this product was never marketed was because
it would present numerous problems to the company
including an indirect admission that its other
cigarettes and those of its competitors posed a
greater health hazard than those they had previously
admitted. This type of activity is consistent with
the plaintiff's allegation that the defendant
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The public, however, did learn of the XA cigarette,
but not in a context appreciated by the company. First, ADL
issued a press release on October 7, 1978 headed
CATALYST REDUCES CARCINOGENICI~/ OF CIGARETTE SMOKE CONDENSATE
ON MOUSE SKIN."12-~ Liggett's name appeared nowhere in the
ADL press release; over Dr. Mold's objections, Liggett had
re~used to permit any reference to it.
A story headlined "N.C. Company ist to Admit Tobacco
Link to Rat Cancers" appeared in the Charlotte, N.C.
Observer.;-h!~ According to the story:
~iqgett & ~yers . apDaren;Iy has
become the first cic~ette maker to
acknowledge toOacco produces ~ancer in
laboratory animals.
327.
328.
329.
330.
Footnote Continued From Previous Page
supp:essed pertinent medical information and
continued to mis~ead the public as ~o the potential
health hazards associated with its products.
C~pollone v. Liggett, et al.0 exhibit to Plaintiffs'
brief in response tO Liggett's motion for protective
order, May 23, 1985 (emphasis added).
Arthur D. Little Press Release, "Palladium CataIys:
Reduces Carcino~enicity of Cigarette Smoke Condensate On
Mouse Skin," October 7, 1978 (65009 8870); Mold De~o.
Exh. 12.) Tab 48.
Mold Depo. at __.
Charlotte, N.C. Observor, "N.C. Company ist To Admit
Tobacco Link To Ra~ Canoe:s" (RC 6024572; Mold Depo. Exh.
13). TaD 49.
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release:
331.
The acknowledgement -- in a paten~
application for a possibly safer cigarette
-- was the first public admission by the
industry, of a link between tobacco and
cancers, =eseatchers told The Observer's
Washington Bureau.
Dan Prgvost. a spokesman for the
Durham-based Liggett & Myers, said he did
not know if his company or the industry ever
has acknowledged the tobacco-cance~
relationship in laboratory animals.
But even if the industry had conceded
the point with regard to animals, Provost
said, such exoeriments prove nothinc about
possible effects of smoking on humans. The
indus:ry has consistentlZ maintained a link
has not been established.
Speaking for Liggett & Myers, Provost
said, "Even if you could produce cancers on
the skin of m~ce. condensate is the wrono
substance on the wrong tissue, on the wrong
species in the wron~ amounts."
Selwin Waingrow. a public health
researcher with the government's Office of
Smoking and Health, noted, howeve=, the
patent c~aim b~ Liggett & ,Myers used the-
mouse-sk:n experiments.
"They can't have it both ways," he
said. "They can't say experiments on mice
ate not relevant and at the same time use
such experiments to suppor~ their (patent)
claim,o'~
Evidently alarmed, Liggett immediately issued a press
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• " • SPECIAL EDIT/ON " • •
LIGGETT RESPONDS TO PRESS REPORT ON NEW
TOBACCO RESEARCH
AS it was reported in the press today,
Liggett & Myers Tobacco Company has received
a U.S. patent covering the development of a
catalytic process which when applied to
tobacco reduces the biological activity of
smoke condensate on the back of mice in
laboratory experiments. The rep,or~ gave the
misleading im=ression that Li@qett & Myers,
in its otent, made the admission of a link
between smoklnq and cance~.
L~iggett has made no such admission; the
fact is that for more than two decades
scientific researchers have produced tumors
on mouse skin by the application of enormous
dosages of smoke condensate. Neither the
industry nor Liggett has denied these
results. Liggett and the cigarette industry
continue to deny, as they have consistently,
that any conclusion can be drawn relating
such test results on mice in laDoratories to
cancer in human beings. It has never been
established that smoking is a cause o[ human
cancer./.A-L~
In November 27, 1978 edition of Forbes magazine, there
a~peared an article entitled "The palladium perplex"
(illustrated with a large photograph of a mouse). This piece
noted that Liggett had "recently patented wha~ appears to be an
important laboratory breakthrough, a palladium catalyst that
332 •
Press Release, *Liggett Responds To Press Release Report
On New Tobacco Research," September 26, 197S (RC ~024574;
65009 8877: Mold Depo. Kxn. 17) (emphasis added). Tab
50.
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significantly reduces the incidence of cigarette smoke-induced
skin tumors in mice."
Instead of jumping for joy, however, the
tobacco company prefers to talk in terms Of
problems lather than potentia],
A successful transition of the
palladium catalyst from the lab to the
marketplace could, of course, make ~or a
dramatic turnaround in Liggett's cigarette
fortunes.
"It's a breakthrough." Kinsley Van R.
bey Jr., President of the Liggett & Myers
tobacco division, says of the new catalyst.
But then he cautiously ticks off the series
of obstacles tha~ stands between getting
palladium, an element of the platinum group
out Of the lab and into a cigarette that can
be test-marketed.
333 •
• The most difficult ~rob~em of all, ~e
says, would be to promote palladium in a way
that would not raise regulatory hackles.
Would the Federal Trade Commission let stand
the implication that an agent which doesn't
cause cancer in mice would also prove less
than harmful to humans? And what about the
tobacco industry's lon~-held contention that
one cannot extrapolate from laboratory miqe
and the smoke machines to the human
condition?~-m~
R. Phalon, Forbes, "The Palladium Perplex," November 27,
1978 (RC 6014064; 55009 8886; Mold De~ Exh, 19)
(emphasis added) (portions of text illegible in exhibit,
restored from NEX:S). Tab 5!.
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The Liggett palladium cigarette sto~y is bad on its
face for two reasons, both of which were seized upon by
plaintiffs during the depositions. First, it shows that,
despite the industry position that the results of animal
experiments are not extcapolable to humans, one tobacco company
appeared to accept Wynder's premise and spent $15 million in
responding to it. As Marc Edell snidely nosed, this was not
done to spare the backs of laboratory rats. Second, it
suggests that "safer cigarette" technology has been available
and in the tobacco industry's patented possession for the l~st
30 years and, still, no safer cigarette~
Possible Industry Response - Palladium Cigarettes
With respect to the "safer" ciga[ette question, there
is eviden¢~ that the industry fully and helpfully assisted the
NIH's effort under the direction o~ Dr. Gori to develop such a
product. While no company has marketed a ciga=ette expressly
represented to be "safe" -- or, as the Liggett story shows,
possibly could have sold such a product as such -- the fact
remains that each of the major companies has developed and sold
cigarettes intended to meet or approach the smoke-constituent
limits described by Gori as "safe." In gene=al, too, the
typical U.S. cigarette sold today is markedly less biologically
active tMan its 1954 counterpart.
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The Liggett XA debacle remains perplexing. One
possible line of defense is apparent. SpecifiCally, Liggett's
)CA filter was designed to selectively reduce PAHs, including
PAP. Even during the infancy of XA research, however, PAP had
been dismissed as being of majo~ imppEtance in the etiology of
cancer. Thus, from 1955 forward, Dr. Wynel and his colleagues
repeatedly announced that the BAP concentration in cigarette
tar -is insufficient to account for the observed carcinogenic
activity to mouse epidermis." Indeed, at levels approaching
human exposure ~h[ough inhalation, Drs. Wynde~ and Wright found
that such concentration of BAF "in acetone will not produce any
tumors on the experimental mouse oc rabbit groups." The
principal failing of this line of defense is that it doesn't
explain Liggett"s fixation on SAP for many years thereafter. A
related line of defense (which folds nicely into other defense
themes) is that skin-painting is not a fair proxy for the human
smoking experience. Accordingly, basing health claims on the
basis of this bioassa~y system would be suspect.
A third line of defense is that the
"constituent-of-the-month" a~tack had shifted f~om PAH~ to
ni~rosa~ines. Because the XA utilized both palladium and
nitrates, it is conceivable that the XA had a higher
nitrosomine delivery than conventional cigarettes. Accordingly,
Liggett could have been jumping from the frying pan into
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the fire. We obviously do not kno~ what really happened, and
further investigation of this subject should be undertaken.
Liggett should be asked to provide a detailed, proposed
response for use in litigation.
We know (although plaintiffs do not at this point) of
Reynolds' aborted work with a palladium cigarette of its own.
Reynolds experimented with palladium as a filter component
(not, as with Liggett, as a toDacco additive), i.e_~.~, as a
filtration-medium rather than as a catalyst. Moreover,
Reynolds looked upon palladium as a means of selectively
removing carbon monoxide, no= polycyciic aromatic
hydrocarbons. One of the reasons that Reynolds did not pursue
the palladium filter was that its commercial use would deplete
the world's palladium supply within a year. According to
Mold,1-/~ however, supply would have ~een no problem, a
conclusion which the use o~ palladium as a catalyst is
automotive exhaust systems seems to confirm. The Liggett story
and the Reynolds story stand in contradiction to one anothe:.
This contradiction must be resolved.
As it stands, the XA story is damaging, and plaintiffs
are well-aware tha~ they have found a rare gem in Jim Mold.
The state Of the art palladium cigarette may De deemed
334. Mold Depo. at 315.
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available to all tobacco companies, Therefore, as a practical
matter, Reynolds may be calle~ upon to defend the Liggett
cigarette.
While there may be no avoiding the "corporate
misconduct'-type behavior by Liggett that seems to have
motivated both its development and abortion of the XA, the
soundness of the whole venture is questionable. Certainly,
there is something simplistic and shallow, even cynical, in an
attempt to develop, much less market and promote, a product
designed to pass the discredited "mouse-back" test. As Selwin
Waingrow observed: "They can't have it both ways ....
They
can't say experiments on mice are not relevant and at the same
time use such experiments to support their . . claim."
The XA project must be viewed in another context, as
well. At the time that Liggett was rushing its its product to
market the company was financially troubled owing to its
steadily-shrinking marke:-share, For any of the major tobacco
companies to market a miracle-product like the XA would have
risked doom to sales of all its existing brands. Liggett,
however, would have had nothing to lose, and, according to
Mold, knew that./-Li~ In that light, the XA begins to look
like a shoddy, last gamble rather than a bright hope
extinguished.
Mold Depo at' 19 .
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The proDlem which permeates all "safer" cigarettes
that are not blessed by outsiders (such as Carlton and Kent
were at different times) is that the FTC prohibits health
claims. If a company cannot promote a product's primary
benefit, it cannot inform consumers. The FTC barrier was
clearly one of the reasons Liggett did not market its palladium
cigarettes.~
Marketing a new cigarette is very expen5ive. Real was
promoted with a budget of $40 million dollars for the first six
months, and failed. Tempo also failed, in part, because
Reynolds could not promote the benefits of charcoal
Combined with less favorable smoking characteristics, i.e,___~,
lack of tas[e or bad taste, there is a strong, built-in
disincentive to attempt to place an allegedly safer cigarette
on the market. This response is not satisfactory, Dut it is
not as disastrous as the one provided by Dr. Mold. Further
investigation may provide a more satisfactory response. The
Government appears a bit hypocritical with respect to the
palladium cigaret:e. The Government was supposedly in favor of
a "less hazardous cigarette," yet the only action the White
33~. Mold Depo. at 189-90, 231, 284.
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House took when Liggett asked for help marketing the cigarette
was to rat" on Liggett by notifying its competitors.~
(iv) Lower Tar and Nicotine Cigarettes
The ~laintiffs have not directly asserted a contention
that the industry should have marketed lower tar and nicotine
cigarettes in the 1950"s, but it appears that this contention
is so closely related to the general "safer" cigarette
contentions that the plaintiffs may assert it./-L~
Plaintiffs may argue that the industry failed to market lower
tar and nicotine cigarettes because doing so would adversely
affect the better-selling high tar cigarettes, and/or be used
as an admission that high tar cigarettes were unsafe. This
perception would destroy the market for the better-selling high
tar cigarettes.
337 .
3~8 .
Se....~e Mold Depo. at 285-87. Liggett though the White House
might help with he FTC barrier to advertising the
palladium cigarette. I._~d. at 237.
But see Complaint ~I 8, Ebert v. American Tobacco Company,
(M.D.
247
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Possible Industry Response - Low Tar and Nicotine Cigarettes
The industry's efforts So lower tar and nicotine
deliveries is an impressive and important story. Although not
without modest risks, emphasis shoul~ be given to the dramatic
reductions of average tar and nicotine deliveries and the
technological innovations that were devised to accomplish those
results.
The largest risks appea~ to be (i) an implied
concession that high delivery cigarettes are unsafe or less
safe, and (ii) an implied concession ~hat the continued
manufacture of high delivery cigarettes was negligence, while
walking a fine line may De necessary, these risks can be
avoided. Thus. for example, the industry "open controversy"
position is that it has not been prowen whether or not
cigarettes cause disease. This accommodates the view that
cigarettes are ultimately proved unsafe, and i_~f causation is
based on a dose-response re:a~ionship, then the manufacture of
low delivery cigarettes is and was responsible conduct.
Moreover, the continued manufacture of high delivery cigarettes
is not irresponsible (and not negligent), because adequately
informed consumers are simply being given a choice. In other
words, just because GM manufacturers Sherman tanks, it is not
irresponsible for it to manufacture Nova cars.
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This line of argument, however, does require a
tempering of an industry position. Specifically, while not
conceding the point, industry witnesses should deemphasize the
statement that because no one has ever proven any cigarette
harmful, the industry did not, and had no obligation to,
attempt to manufacture a less harmful cigarette. Jury research
has indicated that jurors will disagree and perhaps even resent
the premise of this argument.
From an historical perspective, the adoption of
filters in the late 1940s and early 1950s was probably not
animated by a desire to Iowe~ deliveries. Advertising claims
to the cont:ary aside, ea~lie~ filtered cigarettes (e.~.,
winston) had deliveries equal to or in excess of their
unfiltered cousins. With increase~ publicity about health
consequences attributed to smoking and the attendant consumer
demand for lower delivery cigarettes, the industry began its
efforts to reduce tar and nicotine, This led to the first "car
derby- among cigarette companies. The tar derby me~ an
untimely demise, when the FTC prohibited the advertising of
and nicotine deliveries on the basis that they were unproved
and implied health claims.
The resulting respite resulted in the reduction of new
low delivery brands, and in the reduction of average deliveries
of existing brands which pla~eaued during this period. It did
249 -
6S15795!5
"(986[)
pu~ le~ la~oI )o (s~q~o pue
• (~u~oD~u pu~
• uew~ pue '(~uT~ooTu pue
~i3 aq~ Aq pa~TqTqo~8 u~q~ 'sO~6~
(~
(z
(-~
~ue~ aq~ 'eldmex~ ~o~ "uoT~e)s!~es ~amo~sn~ )o sm~a~ u%
o~ s~eadde uoT~e~%I3~ 's0961 XI~ea eq~ o~ ~o~8 'snq&
~3e~O ~n6od ~ s3^~ 'XeO "seuop
IeT~uapT)uoD
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Although the level of tar and nicotine declined
steadily and in the late 1960s, it declined rapidly when the
FTC reversed its prohibition. Dr. Gori said lower tar and
nicotine cigarettes were less hazardous which caused some
smokers to want to switch to low tar and nicotine cigarettes.
The industry ~esponded.
The industry cooperated with NCI's Tobacco Working
Group which sought to develop a less hazardous cigarette, but
this group was unable to do so before the Government terminated
its funding.
In any case, it served no purpose to lower tar and
nicotine if either I) no one would smoke the resulting product
or 2) t~e industry could not announce that the product was
lower in tar and nicotine because of governmental restrictions.
The industry record is not pezfect. Even if industry
did not lead, it quickly followed, consumer demand.
(v) Nicore~te Gum
The industry could have developed a safer method of
delivering of nicotine, such a Nicorette gum, The plaintiffs
have indicated they will seek information regarding Nicorette
251 -
65157951'7
~ones. Oay, ~eavis ~ Pogue ~caf~
from the United States Patent Office, Merrell bow, Inc., and
the FDA regarding Nico~ette and its efficacy studies./-~"
Possible Industry Response - Nicorette Gum
The industry should obtain the information plaintiffs
obtain. The discovery of the plaintiffs and plaintiffs'
experts should seek admissions that smoking has many benefits
in addition to nicotine delivery.
Second, a chronology of the development of Nicorette
needs to be constructed. Presumably, since Merrell Dow has a
paten~ on nicorette, the process is not totally obvious and was
the subject of a scientific discovery. Therefore, the
technology may not have been available ~ntil recently.
Thizd, to the extent Nicorette has been available and
plaintiffs knew of its availability and did not seek to use it,
plaintiffs strengthen defendants' personal responsibility
position: If plaintiffs wanted to quit, Nicorette gum provided
them with one method of doing so.
This issue needs fuzther investigation.
340. Plaintiffs' Answers to Contention Inter:ogatories in
Ci=cllone, May 28, 1986. TaD 4.
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C- Warning Defer=: Cigarette Manufacturers
Failed to Warn Prior to 1966 and Then Gave
An Inadeguate warning.
Plaintiffs' Contentions
In evaluating whether cigarettes are defective based
on a warning theory, the tobacco companies will be held to the
standard of experts in the field. Further for products (like
cigarettes) which impact on public health, the companies have
an affirmative duty to seek out information concerning the
hazards involved with use of the products. Where there is
significant medical evidence of a possible health hazard,
warning is requ{red without waiting for a definitive casual
connection to be established.
In strict liability warning cases, unlike negligence
cases, the tobacco companies bear the burden of proving that
the scientific and medical information was not reasonably
available or obtainable and that they, therefore, lacked actual
or constructive knowledge of the defect. T~e tobacco companies
bear this burden because they are experts, they are expected to
perform testing, and they are in a superior position to know
the scientific and medical evidence. Feldman v. Lede~le
Laboratories, Inc., 479 A.2d 374 (N.J. 1984).
While the defendant tobacco companies had ample notice
at least as early as the 1930s (Roffo) of the carcinogenic
properties of their products, and knew, or should have known,
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that the probable health consequences involved matters far more
serious (and deadly) than "throat irritation" and diminished
"wind~, none even spoke to the public concerning the mounting
evidence until compelled to do so in 1953-54 with the
revelations of the Wynder, Graham and Horn studies in the
popular press, demonstrating a clear association between
smoking and lung cancer.
It is undisputed, however, that, prior to 1966, the
tobacco companies provided n_.q warning to consumers of the
adverse health consequences of smoking which were known or
should have been known to the companies.--'''~ Indeed, the
tobacco companies refused to honor several specific suggestions
for the inclusion of warnings.
~upporting Test~,~ony and Documentation
Although information dating to the 1930s was
sufficient to put the tobacco companies on notice (and trigger
a duty to warn), evidence linking cigarette smoking and cancer
was unequivocably established during the period 1950-54. The
chronology o~ publication of the articles linking cigarettes ~0
lung cancer is as follows:''~
341 .
342.
E.g., Heimann Rogers Depo. II at 30-31.
Sources: Expert's Report on 5tare of the Art, Jeffrey E.
Harris, August I, 1985; Statement Concerning the Origin
and Purpose of the Tobacco Industry Research Committee
and Its Functions, January 25, 1954, Tab 66. Chronology
of Readers Dices~ Articles 19~2-1970, Tab 67.
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6~15795ZO
1950
1850
1852
1952
1953
1954
1954
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Wynde~ and Graham report in The Journal
of The American Medical Association,
tobacco smoking is possible etiologic
factor in lung cancer. E. Wynder and
E. Graham, The Journal of The American
Medical Assocition, "Tobacco Smoking As
A Possible Etiologic Factor in
Bronchiogenic Carcinoma" (vol. 143, no
4, May 27, 1950) (65009 1355; Spears
Exh. 2). Tan 63.
Doll and Hill report in British Medical
Journal smoking associated with lung
cancer (cited in Spears Exh. 3; 65009
1366). Tab 64.
Wynder and Graham report in Science
magazine that smoking is associated
with lung cancer.
Readers' Digest, December 1952, "Cancer
by the Carton."
Wynder, Graham and Croninger report in
Cancer Research skin-painting wzth
cigarette tat produced cancer.
Tim__._~e Nov~er 30, 1953
Lif__._~e December 21, 1953
Readers' Digest December 1953
Doll and Hill report in British Medical
Journal death from lung cancer among
doctors increases in relation to the
amount of tobacco smoked.
Wynder reports in Pennsylvania Medical
Journal that cigarette smoking was
associated with lung cancer, and that
lung cancer rare among nonsmokers. E.
Wynder, The Pennsylvania Medical
Journal, "Tobacco As A Cause Of Lung
Cancer" (vol. 57, Nove,tber 1954) (65009
1366; Spears Ex. 3). Tab 65.
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Although the methodology or some other aspect of these and
subsequent studies was attacked and criticized by the tobacco
industry as "flawed," industry R&D witnesses have readily
agreed that many of the major studies linking cigarette smoking
to lung cancer were credible studies by re~utable, honest and
distinguished scientists.
In addition to failing to warn in the face of the
mounting evidence, the industry also resisted a number of
warning proposals. Thus, the industry bad several documented
opportunities to adopt a voluntary warning label prior to the
enactment of the statutory warning label.
First, in July 1957, a bill was introduced in the
Senate which would have required a mandatory warning on
cigarette packs; that same month, a bill requiring the
discl~sure of tar and nicotine levels on cigarette packs was
introduced in the Mouse. The industry opposed both. In
apparent re~e=ence to this warning proposal, 5iggett's
Dr. Darkis' notes of a July 24, 1957 phone conversation reflect
"The tendency is to go slow and ~hey have given them no
encouragement at all on labeling the packages."/-a-~" While
the confusing use of pronouns obscures the indentity of the
"Notes on telephone call from Mr. MacManus, wednesday,
July 24, 1957, 8:10 a.m." (RC 6028614: Provost Dep. Exh.
27). TaD 4.
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actors, it nonetheless clearly appears that Liggett opposed the
proposal to warn its customers.
Second, in 1964 the Industry considered the
advisability of adopting a voluntary advertisirg code. In a
meeting among Zach'Thoms (Liggett's President), Lawrence Bruff
(Liggett), and John Mensonatt (J. Walter Thompson), Mr. Thoms
asked the J. Walter Thompson Agency to "do some exploratory
work" on such a code.'°'~ The proposed code included a
warning label, which was to have read:
-This product is intended for the use of adults
only. Excessive use may be injurious to health,
and in certain cases, even moderate use may be
inadvisable.'-u~2-'~
Mr. Bruff was unsure if this proposal was presented at a
meeting of the Board of Directors.'/~-~/ Mr. Ha~rington was
also unsure, but Delieves that it woul~ have Deen.
Third, following the January 1964 release of the
Report of the Advisory Co~m~ttee ~0 the Surgeon General,
industry representatives and their counsel met with
344 .
345.
346.
347 .
Bruff Depo. at 162-67.
Bruff Depo. Exh. 5; Harrington Depo. Exh. 9 (6500~
0411). Tab 410.
Bruff Depo. at 167.
Har[ington Depo. at 132.
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representatives of Hill & Knowlton ('H&K') to discuss the
manner in which to respond. The H&K account representative
recommended that the industry mail copies of the report to
every consumer (citizen?), or at least to generally
its availability from the Governmental Printing Office.
Available documents reflect that H&K proposed that the tobacco
industry place ads which announced the release of the Report,
stated that more research was needed and proposed the following
as the closing paragraph of the
The Tobacco Institute, Inc., takes the
position that smokers should be aware of the
existence of this report, and if they desire
to read it be advised how to obtain it. The
report entitled "$mokin@ and Health" is
Public Health Service Publication No. 1103
and is available for sale by the
Superintendent of Documents, U.$. Government
Printing Office, Washington, D.C. 20403 --
Price $I.25.~/
There have been suggestions that Imdustry executives were
enraged by the suggestion and that Hill and Knowl~on was
ultimately "fired" because of the suggestion that smake~s
should be awa=e of the existence of the report. [Note,
however, that Hill and Knowlton continued to be retained by
until 1968.] In any case, the tobacco industry did not place
the ads which means its position must have been that the
348. Letter from Richard W. barrow to Bo~.an Gray, January 14,
19~4 (1005038523). TaD 409.
- 25~-
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6. Carbon monoxide level disclosures
7. Additive disclosures
8. Local "Clean Indoor Air Acts"
In countries where no warning is requited, none is
included. Similarly, in countries where cigarette advertising
is permitted on the broadzast media, the companies advertise on
those media.
The issues of overseas activities, including the
positions of foreign subsidiaries on the primary smoking and
hea!=h issues as well as the marketing activities, are issues
which ~equire further investigation.
Beginning on January i, 1966, the companies included a
warning on all cigarette packages, but only because they were
requi~ed to do so by federal law. In the absence of
p~eempt~on, that warning was inadequate as a matter of law.
C_~f. Pay!ides v. Galveston Yacht Basin, Inc., 727 F.2d ~0,
338-39 (5tb Cir. 1984); Bore! v. Fibreboard Pa~er Products
Cor=____.~, 493 F.2d 1076, 1104-05 (~th Cir. 197~) (general warnings
to avoid breathing asbestos dust ~ecause inhalation "may De
harmful" did not adequately warn workers of the damage of
contracting asbestosis, mesothelioma and other asbestos-caused
canoe:s). Since then, the tobacco companies have consistently
resisted every effort to provide consumers additional
informat{on about the hazards Of smoking.
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As of October 12, ig85, the companies began the use of
rotating warnings, as required by 15 U.$.C. S 1333. This is
the first time, however, that warning of any specific disease
has ever been given by them. Moreover, to date the companies
have failed to warn that cigarette smoking is addictive. A
company which does not adequately warn of addiction is liable
for injuries or death of a person who becomes addicted to its
dangerous product, even if most users ~o not become addicted.
Crocker v. Winthrop Laboratories, 514 S.W.2d 429 (Tex. 1974)
Se__e Ga=ner, Cigarette Dependency and Civil Liability: A Modest
Proposal, 53 S. Cal. L. Rev. 1423 (1980).
Possible Industry Response
The s~ock Industry response to opposition to warnings
has been twofold: First the warnings are not necessary because
everyone is already aware of the alleged health risks. Second,
the warnings are not warranted ~ecause the allegations have not
been proven.
The Indust=y should not be defensive on these issues.
If it handles these issues correctly, they Can work in favor of
the Industry. Cigarettes are the most heavily regulated legal
product in existence. The restrictions on advertising are both
mandatory and voluntary. Each time the Government has imposed
regulation, it has done so after hearing everything there is to
hear and each time it has said the produc~ is legal, but the
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Industrz must sell it within Certain restrictions. The
Industry has always done so. If the Industry complies with all
these restrictions, it should be able to otherwise market its
product much the same way other products are marketed. The
tobacco companies are in business to sell a legal product. No
one is forced to buy or smoke cigarettes.
Overseas if there are less restrictions, the Industry
complies with them. With respect to the failure to warn
overseas, the following responses are possible, but the factual
basis for them must De established.
i) The foreign government may have established an
alternative method of warning through public
announcements, the schools, or otherwise.
Therefore warning on packages is unnecessary.
The customs an~ laws are different so each
situation must De evaluated individually.
Generalities are not appropriate.
Cigarette advertising on the electronic media overseas
where permitted is a more d/fficult problem. More facts are
necessary, but the rationale for the voluntary followed by
manda:ory ban on electronic media advertising in the U.S. was
that advertising on these media unavoidably reached children.
Advertising on the electronic media overseas is only permitted
in the Third Worl~. On the surface this may look as if the
tobacco companies are attempting to take advantage of
uninformed masses, but in fact the situation in the Third world
is much different than :ha: in the U.S. and western Europe
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~he~e electronic media advertising is prohibited. In the West,
radios and T~/s are ubiquitous. ~n the Third World, they are
rare. Therefore, the electronic media does not unavoidably
reach masses of children. $o even though the tobacco companies
do advertise on the electronic media in the Third World, they
still do not market to kidsq This response needs investigation,
The companies may take steps in the Third World
countries to avoid reachin~ child~e~, such as only adve~isin~
du:ing certain hours or on certain ~rograms. Each situation
requires individual analysis. The plaintiffs should not be
a!Io~ed to establish general propositions, uncontested,
The issues of o~erseas activities, including the
~ositions of foreign subsidiaries on the primary smokin~ and
heal~h issues as well as the marketing activities, are issues
which require further investigation.
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D. Marketin~ Defect: Overpromotion
Plaintiffs' use of the marketing and advertising issue
in the litigation may be expected to be threefold. First, as a
part of the general corporate "conspiracy/misconduct" case,
plaintiffs will seek to jultapose the public statements being
released to the public through advertising with the internal
state of awareness of the strength and validity of the
associations of smoking with various diseases. Thus, even
while the Arthur D. Little Co. was replicating, albeit with
diminished results, the Wynder mouse-painting experiments,
Liggett was advertising its L&M filter as "just What the
Doctor Ordered." While the former should have caused the
company disquiet about its product, the latter was arguably
designed to reassure the public about the safety of that
product. A time-line chart which reflects corporate awareness
and advertising themes would dramatically illustrate the
deceptive endeavor to reassure smokers.
Second, plaintiffs' will depict the tobacco companies
marketing efforts as irresponsible, arguing that they were
designed and implemented with the single-minded goal of
increasing the cigarette market. Advertising will be portrayed
as the leading factor in smoking initiation, with particular
emphases on youth and women, and in s~king continuance in the
face of g.rowing public knowledge of increased health risks.
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The twin themes of glamour and safety repeatedly appeared
during the period 1913 to 1964, with special emphasis on safety
during the debut of filter cigarettes (1953-1955) and the "tar
derby" (1958-1960). Throughout this period, endorsements Dy
emulataDle individuals, such as movie and television stars and
athletes, saturated the advertising media. That the Federal
Trade Com~nission found, and was upheld on appeal in having
found, many of these ads to have been deceptive and misleading
will be sought to be introduced. Plaintiffs may also produce
psychologists and econometricians to bolster their case.
When the death-knell of the use of celebrity
endorsements was sounded by the Cigarette Advertising Code, and
with the inclusion of a warning label on cigarette packs
later, in cigarette advertising, the industry's advertising
became more subtle, but the themes of ~lamour and safety
nonetheless persisted. Glamour was no longer personified in
identifiaDle movie stars or athletes, but in the anonymous
happy, healthy individuals depicted in the ads. Claims of
safety were also no longer overt, but implied in ads for
"safer" cigarettes, i.~., low tar, low gas, charcoal filter,
all-natural, and ultra-low tar cigarettes. The intent and
effect of both was the same: to derogate from the
statutorily-required warning label and reassure the smoker in
his decision to start and continue smoking. Stazed
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differently, plaintiffs will contend that the statutory
warnings, "even if adequate when examined in isolation, have
been diluted or negated by collateral efforts of the
manufacturers to promote their products in a positive light."
Schwartz, The Relevance of Overpromotion in Tobacco Products
Litigation, 1.4 T.P.L.R. at p. 4.41 (1986). See Cipollone v.
Liggett G~oup, Inc., 593 F. Supp. i146, 1148 (D.N.J. 1984),
rev'd, 789 F.2d 181 (3d Cir. 1986); Stevens v. Parke Davis &
Co., 507 P.2d 653, 661 (Cal. 1973). Although the
"overpromotion" theory has found currency in drug product
liability litigation, it evidently has not been more generally
applied. But of. Leichtamer v. American Motors Corp., 424 N.E.
2d 568, 578 (Ohio 1981) (jeep rollover case). Support for this
position will be found in the annual reports to Congress of the
Federal Trade Commission and, especially, in the 1981 FTC Staff
Report.
Although post-1966 "overpromction" is probably
preempted by Cipollone v. Liggett, Group, Inc., 789 F- 2d 181
(3d Cir. 1986), plaintiffs will continue to urge the doctrine
in at least three contexts. First, they will argue that
pre-1966 overpromotion negated adverse publicity and :eassured
the smoker. Second, they will contend that various post-1966
activities (such as Reynolds's Public Issues Campaign) are
outside of the reach of preemption. Finally, they have argued
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that post-1966 overpromotion bears on the reasonableness of
plaintiffs' conduct (as opposed to the unreasonableness of
defendants' conduct), and thus remains relevant to the issue of
comparative negligence.
If allowed, overpromotion evidence will be linked with
"addiction." Plaintiffs will argue that pro-smoking and "open
controversy" messages were intended to and did dwarf in number
and in imagery anti-smoking messages, thus reassuring cigarette
Smokers. Even in smokers who admit to awareness o~ health
claims, plaintiffs will urge the (amiliar cognitive dissonance
theory, arguing that the reassurance deprived smokers of
sufficient incentive to overcome their addiction.
Finally, plaintiffs may link the first two themes
described above in an e~ort to establish a claim for punitive
damages, i.e.._._~, "they did it then and they're still doing it
today." In response to the industry's portrayal of the
Advertising Code as an act of self-regulation, plaintiffs may
be expected to, first, demonstrate that the Code was initially
promulgated in ordeE to avoid greater governmental restraints
and, second, to allege that the Code is, in any event, a sieve,
by showing the jury copies of contemporary ads which are at
least at the fringe of permissible advertising under the Code.
For clarity of discussion, the companies advertising
practices may be divided into three distinct periods:
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i. 1913-1953:
2. 1953-1964:
3. 1964-present:
Building and Maintaining the Market
The Advertising Response to the
Health Scare
The Modern Era
I, 1913-1953: Building and Maintaining the Market
a. Plaintiffs' Contentions
During the period 1913-1953, cigarette consumption in
the United States boomed. Plaintiffs contend that this
increase in consumption was the direct and intended result of
the industry's marketing and advertising efforts. During this
perlod, there were few legal (or moral) restraints on cigarette
advertising or promotions. Even before print media advertising
became widespread, picture cards were included in each pack of
cigarettes. To induce the smoker to make additional purchases,
the cards would be put out in series, including pictures of
athletes, actresses, scantily-clad women, and of businessmen
who made the transition "from rags to riches,"'/-LKz
When print media ads became popular, particularly in
the 1930s and 19405, the twin themes of glamour and safety
became widely circulated. Virtually every major movie star and
professional athlete endorsed a cigarette brand. Everyone
350. R. Sobel, They Satisfy: The Cigarette in Ame=ican Life 36-39
(1978).
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smoked in the movies as well. These practices were
particularly aimed at youth, whose desire to emulate their film
or s~orts stars would lead them to take up smoking. As a part
o~ the objective o{ building the cigarette market generally,
the industry set out to create a market among women. Starting
with "Reach for a Lucky Instead of a Sweet" and continuing with
celebrity endorsements by glamourous actresses, the industry
created and foste:ed the social acceptaDility of smoking, a
practice previously thought "unladylike."
The industry employed other means as well in order to
induce Am~ericans to try that first cigarette. In addition to
the general practice of distributing free sample packs of
cigarettes, the industry provided f~ee cigarettes to soldiers
overseas during the two World Wars and Korea. Free cigarettes
were also distributed in Veterans Administration hospitals.
The hope of the industry was that those initiated to the haDit
in wartime would return home to enlarge the smoking market
during peacetime.~'I
For all the "glamour" of ciga:et=e smoking, product
research showed that smokers did experience certain unpleasant
351.
In fact, Camel cigarette sales increased by almost 30 billion
cigarettes from 1945 to 1946. These figures are publicly
available in the Maxwell Report and should be assumed to be in
the plaintiffs' possession.
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Confidential
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In proceedings culminating in 1950 with cease and desist orders
against all of the major tobacco companies, the FTC found
virtually all of these ads to have been false, misleading, and
deceptive.~z
Not content that the consumer would relyupon the word
of the tobacco companies concerning the safety of its own
products, the companies sought to employ the credibility of the
medical profession in support of its claims. Thus, Lucky
Strike advertised that -20,679 Physicians say 'Luckies are less
i:ritating,'" and Reynolds announced that "More Doctors Smoke
Camel Than Any Other Cigarette."*''~ Unlike the Lucky ad,
however, the Camel ad was able to reach and reassure an
unprecedented number of smokers through its use in the mass
media of radio and television. Plaintiffs have obtained some
of these scripts in the Barnes production; they will
undoubtedly attempt to read them to the jury. The "T-Zone" and
35.3 .
354 .
In the proceeding against Reynolds, the FTC also found that
many of the celebrity endorsements had been deceptive in that
some of the celebrities either did not smoke at all or did not
exclusively smoke Camels. Se__~e In re R. J. Reynolds Tobacco
Co___u, 46 F.T.C. 706 (1950), modified, 192 F.2d 535 (Yth Cir.
1951), order modified 48 F.T.C. 682 (1952).
From the Barnes production, plaintiffs nave learned the names
of two organizations involved in the "More Doctors" survey --
F~ct Finders Associates and Market Research Corporation of
America, both of New York City. Sere Interrogatory Responses,
Albrigh~ v. R.J. Reynolds Tobacco Co., (Tab 211).
651,57952'7
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"]O-day test" ads also appeared on radio and television;
plaintiffs have those sc=igts as well.
Throughout this period, advertising expenditures
increased annually; so did cigarette consumption. Plaintiffs
may be expected to produce an econometrician who will testify
that a cause and effect relationship exists between these
figures.1-!-~"
Supp@~t~ng Testimony and Documentation
There is virtually nothing in the discovery conducted
to date which supports the allegations noted above; the
principal support for these allegations is contained in
documents already in the public domain.,''/ Chief among
these are the ads themselves. When judged by contemporary
standards and evaluated in light of contemporary scientific
knowledge, the ads will likely seem unbelievable and
irresponsible to the average juror. We know from the ATLA and
TP5? presentations and from Joe Tye's ~ix~y Years of Deception
ad compilation that the plaintiffs have a large stock of old
ads.~d-S" Many old Camel ads and sc:ipts have also been
355.
Professor Kenneth Warner Of the University o~ Michigan so
testified before the Waxman Committee in September 1986.
But see note 34g, supra.
Indeed, Joe Tye has offered to provide portions of his
collection to plaintiffs' counsel, free-of-cha=ge, for
copying.
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produced in Barnes. With a single exception, however, the
personalities and documentation underlying the old ads have not
been located.~---z~
The single ezception concerns the Chesterfield "Nose,
Throat and Accessory Organs Not Adversely Affected by Smoking
Chesterfields" campaign. That campaign was the subject of an
FTC investigation which culminated in a 1958 cease and desis:
order entered against Liggett./-Lz~ The Liggett marketing
executive in charge of the campaign, Lawrence W. Bru~f, was
deposed in Ci~o!lone. The FTC decision reports, and Mr, Bruff
358.
359 .
Some, howeve:, have been identified. The Director of the
"Camel Cigarettes Medical Relations Division" was A. G.
('Grant') Clarke. Me also appears to have been the chief
tactician behind the defense at the FTC hearings. Dr. Colby
shared an office with him at the Esty Agency, but believes he
is dead. (Tr. 127-28), Grant Clarke is discussed in the
Punitive Damages section of this memorandum. A separate
*Grant Clarke" memorandum has been prepared. A. Grant Clarke
Memo, June 3, 1986. Tab 212.
As noted ~ at--, the responses to the Albriaht
interrogatories identified the agencies which conducted the .
survey which led to the "More Doctors" ads. The study which
led to the ad which claimed that Camels did not irritate the
throat was conducte~ pursuant to a ~4000.00 grant from RJ~
Dr. Noah Fabricant, an ear, nose, and t~roat specialist from
Chicago. (50240 2090). Tab 211. He also testifie~ at the
FTC hearings. (50117 1810 (sum, mary of testimony)). Tab
Finally, the claims that Camels were slower burning and
contained 28 percent less nicotine than other cigarettes were
based upon a study conducted for Reynolds by Louis Sherman of
New York Testin~ Laboratories, ~nc. Letter from Reynolds to
Adrien F. Busick, Septemd~er 8, 1942 ($024G 2443). Tab 213.
55 F.T.C. 354 (1958) (B:uff Depo. Exh. 7).
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concurs, that the ad reported the results of a survey of thirty
smokers con%missioned Dy the Arthur D. Little Co. on behalf of
Liggett in 1951-52. At the beginning of the test period, all
participants were examined by Dr. Walter J. E. CarroLl Of
Cambridge, who was also deposed, Thereafter, the participants
exclusively smoked Chesterfield cigarettes, which were provided
to them free of charge by ADL. Dr. Carroll re-examined each
smoker every two months for a six month period. At the
conclusion of the study, Dr. Carroll reported "that the ears,
nose, throat, and accessory organs of all participating
subjects examined by me were not adversely affected in the six
month period by smoking the cigarettes provided.-''~ Based
upon that report, Benjamin Few, President of Liggett, ordered
that the ad campaign be run./-t~ Mr. Bruff ~irst saw it in
its "comprehensive" format.
The FTC decision, however, further noted that Dr.
Carroll's survey continued beyond the initial six m~nths for an
additional eighteen month period. During that latter period,
four of the thirty participants displayed coughing spells which
they attributed to their smoking.''~/
Carroll Depo. Exh. i. "Accessory organs" were defined as the
"eustachion orifice, the sinus and the larynx." Tr. at 33-3~.
361. Bruff Depo. at 70.
3~2. The records of these participant5 were used as Exhibits 5A-SD
of the Carroll deposition. Tr. at 51.
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The existence of the FTC decision detailing the
procedure through which the campaign was developed -- and of
people, Mr. Bruff and Dr. Carroll, through whom the evidence
may be presented -- may afford the plaintiffs an opportunity to
demonstrate the flimsiness of the data relied upon by a tobacco
company in support of its decision to make a health claim on
behalf of its product.
Possible Industry Resoonse
a. In General
Two industry responses to the ad campaigns of this era
are possible: to defend oF to confess and avoid.
Defending the ads would blend the credible with the
incredible. One could reasonably "defend" the celebrity ads by
placing them in the context of the'advertising practices of the
time. In those days, most consumer products were using
celebrity endorsements; many still dO today. AS noted above,
ST~C is collecting ads of the day for other consumer products,
many of which utilize the same celebrities as do cigarette
ads, Comparison of these various ads could mute the criticism
that there was something particularly insidious about cigarette
advertising: cigarettes were advertised in accordance wi~h the
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practices of the time -- no better, no worse.
trying tO locate textbooks of the era to determine the type of
practices marketers were then being taught to use. Dr.
Blackwe!l of Ohio State indicated that he would not be
surprised if advertisers were not ~ncouraged to use celebrities
in their ads. If this proves to be true, it would tend to
deflate a potential "you'[e just saying that you were as bad as
everybody else" response from plaintiffs by showing
everyone was doing
The more difficult aspect of a "defense" of the ads
arises in the context of the safety ads. The traditional
industry response to assaults on these ads has apparently been
to assert that the ads only talked about "mildness" in all its
forms, i.e., no scratchy throat, no Cigarette cough; they had
nothing to do with reassurances against diseases. This
STIC is also attempting to perform the same function wi~h
respect to the "safety" ads. STIC advertising experts had
suggested that ads for other products, unencumbered by the
modern ~egulatory constraints, made claims similar to those
made in cigarette ads. The experts contend that this was trot.
fraud, but a different concept of "puffery" than the FTC or
other agencies would tolerate today. A preliminary search of
an old ad collection has somewhat confirmed this, e.o. ads
shoes which claim to prevent infantile paralysis, "more
doctors" use Mermen Shave cream, etc. this project is as ye~
in its preliminary stages.
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approach typically denies that those ads contain health
claims.).."
Whatever the semantic appeal of such a defense of ads
suc~ as "Not a Cough in a Carload," it becomes untenable in
defense of many o~ the old Camel ads. While the "T-Zone" and
"30-day test" might be shoe-ho[ned into the "mildness"
category, no such "defense" is available to "Camels Aid
Digestion." "Camels Give You a Lift," or "Camels Calm Jangled
Nerves." Although these ads did not discuss disease either,
the claims ace overtly health-oriented. Yet, to defend them,
it would be necessary either to deny the health claim or,
worse, to justify it.'~/ The latter course is obviously
unthinkable; the former places the witness in the uncomfortable
position of, when asked, trying to find a credible reason why
the same ads would not be run today.
~64 .
K. V. bey put himself in the untenable position of conceding
that Chesterfield's "Nose, Throat, Accessory Organs" ads would
violate Liggett's current policy of not making health claims
in ads (Dey Depo. at 340), but also denying that the ads
contained any health claims. (Id. at 350-51).
This was the approach taken in the 1940s before the FTC.
Mr. Horrigan found himself in just such a position. He
eventually said that Camel ads of the 1940-1950 variety would
not be used today because they would be "off-strategy."
Hc~rigan DeweZ Depo. at 68-69.
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The confess and avoid approach, which tested
relatively successfully in the Reach mock trial, is suggested
as the response to plaintiffs' position concerning these ads.
This approach would not lend undue emphasis to plaintiffs'
arguments, but instead concede thatthe ads were run and that
they would not be run today. Health claims were made, but they
were trivial: They dealt with throat scratch and coughs, not
with lung cancer or any other serious disease. In any event,
the last of such ads were run over thirty years ago~''~ and
were not so dramatic as to compel a plaintiff to ignore the
subsequent reports of allegations of adverse consequences of
smoking. Whatever the effect on plaintiff Of the last "More
Doctors" ad in 1952, it ceItainly should have been superseded
no later than the Surgeon General's Report Of 1964 and the
mounting multi-media anti-smoking publicity ever since. It
folds into the personal responsibility argument; plaintiff was
not smoking in the 1980s because of ads of the 1940s and 1950s;
he was smoking then Decause he wanted to.~!-Kll
367.
368 .
The last "Digestion" ad ran on Nov. 19, 1939: the last "Lift"
ad ran on Jan. I, 1939 (Rose Bowl game); the last "Don't Get
Your Wind" ad ran in Apr. 1936; the last "More Expensive
Tobaccos" ad ran on Jan. i, 1938 (Rose Bowl program): the
"Jangled Nerves" ad ran in Nov. 1942. Se.__~e Camel Campaigns,
MarCh 14, 1945 (50117 1935-1936). Tab 214.
Plaintiffs' surrebuttal, of course, is addic:ion, whic~ in
turn collides head-on with their warnings position, i.e____.~, a
stronger warning wou~d have caused plaintiff to quit, buz he
couldn't because he was addicted.
278 -
s~nssI
;e~eN e~ bu~u~e~u~eN pue bu~p~ne ~e~O
"l~e ~e ;3 'es~a^pe ~Ileu~5:e= ~IUO aq plnoqs
PIO eq~ "a~ue~ep ~ Xq Z~a~e~= .p~o^e pue sse~uo~, aq%
q~Ieeq aXe~ q~!q~ ~pe pIo pua;ap o~ ~d=e~e ~ou plnoqs
o~ pasn aq ue~ ssau~ u~o ,sg]~u~eT~ 'snq£
~o s~adse a^~eoq~Xsd eq~ bu3q~sap Auo~sa~
s!q u~ s~!ei~ aseq~ ~0 Xue~ ~o ~IP~le^ ~q~ ~az~ubo3az
~))eC emo~ap "~O 's~dx~ uo!~oXppe .s;~i~U!eld
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(i) Cree~inc the Cioatette Market
The allegation that the cigarette market was created
by inducin~ non-smokers to smoke through cigarette advertising
is answerable. STIC is developing tobacco historians who will
testify that the growth of the cigarette market was largely the
result of urbanization. During that process, former users of
cigars and plug tobacco found those forms of tobacco use
inconvenient or inappropriate to city life. Accordingly, the
market for cigarettes, a product the individual units of which
could be consumed faster, mote conveniently, and without the
need of a spittoon, grew. It later further grew with the
population.
(ii) Increased Advertisino Expenditures Caused
Increased Cigarette Consumo[ion
eTIC is developing econometricians who will ~estify
that cigarette consumption did not Increase because of
increased advertising. ~oteign experience has shown that
cigarette consumption has ~ncreased in countries with cigarette
advertising restrictions or outright bans. Moreover, this has
occurred in bcth soc~alis~ and free market countries. ~ :~ In
addition, recent domestic experience rebuts plaintiffs'
371.
Se___~e, e.o~., J. Bodde%Tn (ed.), Tobacco Advertisinc Bans and
Consumo~on in the !6 Counqries ([gB3); M. ware[sen,
Advertisin= and
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thesis. In 1982 and Z983, respectively, advertising
expenditures reached unprecedented heights; in both years,
consumption declined. Best of all, the source of these figures
is the FTC.!~L~"
(iii) Creating the Women's Market
Plaintiffs' contention that the tobacco industry
created the women's market for cigarettes is also factually
rebuttable. A tobacco historian will testify -- and at least
one magazine article of the eraJr/3-''/ corroborates -- that
cigarette advertising directed at women followed the growth of
the female smoking market. The female smoking market grew
during and immediately after World War I; advertising directed
at women, e._.~, "Reach for a Lucky Instead of a Sweet" (!92S),
followed the trend by almost a decade. Why? "IT]he cigarette
people are frankly afraid of stirring up the reformers and
bringing down upon themselves a lot of nuisance
legislation."/-Li~ Presumably more women also began to
consume alcoholic beverages. They obtained the right ~o vo~e,
372.
373 ,
374 ,
Federal Trade Comm'n, Report to Congress Pursuant to the
F~deral Cigarette Labeling and Advertising Act for the Years
1983-1983, at 6 (June 1985).
Bonnet, "Why Cigarette Makers Don't Advertise to Women,"
Advertising ~ Selling,. at 21 (October 20, 1926), Tab 215.
Id. at 46. The author did note a single exception --
Marlboro, which was advertised as "Mild as May."
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to drive, to attend colleges and professional schools. Thus,
it should be no revelation that they began to smoke.
(iv) Free Cigarettes to the Troops
This is an issue upon which the industry can almost
become righteously indignant. Cigarettes were provided to the
troops to boost the morale of the soldiers overseas.
Cigarettes were wanted and were appreciated:
General Pershing:
need to win this war.
much as bullets.
"You ask me what we
answer tobacco as
General MacArthur: "The entire amount
[$I0,000.00 raised by employees of Wright
Aeronautical] should be used to purchase
American cigarettes which, of all personal
comforts, are the most difficult to obtain
here.-/-i~-~
General Clare Chennault (Commander of
the "Flying Tigers'): "Please accept from
me . . our sincere thanks for your gifts
of cigarettes. We would appreciate your
continuance of the shipments of these free
cigarettes and you may be assu,ed I will
personally supervise the
distribution .... "!LLzJ
Letters of appreciation were also received from soldiers in
Korea.
375 .
376.
377.
R. Heimann, Americans and Tobacco 227 (1960)-
I_.~. at 242.
Letter from Majo~ General C. L. Chennault to Mr. David ~lanco,
May 19, 19~3.
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An RJRT internal document explains this seemingly
patriotic theme. Apparently, at the outset of American
involvement in WOrld war I, the tobacco manufacturers were
summoned to Washington and given the Hobson's choice of
providing cigarettes to the Government, even to the detriment
of the demand of the civilian market, or having their plants
commandeered by the Government. If this is true. however, it
rebuts any claim that the industry volun:arily proselytized in
the military market. The Industry, apparently, did not
hesitate at or protest the Government's request~''" and was
happy to cooperate.
(v) Free Cigarettes to the White House and
Con~ressiona! Delegations
In accordance with a long term practice, Reynolds has
provided free cigarettes to the President, First Family, White
House Staff and their guests. This practice has continued with
the current President. All of the packages contain the
Presidential Seal and some contain messages as appropriate such
as "Welcome Aboard the Presidential Aircraft." "Welcome to Camp
David.-~''z
378.
379.
Letter from S. Clay Williams to Honorable Francis B. Hunter,
Pecem~ber 3, 1926 (50177 1727). Tab 216.
Letters regarding "Presidential Cigarettes" (50~60 0317)
217.
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Caveat: The rest of the industry may
not be aware of this practice and presumably
the anti-tobacco lobby is not. Therefore,
the Reynolds team should keep this practice
confidential because the White House could
terminate it with some sort of adverse
statement.
The S~r~eon General opposes all smoking, while his
ultimate boss hands Out free cigarettes containing the
Presidential seal. We should ascertain if President Carter
followed this practice, especially in light of Secretary
Califano's crusade.
We should consider various offensive uses of this
information and o~tain samples and enlargements of the
Presidential seal on the packages.
Having the Presidential seal (of approval) on all four
of the major brands of Reynolds cigarettes is very helpful to
the basic risk/benefi~ analysis. The seal also renders the
Government opposition to smoking via the various federal
agencies and the Surgeon General overtly hypocritical.
d. 1953-1964: The Advertising Response to the
Health Scare
Plaintiffs' Contentions
The advent of the 1950s brought more serious and more
popularized charges against the cigarette. In 1952, Reader's
Digest published Cancer by the Carton. In November 1953, the
results of the Wynder-Graham mouse-painting studies were
published ~n the popular press. This publicity linking smcklng
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and cancer took its toll on the cigarette industry; cigarette
consumption declined in both 1953 and 1954.
The industry's response to these unhappy events was
the aggressive ma:keting of the filter cigarette. Filters had
been on the market before, but had never achieved a significant
share of the smoking market. They were thought to be too
feminine and to dilute the tobacco taste. They were, howeve:.
also thought to reduce the amount of "tar" which the smoker
ingested./-LL/ Accordingly, filters were marketed with direct
appeals to smokers' health concerns. For example:
L & M:
Kent:
"This is it. L & M filters are
just what the doctor ordered:"
"What a priceless difference in
PROTECTION a few extra pennies
make~"
"New Health-Guard filter makes
Viceroy Better for Your Health."
"Recessed Filter -- Maximum
Health Protection."
380 •
38!.
This decline is acknowledged by industry executives. Se___S
Heimann Depo. at 20~; Cullman Depo. at 254; Heimann Depo.
Exh. 4 (65009 0793). See also 1956 Annual Report, R. J.
Reynolds Tobacco Co., at 4 (50043 4751). Tab 218.
Reader's Digest later noted, however, that many of the filte=s
on the market produced a greate~ tar yield than did some
unfiltered cigarettes. Miller & Monahan, Rea~er's Dioest,
"The Facts Behind Filter Tip Cigarettes," (July 1957). TaD
219.
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Some appeals were less overt, speaking instead of "mildness" or
the "pure white" or "snowy white" filter. Regardless of the
approach taken, the intent was the same -- to reassure smokers
of the "safety" of their smoking habit. Late~ in the decade,
this theme of reassurance surfaced anew in the "tar derby," in
which many c~garette brands competed to position themselves as
being lower in tar and nicotine than their rivals. Finding
this competition to have been tantamount to a new barrage of
health claims, the FTC ordered the practice stopped in 1959-60.
While the "safety" ads for filters were designed to
keep smokers smoking, the glamour ads of the day were intended
to enlarge the smoking population. With the growth of the
medium of television, cigarette advertising was able to reach
unprecedented numbers of potential consumers. To ensure that
such advertising reached the lucrative youth market, the
tobacco companies sponsored or co-sponsored telecasts of
professional Sporting events/-zz" and recruited virtually
every major sports figure to endorse its products. Movie stars
continued to be used, and television celebrities endorsed the
product on their shows, often in skits which were almost
382,
Plaintiffs have obtained in the Barnes production television
scripts which indicated that Reynolds ran daily ads tracking
the 1956 Yankee-Dodger world Series and, in 1960, daily eds
featuring Roger Marls in pursuit Of ~a~e Ruth's homerun
record.
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indistinguishable from the shows themselves. Cigarette
advertising expenditures continued to rise and, following the
two-year decline in 1953 and 1954, cigarette consumption rose
as well.
Supporting Testimony and Documentation
a. Health Claims for Filters
It has been the consistent position of the industry
representatives who have been deposed that ~ilter cigarettes
were marketed in response to consumer demand./-kl" When
pressed further, the deponents either denied knowledge of
whether health concerns influenced this consumer demand,~''I
o: grudgingly admitted that health concerns may have been a
factor.'/-Li" Both of these positions are belied not only by
the ads themselves, some of which, as noted above, contain
overt health messages, but also by certain of the documents
produced in Cipollone. These documents indicate that the
companies were aware that consumers thought that filters were
"safe:," For example:
384 .
3@5 .
ee__e, e.g., Bruff Depo. at 56-57; Lougee Depc. at 370; Horrigan
Dew.~ Depo. at 73-74. Accord 1957 draft ad for TI "Where Does
Research $~and on Tobacco and Health Today?" (T 13855).
Tab 220.
Se___~e, e.g., Ave Depo. at 229-30; Gunzenhauser Depo. at
Harrington Depo. at 67; Ha!! Browner Depo., at Ii.
See, e.g., Cullman Depo. at 27-30: Ave Depo. at 232; Heimann
Depo. a: 231, 265, 276.
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386.
387.
388.
389.
390.
391.
A 1966 poll undertaken for TI revealed
that 28 percent of filter smokers chose
filters because they perceived them as
"Better for health; less nicotine"
(650090510). It also concluded that
"~t~he most important reasons for
smoking filtered or menthol cigarettes
are health-associated;"~'~
An undated (c. 1963) Pall Mall brand
history observed that "filters' health
claims had been raised to the decibel
level of a seven alarm
fire .... ";~''"
A 1963 survey conducted for Liggett
indicated that 61 ~ercent of those
surveyed thought that filters were the
safest cigarettes to smoke;!z-~
A 1957 survey conducted for Liggett
revealed that a large segment of the
smoking market turned to filters due to
the cancer scare.~''~ It also
revealed that the female Chesterfield
smoker "has a strong proneness toward
irrational fear and a certain amount of
~ypochondria" concerning the "health
scare." Conseguentlyo she "is very
vulnerable to filters;""/2-z" and
Neimann of American in h~s 1960 book,
Tobacco and Americans, claimed that the
health scare led to the return of the
"mouthpiece" to cigarettes, now a
filter.~':~
(65009 0511; Harrington Depo. Exh. 19).
(65009 0845; Heiman Pepo, Exh. 9).
(RC 6028534; B:uff Depo. Exh. I0). Tab 221.
(RC 6024000; Provost Depo. Exh. 28, at 186).
Id. at 95.
(55009
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Thus, plaintiffs will be able to show that the
industry was well aware of the reasons for the trend toward
filters./-z-t/ Consumers thought that they were safer and
cigarette advertising cynically reinforced this belief.
"Just what the Doctor Ordered"
Liggett produced a June I0, 1955 letter from Dr.
Charles Kensler of Arthur D. Little, Inc. to Mr. Benjamin
Few, President of Liggett./~-~" Dr. Darkis of Ligget~ R&D was
copied on it. In the letter, Dr. Kensler wrote:
[W]e do not have sufficient data of
own to make any definite statement of the
effectiveness of the L & M filter.
However .... the preliminary biological
data w~ich we have at the moment show
somewhat less activity for the L & M fil~e:
tar than for the regular cigarette tars
being tested.
Notwithstanding the reservations expressed above,
Liggett conducted the "Just What the l)~ctor Ordered" campaign
for L & M. The letter f~om "Dr." Darkis which appears in the
392 .
393.
A 1960 National Study of Cigarette Smoking prepared for the
Esty Agency revealed that 67 percent of Salem smokers thought
that filter cigarettes were the =safest" to smoke. Tab 223.
In addition, a 1958 memorandum to Bowman Gray in~ica~ed that
Salem smokers were more cancer-conscious than most smokers.
Yet, Salem sales were unaffected by the =recent" cancer
scare. This is attributed to the Delief that Salem is "safe~"
due to the presence of menthol and a filter. Ta~ 214.
Letter from C. J. Kensler to B. F. Few, June i0, 1955 (RC
6007364; 65005 2369). Tab 225.
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ad, as well as the copy in the ad itself, makes numerous claims
for the filter. Dr. Darkis is not a medical doctor; he is a
Ph.D. This important fact And the fact that Dr. Darkis was
employed by Liggett were omitted from the
Deponents' explanations for this particular
campaign ring hollow and highlight the futility of defending
ads of the era. Dey of Liggett denied that there was a health
claim in the ad. The headline "Jus~ What the Doctor Ordered"
was me=ely a phrase of the time, similar to "33 Ski~oo," and
had nothing to do with the filter./-z~ ~ruff of Liggett also
called it a "t0ng~e in cheek" version of a popular
phrase.''-~-t~ Dey did no~ explain how the inclusion of a
lesser from a "D~." was "tongue in cheek."
b. Television Adwe:tisinq
In the Barne__.._~s production, plaintiffs selected many
television scripts for Camels. They illustrate each type of ad
discussed above, tO include the use of movie stars (e_:_-q., John
Wayne, Henry Ponds, Maureen O'Hara), tel~vision personalities
(e.c., Brian Keith, Robert Young, Phil S~ivers), and sports
figures (e.__~, Mickey Mantle, Roger Mari~, Early wynn). Many
"skits" for Camel during the "Phil Silvers Show," featuring
394. Dey Depo. at 357-58.
395. Bruff Depo. at 293.
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Silvers as Sergeant Bilko, and scripts for use during major
league baseball games were also included in the
production.D-/-~"
Possible Industry Responses
a. In General
As with the earlier ads which contained health claims,
the industry's best position would be to "confess and avoid,"
i.e., admit it was done, concede that health claims were made,
and call attention to the length of time that has passed since
then. This position is easiest for Reynolds to take during
this period; its filter ads stressed taste, although the "pure
white," "modern," or "snowy white" filter was also touted.
Should a warnings, awareness, or advertising expert testify for
the defense, he or she may wish to refer to the working paper
prepared for the FTC, the thesis of which is that the health
ads backfired on the industry by reminding the smoking public
of the adverse allegations then being made agains~
smoking.
396 .
397 .
Illustrative Camel cigarette television advertisements (50044
7031). Tab 226.
Calfee, Cigarette Advertisino Health Information and
Requlation Before 1970 (Working Paper No. 134) (Dec. 1985).
Tab 227.
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AS to the "glamorous" ads, the STIC project of placing
the ads in the context of contemporary marketing practices is
an appropriate response. Evidence of such practices is found
in an April 26, 1963 letter from Frank Stanton, President of
CBS, to Senator Frank E. Moss.///, In it, Mr. Stanton wrote:
• . . you refer to "glamour" in
cigarette advertising and the inference in
some of the ads "that success in the
business or social world goes hand-in-hand
with tobacco smoking." The advertising of
cigarettes, in common with the advertising
of most other products, involves the
depiction of the use of the product in
attractive and pleasant surroundings and a
portrayal of pleasurable reactions of
users. To do otherwise would negate the
purpose of advertising.
b. Health Claims for Filters
While the move to filter cigarettes was clearly due in
large part to the health concerns of smokers and wh~le it is
also clear that certain of the ads "exploited" those concerns,
it is likewise true that ~here were market forces at work which
were beyond the control of the tobacco companies. The
awareness chronology created by STIC indicates that, for
example, Reader's Digest published several major articles
concerning smoking and health during the 1950s, one of which,
WANTED -- And Available -- Filter-Tips That Really Filter (Aug.
398. Letter from Frank Stanton to Senator Frank E. Moss, April 26,
1963 (RC 6014425; 65005 2479). Tab 22B.
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1957), virtually endorsed Kent as a "safe" cigarette. One
historian noted that this a~ticle alone caused Kent sales to
rise almost five-fold and saved Lorillard as a company./-Lz~
Mo/eover, the Reader's Digest and Consumer Reports articles of
the 1950s which listed the tar levels of major cigarette brands
certainly contributed to the initiation of the "tar derby," as
may have congressiona] proposals to disclose tar and nicotine
content on cigarette packages. Thus, whatever the activity of
the tobacco companies, consume: demand was being influenced by
other information in the public domain.
In addition, during this period advertising practices
came under increasing governmental restrictions--a pattern
which has continued to date and which makes cigarettes a unique
product. Thus, in 1955, the FTC promulgated the Cigare::e
Advertising Guides."--~-~
3, 1964 to Present: The Modern Era
Plaintiffs' Contentions
The year 1964 was a watershed for the tobacco industry
when the Repor~ of the Surgeon Genera!'s Advisory Committee on
Smoking and Health gave government sanction to the link between
399 .
400 .
R. Sobel, They Satisfy: The Cigarette in Ame[ican Life 180-81
(1978).
FTC Release, September 22, 1955 rezrinted in [CCH] Trade Reg.
Rp:r. ¶39,012.
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cigarette smoking and disease. From an advertising and
marketing perspective, the Report boded the beginning of a
significantly higher level of government involvement in the
regulation of cigarette advertising practices. The industry
adopted a voluntary Cigarette Advertising Code to avoid
government regulation of its ads which reinforced the smoker.
Avoiding government regulation allowed the industry to continue
deceptively reinforcing the smoker because the Advertising Code
was effective.
Supp~rtino Evidence and Documentation
a. Adoption of the Cigarette Advertising Code
Fearing and seeking to avoid government regulation of
cigarette advertising practices,~'°'~ the industry promulgated
the Cigarette Advertising Code in 1964. lit is noteworthy that
the ~ritish tobacco industry adopted an a~reement to modify
advertising to avoid appealing to children in 1962. This
largely coincided with the report of the Royal College that
cigarette smoking caused lung cancer.] The domestic Code's
provisions generally forbade the use of celebrity endorsements,
advertising is college media or other media directed primarily
at those under 21 years of age, health claims, and the use of
models who are or appear under 25 years of age. The authority
401. Bru~f Depo. at 85-86.
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to enforce the Code was vested in a Code Administrator, the
first and only of which was former Governor Robert B. Meyner of
New Jersey, who was empowered to assess damages of up to
$I00,000.00 for violations. The Code became effective on
January I, 1965.
This much-heralded exercise in "responsible"
self-regulation p~oved to be no regulation at all. First, the
Office of the Code Administrator practically died stillborn.
Although he was able to affect some minor changes in
advertising practices, such as persuading Liggett to drop its
description of is filter as "pure white,"~-~-~'" Governor Meyner
sadly found that, when he sought to exercise the full scope of
his authority, the tobacco companies simply withdrew from his
supervision,zta2-~/ The industry then lapsed into the
comfortable position of policing each other's compliance with
the Code.
402.
403 .
Bruff Depo. Exh. 16 (65005 2388). Tab 229. Liggett wrote
Gov. Meyner in OCtober 1965 and asserted that it had not used
the adjective "pure" for "some months now." Yet, in May 1984,
Liggett had withheld action on deleting "pure" until it would
be raised as an issue by the Code Administrator. Bruff Depo.
Exh. 15 (65005 2390). Ta~ 230.
Lorillard allegedly withdrew from the Code Authority when it "
was fined for running an unapproved ad. All tobacco companies
except Philip Morris and Reynolds followed. Judge of
Lorillard, however, testified that Lorillard withdrew from
both the Code Authority and TI because Lorillard wanted to
advertise True's tar and nicotine levels, a practice forbidden
by t~e Code. (Judge Depo. at 233).
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Nor did the Code significantly impact upon the
industry's historic reliance upon the twin advertising themes
of glamour and safety. To be sure, the identifiable sports,
film, and television celebrities were gone. In their stead
appeared depictions of happy, healthy, macho, or glamorous
models engaged in a variety of adventurous or social
activities. Like the celebrity ads before them, these ads were
designed to increase the cigarette market. John Wayne was
replaced by the Marlboro cowboy and Camel's "Turk'; Maureen
O'Hara was replaced by the Virginia Slims, Eve, or More lady;
professional spo~ts figures were replaced by healthy young
adults climbing mountains, cavorting in the ocean, or racing
cars. With the inclusion of the package warning and, later, a
warning label in cigarette advertising, these advertising
practices undertook the additional task of detracting the
potential or current smoker's attention from the warning
label. If the warning was designed to discourage smoking, the
ad was designed to reassure. The warning label itself was
positioned in a location in which it would receive minimal
attention.
Just as the industry had experienced a decline of
consumption in 1953-54, it witnessed a second decline following
the release of the Surgeon General's Report. In the 1950s, the
companies' defensive response was the agg:essive marketing of
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filters as "safer'; in the 1960s, it was the aggressive
marketing of low tar and nicotine cigarettes. These cigarettes
were sometimes subtly, and sometimes overtly, offered as viable
and safe alternatives to quitting. As the evidence against
smoking continued to mount, a new "tar derby" ensued, with
competition among certain brands moving into the "ultra-low"
tar category. This effort was intended to offset the
progressively greater health concerns of the smoker with
progressively lower tar numbers."~'~
Other varieties of cigarettes were marketed to the
public with at least subtle representations of safety. These
included the charcoal filter (Lark, Tempo, Tareyton), the low
gas cigarette (Fact), the all-natural cigarette (Real), and the
Multi-Filter.
404.
An argument which plaintiffs have not yet made is that
ultra-low tar cigarettes are designed to be "starter"
cigarettes. The argument goes like this: Most new smokers
start with a full-flavor cigarette, such as Marlboro. These'
cigarettes induce the most unpleasant reactions that are
associated with one's first cigarette, i.e____=, throwing up,
turning green, etc. An ultra-low tar cigarette, the effects
of which many veteran smokers liken to "sucking air," would
ease the novice into the smoking habit. The difficulty with
this argument is that ultra-low tar ads are generally o~ the
"product imagery" variety, emphasizing the tar level, rather
than of the "user imagery" variety, emphasizing the lifestyle
of the user. It is this latter variety of ads which have been
alleged to attract the new smoker. If the advertising of
ultra-low tar cigarettes should change, however, this argument
might become more plausible.
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The 1967 FTC Report to Congress pinpointed the
"loopholes" contained in the language of the Advertising Code:
"Cigarette advertising shall not appear loin television
or radio programs, or in publications directed ~rimariIy to
persons under 21 years of age"-~z°'" . . Cigarette
advertisingshall not represent that cigarette smoking is
essential to social prominence, distinction, success, or sexual
art:action .... Cigarette advertising shall not depict as a
smoke= any persons participating in, or obviously having just
participated in, physical activity requiring stamina or
athletic conditioning beyond that o~ normal recreation."'°''
The Report then criticized cigarette advertising for appearing
during television shows with an audience of at least 45 percent
of its viewers under 21; fo~ portraying physical activity as
long as the smoker is not a participant; and for inferring that
smoking contributes to success, even if it is not essential to
it.
405 •
405 .
Reynolds has lowered the minimum age for publication
readership to iB. Horrigan De~ Depo. a= 134. An
interesting, but ultimately irrelevant, fact concerns Salem
and Camel advertisements in Movie~oer magazine, a monthly
publication distributed at selected movie theaters. In
addition to the fact that access to the magazine and, ,.
therefore, the ads is virtually uncontrolled, Moviegoer is
published by the 13-30 Corporation. Dave Alden (JD~&P) called
13-30 to find out where it got its name from. ~3-30 indicated
that is name reflects the age range of i~s target audience.
1967 FTC ~eport at 24-27 (emphasis added) (Cullman Depo. Exh.
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Certain ads are at least at the fringe of permissible
cigarette advertising under the Code.--'a'" Illustrative of
them are:
campaign.
"Essential to social prominence': Sterling, More.
"Essential to success': Vantage "Taste of Success"
"Essential to sexual attraction': More, Salem Spirit,
Camel "Turk" campaign, Salem "Hard Pack" introduction.
"Beyond that of Normal Recreation': Winston
mountainclimDer, Vantage windsurfer and ballerina, Salem Spirit
campaign activities.
Models under 25: The current Salem Spirit campaign
comes the closest to violating this, but the current "Light My
Lucky" campaign utilizes executions which are closer to the
margin.
Without mentioning the Code specifically, the 1981 FTC Staff
Report cites a number af campaigns which, if interpreted as the
FTC staff has chosen to interpret them, would violate the Code
as well."-2-z"
In the deposition testimony of industry executives,
Orlowsky Of RJR"-~2-~'~ and Forsythe of Brown & Wi!liamson,"'~"
407.
See, e.g., Tab 2 at 50-54; Tab 4 at 63-54; TaD 6 at 46-48. An
unhelpful quote was also located in a January 1975 memorandum
from M. G. McAllister to T.E. Sandefur: "Further, it is
believed that the Code is a 'motherhood statement,' which is
violated by almost all cigarette advertising using imagery.".,
408. 1981 FTC Report at 2-8 to
409. Orlowsky Barnes Depo. at 94.
410. E.c__., Forsythe Depo. at 58-59.
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the Advertising Code was generally described as a standard of
industry "responsibility." This description has two
implications. First, it brands as "irresponsible" those older
ads and marketing practices which would violate it today. The
most notorious of these would be celebrity endorsements, old
Camel ads, and marketing to college students. It also affords
plaintiffs the argument that the ads described above, which may
be interpreted as possibly violating the Code, are part of a
continued pattern of corporate irresponsibility in the
marketing of cigarettes.
Possible ~ndustry Response
Perhaps the optimal perspective on modern era
cigarette advertising practices proceeds as follows: Cigarette
advertising is more restricted than that for any other lawful
consumer product. By law, cigarette packs ~nd advertisements
must carry a warning lal~el;"--uk" cigarette ads cannot appear
in the broadcast media; and print ads must carry the tar and
nicotine content of the brand'adve=tised. Other products,
e.G., saccharin, liquor, co,fee, red meat, bacon, eggs, but=er,
have also been associated with various diseases; none are
subject to these restrictions.
411.
The companies had originally voluntarily agreed with the FTC
in 1970 to display cigarette packs in their ads such that the
warning label was showing. ~n a 1972 consent decree, the
industry agreed to place the warning label in ads. The label
is now statutorily required to De placed in ads.
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In addition to legal restrictions, the Industry
adheres to a voluntary advertising code. This self-imposed
restraint further limits the advertising techniques which may
be employed by the industry, many of which are regularly used
for other consumer products. A voluntary sampling code also
proscribes otherwise lawful activities. At least as regards
RJR, even further limitations have been placed on permissible
marketing practices.''~"
Within these strictures, cigarette advertising
utilizes the same techniques as those employed for other lawful
consumer products. They attempt to portray the product and its
users in the best possible light. Indeed, many cigarette ads
are virtually indistinguishable from those of other products.
Also like those for ocher products, not all cigarette ad~ are
directed at all people. Through an expert, the concept of
market segmentation woulf be explained and illustrated by
comparing the techniques used in marketing cigarettes with
those used in marketing automobiles. Just as the station wagon
412.
E._:..~, not studying the smoking practices of those under 18,
not marketing to non-smokers, not attempting to dissuade
potential quitters. Dairy and beef industry ads which migh~
be construed as marketing to "potential quitters" are
available. Examples of ads clearly directed a~ children are
also available.
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is not marketed ~o the jet-setter, so, too, Virginia Slims are
not marketed to middle-aged men.'''"
a. Cigarette Advertising Code Issues
Although there is no effective way to rebut the
proposition that the cigarette companies submitted to the Code
Authority only as long as it suited their economic purposes to
do so, a case can be made that Governor Meyner, and, by
inference, the Advertising Code, affected significant,
long-term changes in cigarette marketing practices. The 1966
Report of the Code Authority of the National Association of
Broadcasters details four pages of changes in cigarette
advertising techniques initiated by the Code
Administrator.'-/2-''" In addition, Governor Meyner issued a set
of procedural regulations'''" and rejected a number of
ads."'--~-~" He also promulgated a rule that cigarettes could
not be advertised during television shows for which over 45
percent of the viewing audience was under 21. This particular
413 .
414 .
415.
4i6 .
An outline for the potential testimony of Dr. Roge: D.
Blackwe!l of Ohio State in Galbraith was prepared, wi~h
exhibits, and illustrates t~is concept.
(RC 6007591-7594; Bruff Depo. Ezh. 12).
Regulations Of The Cigarette Advertising Code, effective
April i, 1965 (5~368 6082-6096). Tab 231.
Rejection of Advertisements (50228 3897; 50368 5788-5798).
Tab 232.
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ruling caused Reynolds to withdraw its sponsorship of Th_._~e
Beverly Hillbillies"''/ and to later contractually require of
radio and television stations that cigarette ads would be run
onlZ in adult time slots. There is no available evidence that
the practices initiated by GOVernor Meyner were abandoned after
his departure.
Documents produce~ in Cipollone indicate that, when
the Code was first promulgated, Liggett sent memoranda to
sales personnel emphasizing the sampling provisions of the
Code"--L~" and to its department sales managers concerning the
sampling and health claim p~ovisions of the Code and the role
of the Code Administ:ator.--'''~ Plaintiffs, of course, may
choose to characterize these documents as "CYA" letters
designed to create the appearance of seriousness about
enforcement for the public in general and Governor Meyner in
particular. Howeve=, even after the d~mfse of the COde
Authority had begun, Philip Morris issued a memorandum in
indicating that it considered that the provisions of the Code
417.
418.
419 .
Reynolds advertised on The Flintstones, which was described in
Reynolds marketing documents as an "adult comedy."
Letter from G. B. Leake, December 22, 1964 (65005 2443; RC
."
6010048). Tab 233.
Letter f¢om Samuel White (Liggett) to Department Sales
Managers, December 13, 1965 (65005 2442; RC 5010047). Tab
234.
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to continue to be in effect.''a" Internal Reynolds documents
indicate a continued sensitivity to the Code as well. For
example, a training manual foc incoming personnel educates them
concerning the provisions of the Code and illustrates
violations with hypothetical ezampl~s. Contracts with models
to be used in ads require the models to certify that they are
over 25 years of age'''' and ad ezecutions are visually
screened to ensure that they Ioo__k over 25 as well. Ads have
been rejected on this basis."~-~tl" Ads have also been rejected
because the physical activity depicted in them appeared to be
too strenuous. Finally, correspondence between Reynolds and
other tobacco companies demonstrate that it is serious about
the current practice of the companies' policing of o~e
another's compliance.
420.
Confidential memorandum, undated (65005 2097; I002905501).
Tab 235. In the upper right hand corner of this document is ."
the handwritten annotation "3/5/68 Approved. J. Cullman."
Model Release, undated (50235 9393-9394). Tab Z36.
Interview with Ken Neher (May 30, 1985).
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b. ~pecial Modern Era Advertising Issues
Plaintiffs" Contentions/Supporting Testimony and Documentation
(i) The Broadcast Media Advertising Ban'-J-!1
As a result of a June 1967 ruling of the Federal
Communications Commission,"--L~" the broadcast media
required to devote a significant amount of broadcast time for
the airing of anti-smoking commercials. The commercials had an
observable impact; for the third time in two decades, cigarette
consumption declined.
The tobacco industry was worried.~-~!j-~ Consequently,
Joseph Cullman fir of Philip Morris, on behalf of the Industry,
appeared before Congress in 1969 and offered to remove
cigarette ads from the broadcast media in return for statutory
423. The industry's congressional activity with regard to the
broadcast media ban is discussed in this section because of
its impact on subsequent cigarette marketing and advertising
practices. Other areas Of industry lobbying activity,
including particularly the opposition to the 1966, 1970, and
1985 warning labels, opposition to disclosure of tar and
nicotine and carbon monoxide lewels, and opposition to the
disclosure of additives fall within the purview of the Joint
Industry Action team.
424. Subsequently upheld by the D.C. Circuit. Banzhaf v. FCC, 405
F.2d 1082 (D.C. Cir. 1968), cert. de,ied, 396 U.$. 842 (1969).
425.
In both 1968 and 1969, Harrington (Liggett) called the
."
commercials the "most important of our many adversities in the
cigarette business today." Harrington Depo. ExhS. 2, 5 (RC
6027034) and 8 (RC 6027042). P~ilip Morris documents note the
decline in consumption. Cullmaa Depo. Exhs. 43, 44, 45; Merlo
Depo. Exhs. 5, 6, 7, 8. Reynolds documents do as well.
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protection against potential antitrust implications. The
alleged altruistic purpose of the offer -- one still echoed
today"--L~ -- was to remove cigarette ads from media which had
an especial exposure to youth. On April I, 1970, Congress
passed the broadcast media advertising ban, effective midnight,
January I, 1971."--/-!/ On that date -- following cigarette
co-sponsorship of New Year's Day college football bowl games --
cigarette advertising left the airways; so, too, did mandatory
free equal-time anti-cigarette ads. This could be
characterized as yet another result of the strategy described
by TI's President Horace Koznegay of "winning while seeming to
lose."'~-t/-i~ In any event, cigarette consumption began to rise
once again.
The tobacco industry now aad a significant reservoir
of advertising dollars which could no longer be spent on access
to the broadcast media. Cullman had ~estified before Congress
that he would be "surprise~" if those dollars flowed to the
print media.'''' This is, however, precisely what
42~.
427.
418.
429.
Cullman Depo. at 255; Horrigan Dewey Depo. a: 182; Judge Depo.
at 592. This altruistic purpose is allegedly belied by the
companies' employment of broadcast media in countries in which
it is permitted. Se___~e Horrigan Dewey Depo. at 90.
-"
Pub. L. 91-222, 84 Sta~. 88 (Apr. l, 1970).
(T 004745; Kornegay De~o. Exh. 4). Tab 239.
(65005 20@2; Cullman Depo. Exh. 75). Tab 240.
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(ii) Special Events
Cigarette advertising dollars also found their way
into the sponsorship of special events, such as the Virginia
Slims Tennis Tournament, Camel GT road races, the Winston Rodeo
series, or the Salem Spirit Concert series. Sponsorship of
such events both aSSociated cigarettes with the athletic or
social activity sponsored and, when television coverage takes
place, circumvents the b~oadcast media Dan.
(iii) Stadia Bill Boards
Similarly, the purchase of advertising space in sports
arenas and stadia both attains broadcast media coverage and
exposes cigarette advertising to the youthful attendance at
sporting events. Finally, cigarette advertising dollars are
used to place cigarettes and cigarette ads in movies, with the
expectations that the movie's audience might be composed of
young potential smokers -- Superman II's extensive footaqe of
Marlboro ads is an example -- and that the movie might
eventually be presented on television."-/-u/
430.
431.
Merlo of Philip Morris testified that more money was spent on
point-of-sale advertising as well. Merlo Depo. a~ 74. ."
Another potential allegation of an attempted circumvention of
the broadcast ban involved Reynolds" advertising of Winchester
Little Cigars. Winchester was classified by both the IR5 and
the Bureau of Alcohol, Tobacco and Firearms as a cigar.
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(iv) Sampling
A ~ast variety of cigarette p~omotion which has taken
on additional importance since the broadcast media ban has been
sampling. There is no better way to induce a non-smoker to
experiment with cigarettes than to provide them with cigarettes
for free."--LL" Although the Advertising Code had contained
some provisions regarding sampling, the industry nonetheless
chose to promulgate a separate Code of Cigarette Sampling
Practices in 1983. It generally prohibits the distribution of
samples to non-smokers or those under 21, or near schools or
any other center of youth activity. Like the Advertising Code,
however, the Sampling Code is a paper tiger lacking any
credible enforcement mechanism. Cigarette companies are to
polive their own sampling personnel, a requirement in direct
431 .
432 .
Footnote Continued From Previous Page
Accordingly, beginning in 1971, Reynolds advertised it on
television. Winchester marketing documents indicate an intem:
to "exploit advantages of broadcast media no longer availaDle
to cigarettes." John Banzhaf complained to the FTC, which
referred the petition to the Justice Department. Justice
agreed with Reynolds. Nonetheless, Reynolds agreed to
withdraw Winchester advertising from television in March
1973. Congress later extended the broadcast media ban to
include little cigars. Pub. L. No. 93-109, 87 Star. 352
(Sept. 21, 1973).
Even one STiC-developed defense expert would support this
argument. Se...~e Interview with Dr. Herbert Krugman, at 3
(Sept. 19, 1985).
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conflict with the companies' qoal of increasing the smoking
ma[ket. In fact, reporters for the show "20/20" found RJR
personnel distributing samples outside a David Bowie concert --
not, according to Reynolds' executives, a "center o~ youth
activity" within the meaning Of the Sampling Code"-A-~" -- and
to minors."--Li"
Possible Industry Responses
(i) Stadia Billboards
Althouqh the plaintiffs' argument that use of stadia
billboards is designed to both circumvent the media ban and
appeal to youth is attractive, Reynolds internal documents
should ameliorate its impact. The documents indicate that the
primary target of stadia advertising is the audience in
attendance, although the company is not unaware of "secondary"
exposure via television. In addition, Reynolds has canceled
contracts for. stadia adveEtisln~ where a substantial use of the
facility would be for college football, such as Aloha Stadium
in Honolulu.
433 .
434.
Horrigan Dew_S.~9_Z Depo. at 94
"20/20" importuned a 16 year-old to approach sample
dist.ributors on camera until one gave him a pack of
cigarettes. Horrigan Depo. Exh. 4, at 5. TaD 241.
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(ii) eamplinq
Although plaintiffs may be ezpected to cite the
"20/20" episode as empirical evidence of the lack of efficacy
of this Code, Reynolds documents indicate a seriousness about
its enforcement. Contracts with the agencies which conduct the
sampling for Reynolds clearly state that samples are to be
given only to smokers over the age of 21. Instructions
concerning these limitations are also provided to the samplers
themselves. These instructions strongly emphasize that their
continued employment in the sampling program depends upon their
adherence to these limitations.~
4. Low Tar/Charcoal Filters/Low Gas
Plaintiffs" Contentions
The plaintiffs contend that certain types of
cigarettes were marketed to alleviate smokers health concerns
in an effort to deter them from quitting.
Supportin@ Evidence and Documentation
The most notorious of the low tar ads which may be
construed as offering low tar cigarettes as an alternatiwe to
quitting are those for True. The principal ads in point are:
"Considering all I'd heard, I decided
to quit or smoke True. [ smoke True.
435.
436 .
Letter "Youth Smoking Brochure--Draft" from Thomas J. Rucker
to 5. B. Witt, III, January 29, 1985 (50365 7895). Tab 242.
(65005 1382; Ave. Depo. Ezh. 5). Tab 243.
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"I'd heard enough to make me decide one
or two things: Quit or smoke True. I smoke
True.-'--LZ-
"True. Easy on your mind. Easy on
your taste."'--Lz"
The ezplanations of these ads proffered by Lorillard ezecutives
are somewhat disingenuous. Ave interprets the *Quit or smoke
True" ads as reflecting the barrage of publicity about low tar
cigarettes, but denies, in the face of the ezplicit language of
the ads themselves, that the only two options considered by the
smokers in the ads were to quit or smoke True."-/-z" Mau of
Lorillard initially conceded that the ads reflected information
about low tar cigarettes which was then circulating in the
marketplace, includin@ the implication that low ta~s are
"better* for the smoker,~-z2-'~" but later also insisted that t~e
ads did not make any health representations...'/ The
explanation of the *Easy on ~OUr mind. Easy on your taste" ads
437 .
4~8,
439 •
440 .
441.
(65005 1384; Ave. Depo. Exh. 7). Tab 244.
(65005 1385; Ave. Depo. Exh. 8). Tab 245. A variation of
this slogan was: "... True is not only easy on your mind,
it's gentle on your taste."
Ave Dep¢, at 142-43. Indeed the FTC stated that "True
advertising appears to equate the consequence of switching to
True with the beneficial consequences of 'quitting'." 1975
FTC Report, at 5. Tab 246.
Mau Depo. at 38-39.
Id. at I00-i01.
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a~e even wo=se. "Easy on your taste" is credibly explained as
referring to True's mildness,~ which comports with True's
brand image of s good taste in a low tar."-zQ-z Both Ave and
Mau, however, testified that "£asy on your mind" means that, by
settling on True, the smoker's mind need not be cluttered with
the ads for other low tars and therefore the smoker need look
no further for the right brand.''" Ave said that the ad had
nothing to do with the health issue."'~I
Gene Peck of Shook, Hardy has indicated that the True
marketing documents which have been produced, but which have
not been included in the 129, 770, Or aS deposition exhibits,
make reference to the health issue. Lorillard will therefore
probably have to eventually concede, as did Mau in moments of
candor, that True's target market consisted of smokers who had
decided to continue to smoke but were concerned about their
health."-'~/ Publicity suggested ~hat low tars were "safer"
and True ads exploited this information."''~
442 .
443.
444.
445.
446.
447.
Ave Depo. at 140-41.
Judge Depo. at 177.
Ave Depo. at 140-41; Mau at 102.
I~d. at 141.
Mau Depo. at 35-36, 105.
True was not alone. Vantage marketing documents indicate that
vantage addressed smokers' concerns about the "alleged health
hazards of high ta~."
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a. Charcoal Filter Ciqarettes
(i) Lar._._~k
The Lark charcoal filter was developed for Liggett by
the A~thur D, Little Company of Cambridge, Massachusetts. The
filter allegedly ~emoved certain gases from cigarette smoke.
Lark's advertising campaigns emphasized that removing the gases
made the taste smoother and milder. Liggett executives have
testified that this had in fact been the purpose of the
filter.-
However, a second "promotional" campaign was conducted
for Lark as well. Correspondence was sent to the Roswell Park
Memorial Institute,~ Readers Digest "--Lz~ and to
doctors,"~---~'~ which discussed the role of the charcoal filter
in reducing the inhiDitory effect of cigarette smoke on ciliary
activity. A 1964 letter from Dr. Darkis of Liggett to doctors
concluded: "Since some of your patients may have heard of this
filter through the lay press, and may inguire about its basis
448.
449.
450.
451 .
Bruff Depo. at 103; Dey Ci~ollon# Depo.. at 292.
(65009 0869; Provost Depo. Exh. 9). Ta~ 247.
Provost Depo. Exhs. I0 (65009 0871) (letter to
0874); 12 (~5009 0875) (responses from RD); 13 (second,
"rebuttal" letter to R__D). Tab 248.
(65009 0858; Provost Depo. Exh. 4); (65009 1314; Provost Depo.
Exh. 3B). Tab 249.
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in science, we believe you may wish to have this information at
hand.°'--LE~ Plaintiffs may seek to portray the above
correspondence as part of the "long range public relations
program for Lark, including the important medical aspects of
the program,.which has been submitted to [Liggett] by J. Walter
Thompson."'--tl" The promotion of Lark is discussed in the
Stric~ Liability/Design Defect section, at pp. ~, supra.
(ii) ~
Reynolds entered the charcoal filter market in 1964
with Tempo. Perhaps in reaction to the health claims being
made on behalf of Lark, Tempo's initial broadcast and print
media advertising contained an unusual disclaimer: "No health
claim is made for Tempo. Only the promise of easy draw,
smoother taste." The disclaimer was removed from ads in late
Ig64."-2-~, Recognizing that there would not be a great
454 .
Letter from Dan Provost to Dr. Charles J. Kensler (Apr. 8,
19~3) (65009 0856; Provost Depo. Exh. 3). The J. Walter
Thompson proposal itself is not included in either the 129,
770, or deposition exhibits. However, Lark ads of the era
cited a report to the American Medical Association, which
alleged that "Gas in Cigarette Smoke May Be A Bigger Problem
Than Tar And Nicotine .... " The Lark "Gas Trap Filter," of.,
course, was alleged to. solve that problem.
After Reynolds ceased using the disclaimer, American used it
in its ads ~or Carlton: "No health claim is made for
Carlton. Great light taste is Carlton's claim."
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consumer movement to charcoal filters, RJR withdrew advertising
support for Tempo in 1967; it was discontinued as a brand in
1974.
b. Low Gas Cigarettes
(i) Fac____~
Fact, Brown and Williamson's 1976 entry into the =low
gas" market, was the subject of discussion on the confidential
portion of the 1981FTC Staff Report.-- The Report noted
that, following Fact's initial success when introduced as a
cigarette with the ability to filter certain gases, B&W had the
Post-Keyes-Gardner agency devise a new campaign. A proposed
strategy to distinguish Fact from its competitors would place
emphasis on "More complete health protection through selective
gas filtration." The agency attributed Fact's initial failure
to the lack of public knowledge that gases might be harmful.
it recognized that its new strategy
would mean expanding the cigarette health
issue beyond tar to encompass gas. However,
this would require establishing "gas= as a
meaningful health hazard in cigarettes
because currently there is very low consume:
awareness or comprehension of the gas
problem .... However, if smokers are
effectively educated regarding this proDlem,
the selective gas filtration promise may
455. (T 000463-000466; Kornegay Depo. Ezh. I00).
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still be powerful, particularly among the
very health conscious.--
B&W found the implications of conceding the alleged ciliatoxic
and cardiovascular ill-effects of smoking to be
,appalling."~-/~-'" It chose instead to wait "[~]ntil the
problem of gas becomes public knowledge through government
investigation or media cowerage."'--L£~
Possible Industry Response
Industry executives have articulated the position that
their companies marketed low tar cigarettes in response to
consumer demand for them.°''z This consumer demand is
attributed to the overall trend toward lighter products,"'~z
as well as to a response to widespread publicity, much of it
456.
457.
458.
459.
1981 FTC Report at 2-22 (T 000464) (quoting Marketing
Advertising Strategy Recommendations for the Reintroduction of
Fact Cigarettes, April 18, 1977).
1981 FTC Report at 2-23 to 2-24 (T 000465-000466) (quoting
Memorandum from G. T. Reid to F. E. McKeown, March 22, 1978).
1981 FTC Report at 2-23 (T 000465) (quoting Fact 1977
Repositionlng and 1978 Marketing Plan Summary).
Dey Palmer Depo., at 133; Dey ~ipoll.one Depo., at 293; Spears
Depo. at 320-21; Hall Browner Depo., at 19; Judge Depo. at
531; Heimann Depo. at 276; Osdene Depo. at 203, 205.
460. Horrigan Dewey Depo. at 74; Forsythe Depo. at 121.
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generated by the government, that low tars are somehow "better"
for the health of the smoker."~---~"
True ads aside, there is abundant support for the
proposition that the primary impetus for the consumer movement
to low tar came from sources besides the tobacco companies.,
Much of this evidence is detailed in Calfee's 1985 Working
Paper prepared £o~ the PTC."~---t~" Three documents in the
production also Support this thesis:
~n a 1976 filmstrip announcement of its
"Target 5" Program, the American Cancer
Society took c~edit for the consumer
trend toward lower tar
cigarettes."-Li2-~'" Indeed, a 1968 AC5 -
distributed poster proclaimed: "The
Less Ta~ & Nicotine You Inhale The
Betterl"
In a 1973 speech to The Tobacco
Institute, TI President Horace Kornegay
quoted Senator Moss as stating that
advert~s~n9 ~h~ch a99ress~vel~ promotes
lo~er tar and nicotine c~aret~es ~s
462.
461. Spears Depo. at 320-21; Hall Brownest Depo., at 20-21; Horrigan
Dew~ Depo. at 7~; Mau Depo. at ~2-~5; Ave Depo. at 134-~6;
2~i; Judge Depo. at 21O; Cullman Depo. at 443; Forsythe Depo.
at 128.
Calfee, ~i~arette Advertising, Health Information and
Regulation Before 1970 (Working Paper No. 134), at 48-57 (Dec.
1985). Se__~e Tab ~27.
463. Filmstrip ~resentation "Target 5," c. 1976 (T 00203872). Tab
250.
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the public interest . , ." Kornegay
Ex. 63, at 4 (TI 004583).--'~°"
A 1966 letter from Earle Clements of TI
to Cullman cites legislation which had
been introduced in the Senate and which
would have required disclosure of the
tar and nicotine contents of cigarettes
in cigarette advertising. 'It also
quotes from a speech by the bill's
author, Sen. Magnuson, who said that
"it is now the firm judgment of the
Public Health Service that the lower
the tar and nicotine contents of
cigarette smoke the less the
hazard .... .,~s~
The FTC itself contributed to the public belief that
low tar cigarettes were somehow "less hazardous." In 1968, it
repo:ted "while recognizing that smoking any cigarette is
hazardous, the Surgeon General of the United States has clearly
indicated that some cigarettes may be less hazardous than
others."~-~-t-~ In ~gTO, it stated that "responsible medical
opinion indicates that the reduction of tac and nicotine
content in cigarette smoke decreases the hazard to the health
of that element of the population which persists in smoking
464 .
465.
466.
Internal Reynolds documents indicate that the company feared
governmental limitations on the tar level of cigarettes.
Reynolds sought to forestall such action by unilaterally
lowering the tar level of its brands.
Confidential letter from Earle C. Clements to Joseph F.
Cullman, December 8, 1966 (i002607274). Tab 25!.
1968 FTC Report, at 17. This was reiterated in the 1972 FTC
Report to Congress at 9. and in the 1973 FTC Report, at 5.
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cigarettes .... "'~-~J-'' In its 1977 Report, the FTC
c:iticize~ cigarette advertising for implying "that the lower
the 'tar' number, the less harmful the cigarette.'''''
In a
footnote, however, it noted:
This implication may be correct, as long as
the smoker does not smoke more cigarettes,
smoke further down on the cigarettes smoked,
inhale more deeply, or otherwise modify his
or her smoking behavior when switching to
the lower "tar" variety."'6'~
Finally, as late as the 1978 Report, issued in December 1979,
the FTC conceded that "there is evidence suggesting that
cigarettes wi~h lower 'tar' and nicotine content are less
hazardous .... "'-t//" and that "[t]hough no final assessment
can yet be made, the available scientific evidence suggests
that cigarettes with low 'tar' and nicotine are less
hazardous.-''~
A helpful means to defuse the low tar issue might ~e
to construct a chronology of public statements by government
and private health agencies concerning the desirability of low
467 .
468.
469.
470.
471.
1970 FTC Report, at 14.
1977 FTC Report, at 6.
I.~d. at 6 n.6.
1978 FTC Report, at 3.
I._~.d. at 6.
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tar cigarettes. Juxtaposed against these statement might be
the sales figures or share of market percentages for the major
low tar brands, such as True or Carlton. Hopefully, the chart
would show that sales increased in tempo with, or slightly
behind the drumbeat of low tar publicity.
5. Cognitive Dissonance
Plaintiffs" Contention
Simply stated, plaintiffs' position on cognitive
dissonance asserts that, due to the negative publicity about
smoking, smokers are conflicted about their smoking habit.
Because of this, they seek both to deny the negatives about
smoking and look for positive reinforcement of their decision
to continue to smoke. Such reinforcement has been provided by
the generic "open question" ads sponsored by TI, and the public
issues ads sponsored by RJR. Brand-specific advertising also
serves this function by depicting carefree, happy, healthy,
glamorous, and macho models engaged in athletic or social
activities in direct derogation of the negative information,
i.e.., the warning label, contained in each ad. The label
itself is intentionally positioned so as to draw minimal, if
any, attention. In any event, the warning label, especially
the 1970-1985 label, suffered from "wearout," while the ad
executions were constantly changing.
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Supporting Evidence and Documentation
Smokers as Conf!lcted
A nun~er of studies produced in Cipollone may be read
as supporting this aspect of plaintiffs' argument.
A 1972 analysis by Fred Panzer of TI of
a Roper opinion poll notes that only 13
percent of smokers are ~ersonally
concerned about smoking. (PM
0002907270). Panzer's recommendation
was: "The industry should try to
reinforce favorable attitudes among
groups which hold them rather than try
to convert those who are set against
An undated (probably mid-1960s) report
for TI conducted by Ted Bates & Company
concluded: "Because they are still
smoking, smokers are cgm~elled to feel
the government has nOt proved its
case. If they want to hear anything,
it is reassurance that smoking does no__~t
caus.____~e lung cancer -- not that there is
a difference of opinion."'-J-L"
A stud~ of public attitudes of the 1964
Surgeon Oene~al's Report. conducted for
Mill & Knowlton immediately after the
Report was issued, concluded:
"Although about one-half of all smokers
think they may change their smoking
habits in the near future, most
declarations of intent appear to be
stated with weak conviction."~-t/2-'',
472 .
473.
474 .
Memorandum from Fred Panzer to H. R. Kornegay, July 26, 1972
(I002907270). Tab 252.
Ted Sates & Company "Confidential Summary Report of 4 Group
Interview Sessions with Smokers," Undated (T 13370 at
(emphasis in report). Tab 25~.
(1005038380; Provost Depo. Exh. 32; CT Exh. 53).
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475 .
476.
477.
478.
The survey further indicated that the
Report had generated little change in
the level of ~ersonal concern about
smoking.
A 1967 letter from Rosser Reeves of
Tiderock to Eazle Clements of TI
commented upon the results of a
• telephone survey,undertaken by Ted
Bates: "Heavy smokers and the younger
groups of ~etter educated are a lot
less inclined to ac~e~t the Surgeon
~eneral's re~ort, although the great
majority a~e aware of it."''~" In
addition: "A very small percentage [of
those under 25] are aware of the health
warning -- the smallest being among the
heavy smokers."~'',
A i~65 survey conducted in Oregon for
TI prior to the inclusion of the first
package warning "conjectured" ~hat the
laDel "will make heavy smokers still
more defensive about their
preferences.-~-//''~
T~e confidential portion of the 1981
FTC $~aff Report critically quoted a
~town & will~amson re~tding s proposed
campaign for V~ceroy: "Thus, ~he
smokers have to face the fact that they
are i11ogical, irrational and
stupid . . . the saviours are the
rationalization and the repression that
end up and result in a
mechanism that, as many of the defense
mechanisms we use, h~s its own
Id. at 1005038382.
(RC 6009660; Bowling Depo. Exh.
I~d. at 6009661.
(65~09 0507:65009 2417; Harrington Depo. Exh. 19).
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its own rationale." The proposed
campaign would be designed to "reduce
objections" to the product in order to
permit smokers to repress their
concerns about smoking and rationalize
their smoking.'''" The public
version of the Report also commented
upon the lack of.personal relevance to
smokers of the adverse information
about smoking."'~
Mr. 8ruff of Liggett denied that it was an aim of
advertising to reduce smokers" guilt'''~ or to enhance the
social acceptability of smoking."-~LL~ Mr. Sorrigan also
denied that it was an aim of the company to make smoker5 feel
less guilty.'-LE!'~ rn fact, however, the 1982-ig86 Strategic
Plan for Reynolds indicates that "[t]he major unfulfilled want
of the smoking consumer will be positive support and
reinforcement." To meet this need, the Plan proposed "massive
advertising/communications efforts to support and encourage the
479. (T 00458-00461: Kornegay Depo. Zxh. i00; 6~009 1481-2483:
Bowling Depo. Exh. 57).
480.
1981 FTC Report at 4-15 to 4-16. It should be noted, as
regards all mention of the 1981 Staff Report, that the FTC
took no position on it. Se_~e 1980 FTC report, at 2-3 (purpose
of Staff Report was to "stimulate an open dialogue" concerning
the need for additional governmental or private action
concerning cigarette advertising).
481. Bruff Depo. at 97.
482. Id. at 255-17.
483. HorIigan Dewe_~v Depo. at 97.
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right to smoke." Advertising campaigns which portray people in
smoking-related situations would be designed to "heighten the
social acceptability of smoking while conveying the appropriate
brand imagery." The 1984-1958 Strategic Plan proposed a
campaign to enhance the self-image of the smoker, and the
1985-1977 Plan'''" spoke of opportune industry efforts to
enhance the social acceptability of smoking.
bo
Ads Renderina Warning Inadequate by Reassurin~
Smokers About Health Concerns
While the May 1981FTC Staff Report on the Ciqare.tte
Advertising Investigation is the ~rincipal document in support
of this aspect of the plaintiffs' cognitive dissonance
argument, certain documents in the production have criticized
the themes of cigarette advertising:
A September 1966 confidential report of
the Code Authority of the ~ational
Association of ~roa~¢~stezs~luestioned
whether a~s sho~l~ ~e~ict ~kers being
engaged in any athletic actiwity;
whether commercials ~ortraying people
smoking both in the ~orming and at
night are encouragements to smoke;
whether the mere use of the word
"filter" may be misleading; whether
cigarette ads make undue use of hero
images, popularity, natural
surroundings, catchy jingles, premiums,
romantic a~peals, and smoking on
camera, whether cigarette companies
should sponsor sporting events; and
4~4. Marketing documents for Vantage indicate that Vantage was
designed to make smokers ~eel less guilty about smoking.
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whether tobacco should be described as
mild or light.
The 1967 FTC Report to Congress
described
cigarette advertising as "a portrayal
Of the desirability o~ cigarette
.smoking and assurances of the relative
safety of smoking .... Thus,
cigarette smoking was depicted asbeing
satisfying in itself; associated with
desirable persons and pleasurable
activities; an~ carrying relatively
little risk.
The 1981 Staff Report, based largely upon a 1980 paper
prepared for the FTC,'''" relies upon an abstract versus
concrete information distinction to reach the conclusion tha~
cigarette advertising derogates the warning label. It claims
that people rely more on concrete t~a~ abstract informa:ion.
The language of the warning is deemed abstrac=; the "thematic
imagery" of cigarette ads iS concrete. Thus, "[i]ndividuals
seeing these cigarette a~s are muc~ more likely . . to use
the concrete positive images of smoking in deciding whether or
not to smoke than they are the abstract general warning."''---~'"
485.
4~6.
487.
488.
(RC 6007605-7614; Bruff Depo. Exh.
1967 FTC Report at 14-15 (Cullman Depo. Exh. 74).
Cohen & Srull, Information Processing Issues Involved in the
Communication and Retrieval of Cigarette warnlng Information
(Nov. 1980). TaD 254.
1981 FTC Report at 4-15.
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c. Positioning the Warning Label
In the deposition of Mr. Keim of Philip Morris, Marc
Edell led him through the sequence of the parts of an ad that
the eye observes."-/2-~'/ Among the last items observed is the
warning label. Mr. Keim indicated that he had been advised by
FM counsel to place the warning label at either the bottomleft
or the bottom right of the ad.''"" Mr. Merlo (PM) testified
that the warning label is already in the ad when it comes from
the advertising agency. It is usually located, however, in the
lower left or lower right hand corne~ of the
Finally, Ave of Lorillard indicated that ad agencies have wide
latitude in deciding where to place the label.~" In the
end, "aesthetics" dictate the positioning."-LLz"
Gene Peck ($H&B) has indicated that Lorillard has
produced eye-movement studies. They are not amom~ the
documents received to date. Reynolds has at least one occasion
utilized eye-movement studies. This has not been produced to
plaintiffs. The possibility exists that those documents may
Support this aspect of the plaintiffs' argument.
489. Keim Depo. at 76 et se~.
490. Id. at 76.
491. Merlo Depo. at 47.
492. Ave Depo. at 218-19.
493. I_~d. at 220.
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d. Label as worn-Out
The contention that the warning label is worn out is
drawn directly from the 1981FTC Staff Report. It argues, en
route to its endorsement of rotating warning labels, that the
repetition of the same warning label over a fifteen year period
had caused the label to become "overexposed." It concludes,
without empirical support, that the label is "no longer read or
noticed by most Americans exposed to cigarette
advertisin~ .... .,,.z
Possible Igdustry Response
STIC has assembled a stable of experts who will take
issue with the concept of cognitive dissonance as a valid
psychological premise. Advertising experts will testify
concerning the purpose"'-LL~" and effect of cigarette
advertising and express the view, based upon empirical studies,
that advertising plays almost no role in the decision to
smoke, with respect to the cognitive dissonance issue, it is
the warning label which derogates from the ad, not vice versa.
494. -1981FTC Report at 4-11.
495.
The industry may find an unlikely ally on the advertising
issue in Dr. E~nst L. Wynder. In a letter to the editor of
The New England Journal of Medicine, Wynder and Dr. Dietrich
Hoffman concede that "It]he main purpose of advertising
appears simply to pit one brand against the other." August 16,
1979 (T 000530). Tab 255.
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Finally, warnings experts will testify, based upon
FTC-co~issioned studies, that there is a virtually universal
and unprecedented degree of awa~eness of the alleged health
hazards of smoking. The 1970-1985 warning label was not "worn
out." If people did not read the label in each advertisement,
it is because they already knew the information contained in
it. People do not read red octagonal traffic signs either:
they already know that they say "STOP."
None of the social acceptability campaigns make health
claims oF deny any charges against cigarettes. The plaintiffs"
objection to "social" support for smokers is an extension of
the prohibition agreement. The tobacco companies are in th~
~usiness of selling cigarettes to smokers. The industry should
not be defensive about the social acceptability issues whe~he~
they are manifested in industry or brand activities.
~. A~o~eal$ to Youth
F1aintiffs' Contention
Plaintiffs contend the tobacco companies market
cigarettes to persons unde~ 18 who are incapable of
understanding the risk involved in cigarette smoking.''''
Supporting Evidence and Documentation
496. Se__e Speech by William Townsley, March 21, 1985. Tab B.
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Reynolds attests that it does not market to anyone
under iB years o~ age.'''" Representatives of other tobacco
companies have testified that their companies do not market to
those under 21.°''/ Moreover. Mr. Horrigan has testified
that Reynolds does not conduct ~esearch on those under
18.'''~ However, a number of documents which indicate an
occasional interest by Reynolds personnel in the under-18
market. In addition, a review of Reynolds account files at the
Batten, Barton, Durstine & Osborne advertising agency uncovered
a file folder of public reports concerning the smoking habits
o~ teenagers./-z~"
Two examples of such material were located in the
Ci~ollone production. In Philip Morris' files was a 1963
survey o~ teenage smoking habits.~/-L~" In TI's files were
497.
498.
501.
Horrigan ~ Depo. at 85: Orlowsky Barnes Depo. at 69.
Forsythe Depo. at 151: Dey Palmer Depo. at 55-56; Lougee Dep~,
at 411; Judge Depo. at 305.
Horrigan Dewey Depo. at 143-45,
Box No. C8343, summarized at BBD&0 Document Review at 13-14
(Jan. 9-I0, 1986), Tab 256.
"Teen-Age Cigarette Purchasing and Smoking Habits In The
U.S.A. 1963 An Independent Study by Gilbert Youth Research,"
1963 (i005040495). Tab 257. Merlo of PM also conceded that
PM had access to outside surveys of when people begin to
smoke. Merlo Depo. at 83.
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reports of two 1974 polls of teenage smoking.13-2-"
The most significant indication of an interest in
marketing to youth was contained in the confidential version of
the 1981 FTC Staff Report.!/-!~ It extensively quotes from a
1975 report prepared for Brown & Williamson by the Ted Bates
agency concerning a proposed campaign for Viceroy. The
document proposed that B&w: "Present the cigarette as one of a
few initiations into the adult world. Present the cigarette as
part of the illicit pleasure category of products and
activities .... In your ads create a situation taken from
the day-to-day life of the young smoker but in an elegant
manner have this situation touch on the basic sy~nbols of the
growing-up, maturity process. To the best of your ability
(considering some legal constraints) relate the cigarette to
"pot', wine, Beer. sez, etc."~-i" Forsythe of B&W was
questioned about these allegations duzing his deposition.
However, ~he events in question preceded his employment with
B&w and he could not com~ent upon them.-tL!"
502.
503.
504.
505.
Letter from Anne H. Duffin to Burns w. Roper, October 30, 1974
(T 0020986). Tab 258.
(TI 000457; Kornegay Depo. Exh. i00).
"
Report at 2-18 (TI 000460).
Forsythe Depo. at 99. No action was taken on this proposal.
An ad agency proposed it. It was not seriously considered and
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The 1967 FTC Report to Congress,~-~z" in addition to
its general criticisms of cigarette advertising, seized upon a
Lucky Strike campaign that it claimed complied with the letter,
but evaded the spirit, of the Advertising Code: "Lucky Strike
separates the men from the boys -- but not from the girls."
The report queried: "In which category -- with 'the men' or
with 'the boys' -- would any normal teenage male want to place
himself?"~z This same criticism of compliance with the
letter of the Code "while completely flying into the face of
the soiri_,.__~ of the code" was leveled by Congressman Charles O.
whitley of North Carolina in a 1979 letter to TI President
Horace Kornegay.s°'~ Citing an ad in TV Guide which featured
505. Footnote Continued F~om Previous Page
506.
507.
508.
was quickly rejected, rt certainly is ~ot evident that
cigarette any ads relate to pot, beer, o~ sex. Plaintiffs
should be put to their proo~ of demonstrating any ads fi~ this
strategy. The B&w incident was an isolated instance.
~esides, its' not a sin to think about sin; its' only a sin ~o
actually commit the sin. ~rown and Williamson won a libel
suit on this issue, so it appears the industry has nothing to
fear or hide with respect to this incident. It may well be
that rejection of this campaign demonstrates ultimate
corporate responsibility. The ad agency suggested a way to
increase sales, but B&W rejected it.
Cullman Depo. Exh, 74.
1967 FTC Re~ort at 27.
Letter from Charles O. Whitley to Horace R. Kornegay,
September 27, 1979 (T 003514). Tab 2~9.
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"a very youthful slender woman in a bathing suit smoking a
cigarette," Rep. Whitley noted that "it is extremely hard to
argue that there is not a strong and direct appeal to teenagers
in the type of advertising referred to." Although he recalled
that the ad was for Silva Thins, he might have been discussing
executions in the current "Light My Lucky." Newport, or Salem
Spirit campaigns.
Possible Industry Re~pqnse
This issue is so subjective and susceptible to
emotional appeals as to render it incapable of a reasoned,
articulate response. The industry may, of course, point to the
Advertising Code, but that will be unlikely to dissuade the
juror who is otherwise convinced that, for example, the "Salem
Spirit" ads are aimed at youth. In addition, although Reynolds
will vigorously resist the ~roduction of its marketing studies
as proprietary, it will at some point have to release some
documentation which highlights its almost obsessive interest in
the "18 to 21" year old market.
The best possible way to defuse this issue is to
rephrase it. Plaintiffs' issue is whether ads are aimed at
youth; defendants' issue is what causes teens to smoke.
Defendants are unlikely to prevail on plaintiffs' issues, and
vice versa. Consequently, defendants should recouch the issue
in their tezms. In this posture, the industry can produce a
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variety of STIC-generated expert witnesses who will testify,
based upon empirical studies, that advertising is among the
lea~t influential factors in teenage smoking. Parental or
sibling ezample and peer pressure are uniformly the most
significant. This data will almost certainly accord with the
jurors' own common sense or experience. The argument may then
be made that, if the jurors know this by thei~ common sense,
so, too, must the tobacco companies. Why, then, would they
waste money in appealing to teens?
The plaintiffs' addiction expert, Dr. Jaffe, states
the following:
There is general agreement that people
begin go smoke for one Or more of the
following reasons: curiosity; to conform to
the norms of a group to which they want to
beicng; to express rebellion; and to imitate
the behavio~ of people who appear to have
greate~ status, as in the case of young
people wishing to appear more grown
Notably absent is any mention of brand advertising. The
deposition outline of plaintiffs' addiction expert should
contain a section designed to gain explicit concessions that
brand advertising plays little or no role in the decision of
young people to begin smoking.
509. "Tobacco - the devil's weed" at 83 (Jaffe Depo. Exh. 21).
260.
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The industry should not be defensive about surveys of
teenage smoking habits. Nothing prohibits people who work for
tobacco companies from learning of the habits and pEeferences
of consumers, including minors. The instances of surveying are
not pervasive. In fact, they can be described as "isolated."
The discovery does not indicate that any specific marketing
action was based on these surveys. The best response as to
acknowledge whatever was done, but state no marketing action
was taken. Business planning decisions such as whether new
plants are needed might be based on projections of the numDers
cf smokers in the future.
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VI. ADDICTION/ABILITY TO QUIT
Plaintiffs" Contentions
The "addiction" issue is generally considered to be of
central imoortance in smoking and health litigation.
Plaintiffs are expected to contend that there is a subclass
among the 55 million smokers whose dependency is so great that
they are unable to guit.'/-L~t Plaintiffs are also expected to
argue that addic:ion, when combined with the "overpromotion"
cigarettes substantially impairs these smokers' ability to make
a free choice.
510.
511.
512 .
The Addiction/Ability to Quit section of this Report
should be read in connection with the relevant portions
of the "Addiction Witness Issues," "Summary of Addiction
Presentation," "Brief Outline of Key Points on Addiction"
and DSM-III. TaDs 176 and 177.
In public statements, plaintiffs have cited Surgeon
General Koop! an~ a JAMA article for the proposition that
the vast majority o~ smokers have tried to quit.
Plaintiffs' Response to Tobacco Industry Defenses, April
17, 1986. Tab 6.
Plaintiff's Answers to Defendants' Contention
Interrogatories in Cipollone, May 28, 1986. Tab 4.
Plaintiffs may also contend other factors contribute
to "impaired capacity." These include:
Avoidance of t6bacco withdrawal
syndrome;
The highly over,earned nature of the
habit that stems from the repeated
effects of nicotine which rapidly
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Plaintiffs have stated this contention specifically in
Cipo,~lone:
Mrs. Cipollone's dependency, combined with her
lack of understanding of the health consequences
of smoking due to the manner in which the
defendants markete~ and promoted their products,
caused her no___~t to quit smoking at a time when
illness and death could have been avoided.~-~-"
Rose Cipollone had a strong "need* for cigarettes
based on her psychological as well as
physiological dependency .... Rose Cipo!lone
never fully understood the health hazards Of
smoking. This lack of understanding combined
with her dependency prevented her ~rom stopping
smoking.~''/
Dr. Jaffe elaborated as follows:
Mrs. Cipollone gives a reasonably typical
history of a heavily dependent smoker who afte~
trying to stop but failing thereafter avoids
making serious efforts but temporizes by
switching to what she felt were safer
cigarettes. Even lung surgery did not stop her
entirely, but from time to time she had a puff or
512.
513.
514.
Footnote Continued From Previous Page
follow the inhalation of cigarette
smoke (75,000 puffs per year); and
The likelihood that a desire to use
tobacco is elicited by environmental
cues, such as ~he ubiquitous presence
of other Smoke:s and the widespread
availability of cigarettes.
DSM-III at 177. Tab 177.
Plaintiff's Answers to Defendants' Contention
Interrogatories in Cioollone, May 28, 1986. Tab 4.
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two on a cigarette. She experienced craving and
withdrawal. To the degree that dependence
reduces anyone's capacity to make rational
choices [or to make free and fully flesible
choices], Mrs. Cipollone had lost her capacity to
respond rationally [in a fully flexible and free
way] to the information on risks of smoking
provided by the government and other sources of
information.~-k~
a. Definition of Addiction
At a recent seminar on toxic to~t litigation, Alan
Oarnell devoted approximately half his outline to the topic of
addiction.~ A~though the outline acknowledges several
definitions, it appears that the New Jersey plaintiffs and
thei~ addiction expert will urge the definition of "tobacco
dependence" found in DSM-III.~'---!~
The DSM-III~'~'" definition is as follows:
a. Continuous use of tobacco for at least
one month with either an unsuccessful attempt to
stop or reduce the amount of tobacco use o~ a
permanent basis, or
515.
516.
517.
518.
Jaffe Depo. Exh. 21. Tab 197. The bracketed material in
the text reflects changes made during Dr. Jaffe's
deposition. Jaffe Depo. at ~iI-12.
A. Darnell, "Plaintiffs' Response to Tobacco Industry
Defenses," April 17, 1986. Tab ~.
Indeed, Dr. Jaffe prefers not to use the term
"addiction." He uses the terms "severe dependence" or
"compulsive use."
Diagnostic and Statistical Manual of Mental Disorders
(Third Edition). Se__e TaD 177. Dr. Jaffe was a mem/:er of
the Advisory Co~ittee on Substance Use Disorders which
drafted the Tobacco Dependence sections of DSM-III.
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b. Development of tobacco withdrawal, or
c. Presence of a serious disorder
[presumably lung cancer, emphysema, or
cardiovascular disease] that the individual knows
is exacerbated by tobacco use./-LI"
DSM-III also identifies eight symptoms of "Tobacco
Withdrawal."/2-z" If at least four of the symptoms are
present within 24 hours of cessation of tobacco use, tobacco
withdrawal is said to have occurred.!-LL~
Plaintiffs" addiction expert's testimony largely
coincided with DSM-III, and relied extensively on the arguably
interrelated physioactive effects of nicotine and presence of
related withdrawal syTnp~oms. With respect to the physioactive
effects, Dr. Jaffe testified in some detail about the effects
of nicotine on the body, including:
521.
DSM-III at 176.
These symptoms are:
i. craving for tobacco
2. irritability
3. anxiety
4. difficulty in concentrating
5. restlessness
6. headache
7. drowsiness
8. gastrointestinal disturbances
DSM-III at 159. Se__e Jaffee Depo. at 262-63.
Darnell has asked the industry witnesses if they are
aware that some of eight symptoms occur. Most of the
witnesses say they are not aware that the SyTnptoms occur.
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4.
5.
6.
7.
8.
9.
i0.
ii.
12.
14.
15.
16.
17.
lB.
19,
20.
21.
Multiple endocrine effects
Effects on specific receptors within the brain
which seem to be relevant to its biological
actions
Alerting effect on the EEG
Increased alertness
Increased blood pressure
Prolonged and profound constriction of blood
vessels
Acceleration of the heart
Stimulation of certain nerve receptors in the
adrenal glands producing a release of epinephrine
into the circulatory system
Stimulation of the gastrointestinal system
Rise in the cortisone level
Change in neuro hormones
Change in growth hormones
Release of diuretic hormone from the pituitary
gland
Change in patella reflex
Change in muscle tone
Increased concentration
Anti-anxiety agent
Reduces stress
Reduces anger
Relaxing
Euphoria
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22. Pleasure
23. Facilitation o~ memory
24. Decrease in appetite
25. Decrease in irritability/-LI~
Dr. Jaffe, loosely placed tobacco dependence as
evidenced by psychoactivity and withdrawal symptoms, on a
continuum which ranged from sugar which has no withdrawal
symptoms, to caffeine which has some withdrawal symptoms, to
nicotine and opiates which have more pronounced withdrawal
symptoms. Users of sugar and caffeine exhibit little o: no
craving. Although the craving for heroin is usually
than the cravin~ for nicotine, Dr. Jaffe has seen instances
where nicotine craving was greater.I//s
The most common way to determine if a smoker is
physically dependent upon tobacco is "to deprive the individual
of tobacco and see what happens."a-tz, DE. daffe was unable
522.
52.3.
524 ,
Jaffe Depo. at 160-61, 395-412, 445, 464-81, 550, 703-04,
71!.
Note that some of these responses support the benefit
side of the risk/benefit analysis. Similarly, many of
the physiological changes noted by Dr. Jaffe in the text
are supportive of the "health" claims made in old
cigarette advertising.
Jaffe Depo. at 126-28, 256-59, 286, 330, 397-410, 436-37,
480, 549.
Ld. at 269.
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to say definitively if deprivation of nicotine is the cause of
the withdrawal symptoms, but he suspected it was.szs~ Dr.
Jaffe stressed the obvious: dependence varies in severity,
from a mild kind of craving to an intense need or
compulsion.~J-~z Dr. Ja£fe identified a type o~ person who
was "tobacco dependent" but not physically dependent: a
seriously ill person in a hospital who sneaks cigarettes three
to five times a day. A clinician would "be within the bounds
of the concepts to diagnose tobacco dependency, even though
that individual was no longer physically dependent in a way
that would even be detectable."~--u~ Absence of withdrawal
syndrome indicates an absence of physical dependence or neuro
adaptation./J-~
b. Corporate Responsiveness: Addiction
The ~lain~if~s will also contend taat while the
Industry has known of credible evidence that cigarettes were
addictive, it failed to investigate the charges, and failed to
warn that cigarettes may be addictive. In order to negate the
525. I~d. at 253.
526. I.~. at I!i, 221 & 225.
527. [~. a~ 281-82.
528. Id. at 255, 2~3.
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duty to warn, it is incumbent upon the industry to prove
cigarettes are no__.~t addicitive.
Supporting Testimony and Documents
Given the importance of the "Ability to Quit" issue,
Plaintiffs have devoted relatively little discovery to
addiction. The plaintiffs have, however, established, first
that neither the companies individually, nor the industry
collectively have undertaken to determine whether or not
cigarettes are addictive, even though the industry was aware of
allegations of the addictive nature of cigarettes. Second,
they have gained damaging admissions from industry witnesses
and from industry documents that some persons (not among the 35
million smokers who have quit) have great difficulty in
quitting. These persons are long term heavy smokers who have
certain specific personality traits.
In Cipol~on~, Liggett (like PM and Lorrilard) stated
in its answers to interrogatories that it was aware of
scientific literature, as well as the 1964 Report to the
Surgeon General, on the subject of smoking and addiction.
Liggett contended, however, that it was unable to determine the
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exact date of its first awareness of addiction
allegations.~-I~"
Norhas Liggett conducted any research concerning
addiction. K.V. Dey stated that he does not know why people
smoke, has not seen any research on the subject, and does not
think Liggett has done any research on the issue./-Lz~ Mr.
Dey denied being awa:e that some people have difficulty
quitting.'~'"
b. Reynolds
Reynolds admitted in its answers to interrogatories in
Barnes, Berko, and Haines that "Reynolds is aware of articles
discussing ciga:ette smoking and addiction."!-zlz Reynolds
also stated, "Indeed, claims that cigarette smoking may be
haDit-forming or addictive have been widely known for
centuries -- long before Reynolds was incorporated in
1899."~=t!z The answers also cite the 1964 Report to the
Surgeon General for the ~roposition that cigarette smoking is
not addictive. In Haines, Reynolds added, "No study has been
529.
530.
531.
532.
533.
Se__~e Liggett Answers to Dewey Interrogatories.
Dey DepO. at 257, 260.
Id. at 260.
E.~., RJRT Answers to Haine~s Interrogatories.
Tab 183.
Tab 182,
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conducted since (the 1964 Report] to warrant a change in that
conclusion."~I-~" In Dewey, Reynolds acknowledged that
cigarette smoking may become a habit,j-L~"
Although the plaintiffs have not vigorously pursued
the deponents' definition of addiction,~-~-~ Edward Horrigan
defined addiction to mean a total dependence and almost total
inability to do without or to give it up. Since 30 million
people have quit voluntarily, Horrigan concluded cigarettes are
not addictive.~''~ He admitted that some smokers are
"attached" to cigarettes.~-L~" Mr. Horrigan also testified
that Reynolds does not "have any position" with regard to
whether any segment of the smoking population has difficulty
qui~ting. Mr. Horrigan also testified that he has "never been
involved in a discussion" on the subject of whether smokers are
"unable to give up the habit at least during some decades of
their lives."z-Lz" G. Robert DiMarco stated in Browner that
534 •
535.
536.
537 .
538.
53g.
RJRT Answers to ~ Interrogatories, Tab 183.
Larry Hall testified in Ro~sdon that he does not know the
scientific definition of addiction, but cigarettes do not
fit his personal definition. Mall Roysdon Depo. at
38-39,
Horrigan ~ Depo. at 162.
Id. at 165-66.
~__d. at 160.
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Reynolds does not accumulate data related to addiction because
"we don't believe there is addiction," but if there were a
concern Reynolds would rely on CTR./-~-z/ Although he is aware
of allegations that the use of tobacco is addictive,"~-~-z
DiMarco ~id not know if CTR has ever funded pertinent research.
Documents produced by Reynolds reflect that relatively
little attention was given to addiction literature. Thus,
although Dr. Piehl stated in 1979 that he brought to bear on
the subject of smoking behavior "i0 years of reading and
reviewing the most relevant literature in this field,
two RJRT documents indicate that Reynolds had not intensively
studied the addiction literature as late as 1979.~-~I)-z In
one, Dr. Piehl identified the need for a "behavioral scientist
to review, evaluate and coordinate information in the smoking
540. DiMarco Browne[ Depo. at __.
541. DiMarco also stated:
542 .
543 .
"If you define a dru9 as a material which is
physiologically active, yes, [nicotine] is a drug,"
DiMarco Roys@on Depo. at
"Smoking Behavior--A Review," D. H, Piehl, September 1979
(50290 9651). Tab 188.
Position Paper Behavioral Aspects of Smokinq, D. H.
Piehl, c. 1978 (500~9 20~4), Ta~ 185; Memorandum
"Siqnificant Smokinq Behavior P~ublication,° from D, H.
Piehl to Alan Rodgman, February 15, 1979 (500a9 1994).
Tab 186.
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: !
behavior area."~''~ The other document, an undated (c. 1978)
*Position Paper',/-L!" similarly stated: "A comprehensive
literature review [of smoking behavior including the steps
involved in quitting] was not conducted as complete
understanding requires a competent behavioral scientist.
The
field is complex and controversial and we are basically
ignorant and dependent on outside evaluation. This issue is
based only on general awareness of the literature over the last
5 years, our competitor's activity and personal judgment."''~
Despite the foregoing, some Reynolds documents concede
that cigarettes may be extremely difficult t¢ quit. A 1969
544. Id.
545 .
RJR Secret Position Paper "Mission Statement for
Behavioral Aspects of Smoking," c. 1978 (50089 2080).
Reynolds' documents rarely use the word "addiction."
"Why People Smoke" or "SatLsfaction" are arguably code
words which encompass the broad concept of addiction.
Tab 187.
546. Id. This "Position Paper" also states that PM has been
studying various behavioral aspects of smoking for the
last 15 years with its own professional staff headed by a
research psychologist, Dr. William Dunn. Dr. Dunn will
likely surface as a deponent. He is the editor of ~
book, Smoking Behavior: Motives and Incentives based on
a 1972 conference sponsored by CTR. Se__~e Behavioral
Aspects of Smoking. Tab 185. Dr. Piehl characterized
this book as "the best effort to that time of an
outstanding group of life, behavioral and social
scientists to answer the question, 'What are the
motivational mechanisms sustaining cigarette smoking
behavior?'' Thus, the plaintiffs may use this memo to
impute the conclusions of Dr. Dunn's book to RJRT.
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memorandum to R, A. Blevins from T. P. Hailer contains a number
of damaging admissions:
a. "Habituation is . . . a very
compelling phenomenon and the potential
threat of cigarette deprivation is a serious
matter to many smokers."
b. =[P]eople, once o~er the initial
noveity of starting, smoke in oEder to
regulate their feelings."
c. "The most persistent pre-condition
for the establishment of the smoking
practice in an individual is a high
degree of . stress . . ."
d. "[O]n!y those who smoke for purely
physical reasons (taste, etc.), or those who
find an alternative outlet for emotional
release can be successful quitters. The
best information to date suggest [sic] that
less than one-third of the people who make a
serious effort to stop smoking are
successful for any significant period of
time."
e. "The partial failure of drugs
confirms that smoking is not simply a
phFsiological need, but a deep-rooted
psychological one,"
The memorandum describes in some detail the psychological
profiles of the "man who cannot quit" and the "woman who cannot
quit."~/-L!, The 1979 memorandum in which Dr. Piehl identified
the need for a behavioral scientist, also contains the
following damaging admissions:
547.
Memorandum from T. P. Haller to R. A. 81evins. Jr.,
"Important Psychological And Pharmacological Aspects Of
Cigarette Smoking," June 4, 1969 (50479 0813). Tab 189.
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a. *Personality may determine a
predisposition to start and stop smoking."
b. "Smoking is a strong habit, easy
to start but hard to stop."
c. "Serious smokers smoke to prevent
withdrawal symptoms."Its-''/
These statements support plaintiffs' contention that a subclass
of smokers exists which has great difficulty in quitting./-Lz"
In 1979, Dr. Piehl also reported that two independent
researchers had found six distinctive patterns of motivation
for smoking. As a convenience for plaintiffs' attorneys, Dr.
Piehl included a chart summarizing the six types of smokers
which could be displayed to the jury. The fifth group is:
Addictive - People who find it unbearable to run
out [of] c~garettes are described as using
addictive-type smoking.
A sixth category accounted for 15% of the 60 million
smokers. "They tend to smoke hesvily, to have a manual
occupation, to have £rien~s who smoke, and find it very
d~fficult to s~op smoking."~ui-~/
548.
549.
550.
Dr. Piehl noted on another occasion that the conference
sponsored by BAT in 1978 concluded "Serious smokers smoke
to prevent withdrawal symptoms." Se__~e Tab 186.
Dr. Blau is on record before Congress as stating, "Some
who smoke seem unable to give up the cigarette habit, at
least during certain decades of thei: lives." Se.__~e
Morrigan Depo. Exh. 9. Tab 190.
D. H. Piehl, "Smoking Behavior - A Review," September
1979 ( ). Tab 196.
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According to D~. Piehl's memo, a 40-50 percent
"abstinence" ~ate at the end of two years is the best
abstinence rate obtained by cessation clinics, which is up from
a 25-30 percent abstinence rate that has usually been the norm,
regardless of the. a~proach of the cessation clinics.
Cessation was viewed a matter of concern and of
challenge. The "Position Paper" referred to above suggests
that marketing concerns (avoiding a reduction in the number of
smokers) was a major concern with respect to the addiction
issue:
For the first time progress in the area of
smoking modification research presents a
potential serious threat to the future of RJR
Tobacco. Implementation of a successful smoking
cessation program could significantly reduce the
number of smokers.
Although motives and incentives for smoking are
very complex, increased understanding can be both
an opportunity and a threat to the future of RJR
Toba,cco. A breakthrough in behavioral
scientists' unde~standin~ could be used to
develop proqrams to severely limit the number of
new smokers .... To meet the R~D and
Marketing needs of the business in the 1980'5 we
must have a better understanding of
smoker.~ ~ '/
Prior to 1980. very little research was conducted or
funded by RJRT to evaluate the possibility that cigarettes
possess habituating or addicting ~roperties. Mr. Horri~an
551. See Tab 185.
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admitted that Reynolds has the research capability to measure
nicotine and how it affects the body and has studied the
effects of nicotine.2-Lt" He said he was unaware of any RJRT
research "to determine why those' people who miss it do miss
Internaldocuments describing the effects of nicotine
are also problematic. Plaintiffs have selected at least one
Reynolds" document,~-L~" and will probably obtain a plethora
of them from various sources, concerning the physiological
effects of nicotine on the human body. The typical language
contained in these documents is highi~ technical and sounds
"worse" than it really
552.
553.
SS4.
555.
Horrigan ~ Pepo. at 166, 168-69.
I__d. a~
Memorandum "Nicotine Research," from W. M. Henley to
D. H. Piehl, NowemDer 9, 1976 (50053 6141). TaD
For e%ample:
Nicotine interacts with cholinoceptive receptors at
neural junction and thus initiates normal impulses.
Those functions of the body which are normally under
neural control by a steady-state normal rate of nerve
impulses will thus be increased when nicotine reacts with
these cholinoceptive nerve junctions. A nerve impulse is
normally transmitted across a neural junction by the
chemical acetylcholine. Nicotine is able to very
effectively imitate the action of acetylcholine.
Nicotine thus augments the stimulation of those tissues
which have cholinoceptive receptors.
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More generally, Dr. DiMarco a~mitted that nicotine is
a drug--one which is physiologically active./-rE/ At ~east
two RJRT documents compare opiates and nicotine and find that
they are "quite similar,"~''"
Other internal RJRT documents authored by Claude
Teague discuss nicotine as the single constituent in cigarette
555. Footnote Continued From Previous Page
The body functions which are controlled by cholinergic
nerves are mostly parts of the autonomic nerve system.
Included in these functions are the qas~rointes~inal
tract (s~omach, intestinal muscle contractions), heart
rate control, peripheral blood vessel constriction and
skeletal (postural) muscle control. The influence of
nicotine on these functions leads to the following
symGtoms:
1. Elevated heart rate
2. Elevated coronary ~low
Elevate~ blood sugar level
4. Lowered cutaneous temperature at extremities
5. Increased blood flow in skeletal muscles
6. Reactive release of adrenalin
7. Alteration of brain electrical potential
pattern
8. Inhibition of patellar reflex
Memorandum, "Nicotine Research," November 9, 1976.
203. These symptoms are confirmed by plaintiffs'
addiction expert, Dr. Jaffe.
Tab
See note 323, su~a.
Research Dealing with Nicotine and Erkephalins, from
T. A. Perfetti to D. J. Piehl, January 5, 1981 (50298
1328). TaD 206; Research Proposal, from T. A. Perfetti
to D. J. Pieh!, February 17, 1978 ( ), Tab 207.
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smoke that is responsible for its habit-forming effects and
urge the company to exploit these effects commercially. For
instance, in a 1972 memorandum D~. Teague wrote, "[n]icotine is
known to be a habit-forming alkaloid, hence the confirmed user
of tobacco products is primarily seeking the physiological
"satisfaction' derived from nicotine." The memorandum
continues, "our industry is then based upon design, manufacture
and sale of attractive dosage forms of nicotine." In fact, Dr.
Teague referred to nicotine as the sine u~ non of the tobacco
products and as the "physiological habituation factor." He
believes because nicotine is "both habituating and unique in
its variety of physiological actions," that "no other active
material or combination" can provide "equivalent
satisfaction." Therefore, products designed for the habituated
smoker should "emphasize nicotine, nicotine delivery
efficiency, nicotine satisfaction, and the like.°I-Lz~
One further document deserves mention. In 1976,
Reynolds considered advertising for reintroduction of the
defunct charcoal-filtered Tempo cigarette which opened with the
following proposed co~y:
If you've switched to low "tar' cigarettes only
to find that you are smoking more than ever to
get the full satisfaction of your ~revious higher
'tar' brand, Tempo is for you. Tempo is lower in
558. Id. at 33-34 (footnotes omitted).
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'tar' than 98~ of all brands sold. But unlike
any other low 'tar' cigarette, Tempo contains the
unique Carbon-12 System...that actually
opitimizes nicotine satisfaction.~-L~"
Unless Reynolds specifically repudiated this campaign at the
time it was proposed, the ad contains admissions related to the
ability to quit issue. It recognizes that smokers compensate
to maintain a certain level of nicotine. Compensation is an
indication of tolerance which is, in turn, an indication of
addiction.
Whether or not Reynolds ran the a~, the documents
indicate Reynolds developed a method of reducing tar but
maintaining nicotine levels. "Carbon-12 System" folds nicely
into Claude Teague's strategy to develop a method of maaimizing
nicotine delivery. Thus it appears Reynolds accepted Dr.
Teague's thesis, at least to the extent of developing a
marketable method of maximizing nicotine delivery and
developing an advertising campaign to support it.
At least one Barnes selected Reynolds" document
indicates major compensation for reduced nicotine occurs above
certain levels.
559.
560.
Advertising copy from Latham Laird & Kudner, Inc.,
July 6, 1976 (50099 6135 to 6140). Tab 208.
Memorandum "Topline Summary: FFLT Nicotine-Satisfaction
$~udy," from C. L. Newmann to D. H. Piehl and R. A.
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• I
c. Philip Morris
Joseph Cullman (PM) stated in his deposition that he
was aware that "a lot of people haven't been able to stop
smoking." He testified he did not know the reason they were
unable to stop,~/e-u, and denied awareness of any
industry-~unded studies to determine why people can't stop
smoking.'~/ Plaintiffs then presented two documents to Mr.
Cullman. In 1968, Dr. Maurice 5eevers0 Chairman of the AMA's
Committee for Research on Tobacco and Health, reported to
executives and general counsel of the tobacco companies that
"smoking is a partly psychological and partly pharmacological
drive."'/-~-z~ Dr. Seevers also reported: "Increases in heart
rate and blood pressure suggest that one of the drives to smoke
may be a blood pressure too low to be comfortable."s~'/ Th~
560,
561.
562.
563.
564 .
Footnote Continued From Previous Page
Lloyd, March 23, 1981 (50051 0780). (Dr. Rodgman is
copied). Tab 200. See also Report "Pharmacologic
Factors Related To The Influence Of Smoking And Nicotine
On Behavior," from ADL to Reynolds, September, 1981
(50326 0514). Tab 201.
Cullman Depo. at 239.
Cullman Depo. at 239-40.
Meeting of the Committee for Research on Tobacco and
Health, January 30, 1968. Se__.~e Tab 163.
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other document is a consumer letter, typical of hundreds which
no doubt exist in industry files, which states the consumer is
unable to stop smoking,~-~!z
Dr. Dunn, PM's research psychologist, has publicly
stated cigarette smoking is a "difficult habit to
discontinue."~ Dr. Dunn also edited a book entitled
Smoking Behavior Motives and Incentives based on a 1972
conference sponsored by CTR. This has not been reviewed.
d. Lorril~rd
Dr. Spears, Lorillard's research director, was
questioned at length about addiction. Dr. Spears stated that
in some people, psychological and emotional problems are
factors in the ease or difficulty in. giving up smoking.
Although these factors have been k~own since the 1960's,
Lorri!ard has never advised people who had these types of
problems that it would be difficult for them to stop
smoking./-~-zl Dr. Spears was aware of a series of NIDA
565.
566.
567.
Letter from George M. Boosalis to the Tobacco Institute,
January 23, 1970. Tab 195. Some products liability
cases hold that complaints from consumers may be enough
to trigger a duty to warn. See, e.g., Feldman v. Lederle
Laboratories, 479 A.2d 374, 387 (N.J. 1984). Tab 184.
Article, Arkansas Gazette, "Jury Still Out on Smoking
Psychologist Says," June 16, 1976. TaD 191.
Spears Depo. at 327-29.
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monographs suggesting that cigarette smoking is addictive.
Furthermore, Dr. Spears is unaware of any papers stating that
cigarettes are not addictive ~''~
• ~ Because the total process
Of addiction, pharmacology and biochemistr7 is not understood,
addictive.
.Despite
no one can prove that smoking is no__~t • - J_~.z-
the acknowledgment of the possibility of the addictive nature
of cigarettes, Dr. Spears has neve~ conducted any investigation
to ~ind out ~hy people have difficulty in stopping
smoking .~
Curtis Judge acknowledged that some people have
di~iculty stoppint and some do not, but Lorillard has neve~
done any research to ascertain why that is so. He does not
know why Lorillard has not conducted addiction research.~
Mr. Judge said he does not ~ow i~ people develop psychological
dependency on cigarettes. He has thought about it, but has
drawn no conclu~zon. Be has not done ~nything to
ascertain whether cigarettes smoking results in
568.
569.
570.
571.
572.
Spears Depo. at 339-40.
Spears Depo. at 339-44.
Spears Depo. at 342-44.
Judge Depo. at 618.
Judge Depo. at 619.
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dependency,d~-z" Ms. Judge does not know i~ people who smoke
ul~ra-lo~ tar cigarettes tend to smoke more than they had
previously. He has done no studies and is aware of none.~I-L~"
e. American
Sometime around 1960, American sponsored and published
"A Review of Recent Biologic Research on Tobacco and Its Use"
~hich, among other things, concluded that "with some
individuals, nicotine becomes a major factor in theiz cigarette
habit."''~" American, howevet, has not conducted any
resea:ch on the physiological effects of nicotine."uz~/ It
did, however, fund resea:cb on the pharmacologic
cha~acte:istics of the ingredients of tobacco, such as
nicotine, at the Medical College of Virginia.-t~-l~
f. TIRC/CTR
S~udies funded by TIRC in the Fifties Support
plaintiffs' con~en~ion ~ha~ personality o~ "constitutional"
difference~ accoun~ for the ina~li~y of some persons to qui~.
573 .
574,
575.
576 .
577.
Judge Depo. at 625.
Judge Depo. at 628.
"A Review of Recen~ Biologic Research on Tobacco and Its
Use,= sponsoreO and supported by The American Tobacco
Company, undated (50281 3582-3643). Tab 204.
Heimann ~ Depo. II at @i.
Heimann ~ Dept. I at 130.
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In a section entitled "Who Can 5top Smoking?', TIRe-funded
researchers found the following:
As every habitual smoker knows to his sorrow,
ability to quit or cut down decreases as smoking
increases .... The sheer amount of tobacco so
far consumed is by far the largest difference
between the group of men who can stop and the
group who, at.least so far, cannot.
Whether a man can alter his smoking habits seems
to be most "deeply" determined. Efforts to quit
or cut down seem to be normal, since smoking is
quite widely seen as a "small vice," even by
smokers. Whether a man can succeed in these
efforts is first of all a function of how much
tobacco he has consumed in his lifetime. Certain
personality variables are also relevant. In
general, it is the needs that lead to heavy
smoking after the habit has begun that also
militate against quitting or cutting down. The
social variables that were related to starting to
smoke play little role in inability to quit. The
effects of oral gratification at the breast may
be relevant to control excessive smoking, once a
great deal of tobacco has been consumed.~-Lz"
In 1960, a researcher repotted at a conference
sponsored in part by TIRC that nicotine causes ~he release in
the brain of norepinephrine which accounts for the increased
578.
"The Psychology of Smoking," 56 J. Abn. & 5oc. Psych.,
267, 272, 274-75, March 1958 (CTR 1455; 65008 1042). Tab
192. The differences in personality types between heavy
smokers, moderate and non-smokers which may lead to
inability to quit are outlined in another published study
which was funded by TIRC. Health AMA Archives of
Internal Medicine, "Differences Between Smokers and
Non-Smokers," February 1958 (CTR 1433; 65008 i030). Tab
193.
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feeling of cheerfulness and a sense o~ relief from fatigue
experienced by smokers. He also noted nicotine could aggravate
heart rhythm ~rregula~ty.I/~
g. Tobacco Institute
In a very recent article, Tobacco Institute personnel
commented on the "addiction" issue. Walker Merryman, a T.I.
Vice President, was quoted as follows:s'---z~
"Sure, I think smoking might cause cancer," he
shrugs, glancing briefly at the cigarette burning in
his hand. "Nobody here is arguing that smoking is
~ood for you. And I don't know if it's an addiction,
o~ a habit -- maybe it depends on the individual.
But, so what? People are aware of the dangers. Most
smokers are born risk-takers. They probably don't use
their seat belts either, but that doesn't make us
suicidal or crazy. Zt's a matter of choice. I used
to drink too much, but I chose to give that up.
I do
not choose to give up cigarettes. Smoking is a
pleasure to me. And that's the point. People should
be allowed to make their own personal decisions, not
be ordered around by a bunch of little ayatollahs on
the march."
More proble~kically, Jack Kelly, T.I. Regional Vice
President in Sacramento, confessed to being a nicotine
fiend. '/-t~/
"Hell, yeah. I don't doubt that I'm addicted, I
have no problem with the term," he declared, as he set
579.
580.
581,
Newspaper articles, March 25, 1960 (50050 6573 & 6574).
Tab 205.
"Where There's Smoke," Los Anneles Times Maqazine II, at
p. 14 (Aug. 24, 1986) (emphasis original).
Id. at 2~ (emphasis in original).
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in his office across from the state capital, puffing
away at his Benson ~ Hedges.
"All I know is. I'd hate like hell to have to
ever t~ quitting. It'd be damned hard. What would
do with my hand__s? What would I substitute? Smoking's
been a continuous part of my life!"
It is not clear what triggered either of these
comments, or why they appear to abandon traditional dogma.~-t-~
Tobacco Working Group
The Tobacco Working Group of the NIH (less hazardous
cigarette project) identified "at least two distinguishable
grOUpS of dependen=s." The Tobacco Working Group further
stated:
In one group psycho-social factors appear to be
predominant, stopping smoking is relatively easy
and withdrawal symptoms are slight or absent. In
the other the dependence is harder to break and
withdrawal symptoms may be severe but are
inadequately describe~. It appears that i~ this
group the dependence ~y have a pharmacological
element.AJ-~"
582.
583 .
The traditional dogma was recently echoed by T!'s Scott
Staph:
You got a really tough selling job to say
those people were addicted when they can just
walk away from it.
"Nicotine Hooks You. Just Like Heron," U,S.A. Today at p.
I-D (June 20, 1986). Tab 199.
"Group i -- Addiction, Habituation, Pharmacology of
Tobacco, Recommendations: Chairman C. M. Fletcher,
C.B.E., M.D,," (PM i002609875), TaD 194.
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Possible Industry Responses
The longstanding industry position has been that
cigarette smoking is not addictive.~''" That proposition is
subject to increasing scientific criticism and lay skepticism.
Undue emphasis on it also creates a tisk of losing focus on the
ha[rower issue of impaired capaci'ty in a subset of smokers.
In
addressing this narrower issue, the defense should avoid
referring to both "addiction" and "impaired capacity," The
defense should refer to it as the "Ability to Quit" issue.
Indeed, jury research indicates that jurors resent and
disbelieve defense testimony that smokin~ is not addictive,
while they are receptive to evidence that plaintiffs can
a. Definition of Addiction
Although the focus must remain on the "Ability to
Quit" issue, the defense must ~ ¢o~¢ede ~hat cigarette
smoking has been proved to be addictive. Indeed. there are
584 .
The industry position is presented in an undated
document, "The Question of Addiction," prepared by Shock,
Hardy & Bacon. Tab 179. $o~e copies do not bear the
name of Shook, Hardy & Bacon and may be produced in
Barnes. Tab 180. Dr. Colby endorsed this paper.
Inter-Office Memorandum from F. G. Colby to J. R.
Peterson, January 19, 1978 (50327 5002). Tab 181.
Se._.~e Tab 176: Report on Galbraith Trial, Jan. 28, 1985, at
p. 17; Smoking and Health Litigation Tactical Proposals,
August I0, 1985, at p. 46.
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substantial benefits to be derived over waging a definitional
battle. Among those are the following:
• By relying on a definition contemporary to pEa-January
i, 1966, we will be able to minimize failure to warn
claims.
• By pointing out the definitional "evolution," we will
be able to rely on numerous helpful references in the
antismoking literture.
• By identifying scientifically acceptable alternatives
to DSM-III, we preserve the credibility of the
industry's position.
• By identifying a multiplicity of definitions, we may
blunt some industry documents which refer to addiction
or dependence.
• By advocating a rigorous definition, we specify a
better battleground fo~ cross-examination.
A key definition of "addiction" is found in the 1964
Report to the Surgeon General. There the Advisory Committee
employed scientifically rigorous definitions and concluded that
cigarette smoking is an "habituation to distinguish it clearly
from addiction." The definitions of these terms were:
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Dru[ Addiction
or chronic intozic~lion
the ~st~ ¢oesum~ien of a dru~
.natoral or D'n~etic,. I~ charac.
teri~i~ include:
1 ~ An overpo~erinf
(compulsion ~ to ¢omin~ tak.
ie~ ~e d~ end
2 ~ .~ I¢~c
3) A ~yehie (~eh~e~eal~ and
4~ 1X.trim~ntal e~',.'t on the iadi.
vidual aad on ~iety.
Dru~ Flab,tu ati-.".
Dru~ h~b,ua,~..n .hal'&. i* •
dm,~n r~uhine Dora the
de, ire th~ not • cempul,,,.n,
|o contiau¢ takin[ the
for the sex~ of improved ~'ell.
LiRI¢ or n~ t~dencx" to
~me de~ of psychic
but ~e of phy~cai
~in~
~fily oa ~ individual.
Throughout the 1960s, cigarette smoking ~as no...._~
considered to be addictive by 9overnmental authorities. For
ezample, former Surgeon General William H. Stewart noted in a
"major address" in June 1966:
awareness of the health hazards of snmking now
than ever before, and that a majority of
Americans wan~ somethin~ done about it. Bu~ we
cannot assume that the momentum of action now
underway will carry us to an early solution.
There is a wide 9aP between public awareness
of the health hazards of smoking and the
individual decision to do something about it.
Dr. Moore knows this as well as anyone. T~___~e
frust,ratin~ part of ~ettinq people to quit,
accordinq to those who have studied the dynamics
of the chanqe process, is that most smokers are
competen~ to ~uit by t~emselvest w.~thout any hglp
at all. But t~ey must have t~e will to do
The fact is ciqarette smoking, is a habit too
deeply inqrained to be broken easily. And the
bask is made no easier Dy the continuin~ pressure
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of cigarette advertising and by skeptics who seek
to discredit the medical evidence or confuse the
relationship between cigarettes and disease and
disability.~''~
Dr. Stewart's views are fully consistent with those
contained in the 1964 Report. Indeed, in 19B~ Dr. Stewart
ratified the conclusions set forth in that Report:/~-~"
5. There has been comment to the effect
that cigarette smoking iS "physiologically
addictive." Do you agree or disagree with this?
We would disagree with the contention that
cigarette smoking is "physiologically
addictive." The position of the Public Health
Service on this matter is stated in the 1964
report of the Surgeon General's Advisory
Committee on Smoking and Health. The Report says
(page 354):
The tobacco habit should be characterized as
an habituation rather than as addiction, in
conformity with accepted world Health
Organization definitions, since once
established there Is little tendency to
increase the dose; psychic but not physical
dependence is developed; and the detrimental
effects are primarily on the individual
rather than society, llo characteristic
abstinence syndrome ~s developed upon
withdrawal.
586.
587.
Address by w. H. Stewart, M.D,, June 14, 1966, Buffalo,
New York (1003042335) (emphasis added). Tab 198.
Letter from W. M. Stewart, M.D., Surgeon General,
reprinted i~ Hearings on H.R. 643 etc. before the
Committee on Interstate and Foreign Commerce, United
5tares House of Representatives, 91st Cong., ist Sess. at
p. 182 (1969) (Serial No. 91-10).
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References to cigarette smoking as a "habit" also appear in
other governmental reports, including the FTC'S 1967 annual
report to Congress.~''~
The "addiction" label has also been rejected by a
variety of antismoking organizations and individuals./-rz/
For example, in 1976 Dr. Daniel Horn employed "personal-choice"
language to describe smoking:~-LL~/
Cigarette smoking represents one of the problems
which can be called personal-choice health
behavio=.
[W]e must learn to accept the fact . . . many
thoughtful people will still make choices that
they perceive as being in their own self-interest
even though we deplore the choice.
The retreat from habituation to addiction seems to
have been instigated by zealots like John Banzhaf, and gained
590.
1967 FTC Report to Congress at pp. 8, 24.
Evidently Dr. Wynder has been quoted as stating that
cigarette smoking is not addictive. A reference is not
available. Similarly, in a 1976 pamphlet submitted to
Congress, a Yankelovich study prepared for the American
Cancer Society state~; =Smoking is not addictive -- but
there are other fa= more powerful reasons for not
smoking." "Summary of Findings," Yankelovich, Skelly and
White, Inc. (Feb. 1976), reprinted in Hearings on S.2902
before the Subcommittee on Health of the Committee on
Labor and ~blic Welfare, United States Senate, 94th
Cong., 2d Sess. (~976).
D. Horn, "Why People Smoke," Dec. 1975 (50029 2301). Tab
202.
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considerable momentum during Secretary Joseph Califano's 1978
war on smokinq.LLL~ Before a House Subcommittee, Secretary
Califano declared that "It is extremely difficult to quit
because smoking can often be addictive." He pledged that HEW
would continue to study "the addictive properties of nicotine
as well as the efficacy of various smoking cessation
SuBsequent comments and reports by the Surgeons
General have e~ployed the term addiction to describe cigarette
smoking. Indeed, it seems to have become a permanent part of
Surgeon General Koop's vocabulary -- quite likely due to an
effoE~ on his part to aid plaintiffs in ~his litigation.
Fortunately, Dr. Kocp ~s also reported to have identified
playing video games as addictive as well.
The emplo~ent of the te~m "addiction" to describe
smoking behavior has been subjected to criticism. For example,
Dr. Jaffe said "the word 'addiction" has c;ept into popula:
591.
5%2.
The charge seems to have had both politically and
economic motivations, that is to taint cigarette smoking
and to bring smoking cessation assistance within the
coverage of group insurance plans.
Hearings on "Ant~smoking Initiatives of the Department of
Hea~th, Education and Welfare" before the Subcommittee on
Health and the Environment of the Committee on Interstate
and Foreign Commerce, United States House of
Representatives, 95~h Cong., 2d Sess. at pp. 8, 10
(1978).
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parlance . to mean so many things it hardly means
anything."'~-~-!" Dr. Jaffe further testified:
I believe that the word addicted has
been used by so many people that it is often
a fruitless exercise to talk about what an
addiction is in American society.
Do I believe Congress is addicted to
deficits? I have a list of contexts in which
the term addiction is used. It is very long.
It is an English word whose use with non
drug-related phenomenon long antedate its use
with drugs. Parenthetically, the first drug to
which the word addiction in the English language
was ever applied was tobacco. But that's
historical.
The question is can people be addicted to
other things. Well, certainly in the 18th
century one would be addicted to card playing,
addicted to gambling. That was the older use of
the term. Obviously evolved, taken on other
meanings, been used in other contexts, and
frankly, it doesn't have as much scientific
utility as it might have had it not been used in
all Of these other contentions [sic?].
Dr. Jaffe added that some professionals in mental
health use the word addiction as a "very catchy title for an
article or a book" that is used to refer to a "strong urge to
continue to engage in behavior."''----!~"
595.
Jaffe Depo. at 655.
Id. at 293-94. Dr. Jaffe was not asked to produce his
"long list" nor was he asked to enumerate all of the
contexts in which addiction has been used. Undoubtedly,
the list would have contained many everyday items that
wou~d be useful to the defense.
Id. at 295.
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It is perhaps for this reason that DSM-III identifies
a "tobacco dependence disorder- rather than "addiction.- Even
then, however, it is to be noted that DSM-III contains explicit
disclaimers about the validity of its own definitions.'/-z~/
This abbreviated chronology puts in context (among
other things) plaintiffs' failure to warn of addiction claims.
Specifically, during the 1960s there was wide scientific
59~.
The DSM-III disclaimers are:
DSM-III provides specific diagnostic criteria as
guides for making each diagnosis since such
criteria enhance interjudge diagnostic
relia~ility. It should De understood however,
that for most of the categories the diagnostic
criteria are based on clinical judgment, and
have not yet been £ully validated by data about
such important correlates as clinical course,
outcome, family history, and treatment
respomse. ~sdoubtedIy, with £urther study the
criteria for many of the categories will be
revised.
DSM-III at 8 (emphasis added). Tab 177.
The purpose of DSM-III is to provide clear
descriptions of diagnostic categories in order
to enable clinicians and investigators to
diagnose, communicate about, study, and treat
various mental disorders. The use of this
manual for non-clinical purposes, such as
determination of legal responsibility,
competency or insanity, or justiflcation for
third-party pay~nent, must be critically examined
in each instance within the appropriate
institutional context.
Id. at 12 (emphasis added). TaD 177.
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acceptance of the proposition that cigarette smoking was not
addictive. The perversion of that term ensued in the 1970s.
Some help£ul testimony was added by Dr. Jaffee:
A, Well, in 1962 or '63 I can say I wasn't
thinking very seriously about the concept.
Why was it at that time, if you Can tell me,
that you weren't very seriously considering
cigarettes as dependent or addictive?
Ao
It wasn't being widely written about in the
medical literature.
Q0
• . [I]t wasn't being written about very
much in the medical literature in any way.
When did you first conclude that cigarette
smoking was either a drug dependency or a
drug addiction?
• [I]t might have been sometime between
i9~4 to 1970, in that range ....
Would it be fair to say that there was a
dispute in the 60's in the real scientific
community as to whether or not there was a
withdrawal syndrome connected with the
cessation of tobacco smoking?
I think that would not be an unfair
statement.
Would the differences of opinion, as you
described them, continue on through the 70's?
I think that there was a clear and
progressive shift beginning in the early
70'5 toward more and more consensus among
the real scientific community that there was
a withdrawal syndrome albeit one that is
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difficult to define in man and exceedingly
difficult to measure in animals.
Q. Did the differences of opinion in the real
medical community . . . extend into the
1980"s?
A. Differences of opinion
continued .... /-~-~
Thus, even under the plaintiffs' definition, the duty
to warn did not arise until about the same time that warning
label appeared on packages. DSM-III which recognized "Tobacco
Dependence" and "Tobacco Withdrawal" was not adopted until
ig80, and the subcommittee which formulated the definitions was
not formed until sometime after 1974.
D. Dependence/Ability to Quit
The traditional response of the Industry to both
"addiction" and "~ependence" allegations has included the
proposition that 35 million smokers have quit2 accordingly
plaintiff could have done so as well with a sufficient
commitment. Those propositions must remai~ a centerpience of
the defense strategy.
In documents, Industry employees have acknowledged
that some smokers have difficulty in quitting and that smoking
597.
Jaffe Depo. at 370-7!, 694, 696, 698, 700. Dr. Jaffe
notes some scientific evidence of addic:ion in the
Forties.
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causes dependence and/or addicition. Fortunately, the terms
"dependence" and "addiction" are frequently used without any
refe~=ent definition. Nevertheless, these and other documents
support the DSM-III propositions that cigarette smoking is
phySi0active and.that abstinence causes withdrawal symptoms in
some smokers.
Furthermore, plaintiffs will contend that the 35
million smokers who have quit are not in issue. The 35 million
quitters are obviously among the smokers described by
researchers as those who able to quit without difficulty.
Rather, the issue is whether plaintiff was among the subclass
of the current 55 million smokers whose dependency is so great
that they cannot quit.
Some Industry documents conveniently (for plaintiffs)
identify subclasses of dependent smokers. Moreover, the
difference between smokers and nonsmokers which may account for
the increased incidence of lung cancer in smokers. Some of
these "constitutional" differences are now being cited as
characteristics of those unable to quit. Thus,
constitutional theory as an alternate causation theory creates
problems for the defense on the "ability to quit" issue.
Before any industry witness or expert suggests a
"constitutional" theory as an alternate cause of lunq cancer,
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the implications with ~espect to the ability to quit issue
should be carefully evaluated.
While Industry documents and =admissions" create
difficulties in dealing with dependency issues, plaintiffs are
still vulnerable on a number of critical points. Thus, one can
take each element of the definition o~ =addiction= set forth in
the 1964 Report to the Surgeon General and secure admissions
from plaintiffs and their experts that non..._~e of the criteria is
met. Unlike Darbiturates, heroin, cocaine, amphetamines, PCP
and marijuana, DSM-III acknowledges that tobacco use does not
cause any state of intoxication or other impairment of social
functioning that prevents "free and flexiDle" thinking or
rational thought."la-z" Dr. Jaffe readily conceded that Rose
Cipollone's intellectual capacity was not impaired./u-z~
Second, the issue Of persomal commitment to quit
typically favors the Industry. It is come, only accepted that
the traits most clearly predicitive of success in cessation
efforts are commitment and self-efficacy. Moreover, plaintiffs
have had difficulty in defining what is essential to establish
"a serious attempt to stop smoking," and their conclusions are
transparently self-serving. For example, Dr. Jaffee could not
598. DSM-III at 163-79, Se._~e Tab 177.
599. jaffe Depo. at 587.
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qive a definite answer but believed "most clinicians" would not
requi~e "the seekinq of professional consultauion"'°°" as
threshold evidence of a serious attempt to quit. He
acknowledged that it was an important and "provocative"
question.~-~-~" Me would consider flushing cigarettes down the
toilet followed by at least a half day's cessation, switching
to a pipe, or switching to a low nicotine cigarette as "serious
attempts" to stop.
The Industry may be faulted for not monitoring the
addiction literature, for not conducting addiction research,
and for not warning of addiction. An overzealous attack by
plaintiff on these issues could, however, backfire. Industry
witnesses could be (and correctly should be) indignant over
accusations that loose definitions adopted in 1980 should have
governed their conduct 20 to 30 years e~rlier. Moreover, even
if one were to concede the contem~oraD/, appropriateness of
DSM-III's definitions, Monday morning quarterbacking has never
altered Sunday's game plan or won a game.
Nevertheless, the Industry's position can and should
be strengthened. Industry deponents should be fully prepared
600. Id. at 619.
601. Jaffee Depo. at 574-76, 617-28.
602. Id. at 622-23.
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nicotine to other common substances and is useful as a starting
The challen~e for defendants with respect to the
addiction issue is to establish factually that plaintiffs could
stop if they really wanted to. Just as plaintiffs have
obtained much helpful information from the defense, so also
might the defense obtain helpful information from plaintiffs
and their addiction expe=ts. A deposition outline for
cross-examination of plaintiffs' addiction experts is beyond
the scope of this Report, but the following are areas of
inquiry which should be pursued:
• The expert should be pinned to a clear and
unambiguous definition of addiction.
" The expert should be forced to concede that there
hawe been multiple definitions o£ addiction, and
that the definition in the 1954 Report was
credible and state-of-the-ar~ in 1964 and in 1969.
• The expert should be forced to concede that non.._._se
of the criteria from the 1964 Report is satisfied.
• To the extent that the expert identifies ~ny
physioactive aspects of smoking, he should be
603. "Smoking and Mealth Litigation Tactical Proposals,"
August I0, 1985 at 47-48 contains other suggestions.
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"set up" to corroborate the old advertising.
themes (e.G., smoking aids digestion), including
any found by the FTC to be false and misleading.
Similarly, the physioactive aspects of smoking
may be directly relevant to the benefit side of
the risk/benefit equation, with plaintiffs'
addiction expert serving aS an unspecting
supporter of our contentions.
As part of the ~efinitional examination, the
expert should be forced to provide a
comprehensive check-list for identifying
laddicted" or "dependent" smokers. It is quite
likely that either the plaintiff will fail to
satisfy some criteria, or that the expert will
have disabled himself from other litigation.
If possible, admissions with respect ~o the
reliability of various other literature, o: other
experts should be obtained. Undoubtedly, sharp
distinctions can be made in this area which is
characterized Dy loose definitions and even
looser thinking. Similarly, such literature may
equate nicotine with other common substances.
If the expert paints an extreme picture
addiction, it may be possible to wrest admissions
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that it is folly to argue that advertising could
have had any impact on smoking continuation.
c. Addiction: A Self-Fulfilling Prophesy
Another potentially strong point for the defense is
that the "addition" label can become a self-fulfilling
prophesy. Thus, those who believe themselves addicted wil cite
their "addiction" as an excuse for not quitting or even
attempting tO quit. In other words, antismoking organizations
which use the term "addiction" tO stigmatize Cigarette smoking
are engaging in a self-defeating activity.
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VII. PUNITIVE DAMAGES ISSUES
Plaintiffs will undoubtedly argue that the industry's
conduct as detailed above was egregious and in and of itself
warrants the awarding of punitive damages. Moreover, after
establishing a prima facie case of liability and "egregious"
conduct, the scope of the evidence can expand greatly to
encompass a broad range of corporate conduct having little
relationship to the specific plaintiff. Brotherton v. Celotex
Co_~, 493 A.2d 1337 (N.J. Super. 1985); Fischer v.
Johns-Manville Co~p., 472 A.2d 577 (N.J. Super. 1984), cert.
~, 483 A.2d 137 (N.J. 1984); see also Hilliard v. A. H.
Robbins Co., 196 Cal. Rptr. i17 (Cal. App. 1983). Thus,
plaintiffs may seek to introduce other evidence of "misconduct"
to the type described below.
A. A Grant Clarke
Plaintiffs' Contentions
A. Grant Clarke headed the so-called "Camel
Cigarettes Medical Relations Division," but in fact was
employed by the William Esty advertising agency. His job was
to recruit physicians to support advertising campaigns
communicating medical endorsements of smoking. In addition,
Mr. Clarke was instrumental in creating the original TIRC
Scientific Advisory Boa=d.
Supporting Testimony and Documentation
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The Old Camel ads list Grant Clarke as the head of the
"Camel Cigarettes Medical Relations Division." Further, the
"Medical Relations Division" was the subject of one set of New
Jersey interrogatories. This, so far as is known, is the
extent of. the plaintiffs' knowledge of Mr. Clarke. Dr. Colby
(RJRT) and william Smith (RJRT), however, are somewhat
knowledgeable about Grant Clarke, and plaintiffs may obtain
some of the following information at future depositions.
Mr. Clarke was an employee of the William Esty
advertising agency until December 31, 1956. Me died shortly
after leaving the agency. While working for Esty, Clarke acted
on behalf of Reynolds,~°°" which reimbursed Esty for Clarke's
salary and office expenses. It is uncertain whether Clarke
ever employed by Reynolds; its personnel o~fice has no record
of his employment and all Personnel files before I955 have been
destroyed. However, a 1954 draft of an answer to an
interrogatory in Cooper v. RJRT states that Clarke was never an
Reynolds employee.'~$~ Thus, it is reasonable to conclude
604 .
605,
William Esty memorandum, January 31, 1957. Tab 286.
Also, in Dr. Colby's interview dated July I0, i~, 17,
1985 at 2, Colby stated that Clarke was an Esty
employee. Se__~e Memorandum "Dr. Frank Colby Interview
Conducted on July i0, 12 and 17, 1985," by J. Clare
(wcs&R), September 9, 1985. TaD 287. See also May 19,
1986 conversation with Mark Holton (WCS&R). Tab 288.
Draft Interrogatory Answers, Cooo___..~er v. RJRT, October 27,
1954 (50050 2748, at 2754). Tab 290.
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that Clarke was not directly employed by Reynolds.
As an Esty employee, Clarke ran the Camel Medical
Relations Division ('CMRD') for Reynolds between 1942'~'/ and
1953.'~'~ The CMRD was housed in the same building as Esty
but was financed directly by Reynolds.'"'" The Medical
Relations Division appears to be "nothing more than an address
through which the ad agency (Esty) could mail out articles in
the smoking and health area."'~'" The address, One Pershing
606.
607.
608.
609.
Smith Interview at 2. Tab 289. Smith emphasized that
the medical relations program was simply a sampling
program, nothing more. Id. at 3.
The exact date that RJR moved the program in-house is
unknown. Also, the last known letter from Clarke with a
Camel Medical Relations Division letterhead is dated
February 15, 1954. Se__~e Letter from G~ant Clarke to E.
A. Dart (50194 1838). Ta~ 291. This letter indicates
that
I) RJR moved the program in-house in 1954 or
2)
when RJR moved the program in-house in 1953, Clarke
continued to work on the program or
Clarke used stationery with the CMRD letterhead
while he was the Director of the Bureau of Research
Information.
Se__.~e letter from Clarke of the Bureau of Research
Information to Henry Ram~ (March 26, 1954). Tab
Draft witness statement of James Houlahan (Esty
president), "Not A Single Case Of Throat Irritation--The
Thirty-Day Smoking Test" (March 17, iS58) (50017
5900-5901). Tab 293.
Se___~ Tab 295.
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Square, is the side door of the William Esty Advertising
Agency.~u/-z~ In the 1940"s, Reynolds ran Camel ads in medical
journals et al. touting certain beneficial aspects of smoking
Camels; for example, Camels are slower burning and therefore
smokers receive less nicotine. If smokers were Curious about
the studies upon which the ads relied, they were advised to
write to the =MRD" in New York.''''
In addition, approximately six people attended medical
conferences across the country and interviewed the doctors in
an effort to substantiate the "More Doctors Smoke CAMEL"
advertising campaign of that era. The Esty groups also sampled
doctors and their employees in their offices."~'~/ According
to William Smith, former Reynolds vice-president, Esty's
involvement in the Camel Medical Relations Division ceased when
Smith began handling this in IgS3.J~-zt Smith said that the
entire medical convention program was brought in-house and once
Reynolds controlled the program, it no longe: sampled the
doctors in their offices.~--Lzz The CMRD was transferred to
610. Tab 288.
611. Tab 295.
612. Smith Interview at 2.
Tab 289.
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the Sa~es Department.''~/
Dr. Colby shared an office with Clarke at the William
Esty Agency in the early 1950s. Colby said that Clarke looked
at literature for Reynolds but did not mail out unfavorable
literature so aS not to upset "higher-ups" at Reynolds in
Winston-Salem.6'~z Colby believes Clarke misinformed
management and he called Ken Hoover (Director of Research in
the !950s and a member of the Board of Directors from 1953-64)
to tell him that Clarke was a quack.~-/~-'~ Colby does not know
to whom Clarke was reporting, but said it was probably to
whomever was at the top of Reynolds from 1951-52.
Once the Camel Medical Relations Division went
in-house, Clarke remained an employee of Esty and was the
director of its Bureau of Research Information. The exact date
is unknown, but it was some time between February 15, 1954 and
March 26, 1954.~-~/ D~cuments referring to this Bureau date
615.
616.
617.
618.
619.
Tab 28a. William Smith has no knowledge of any
responsibility or effect by Clarke to keep Reynolds
informed of smoking and health issues and science. Smith
interview at 2-3, AugUSt 29, 1985 at 2-3. Tab 289.
Colby Interview, July i0, 12, 17, 1985 at 2. Tab 287.
Tab 288. Se._~e Tab 294.
Tab 287.
(50194 1838; 50050 2507). Tabs 291 and 292.
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puy "~6Z qei "(LO~Z OSO0~) ~ "96~ qe~ "(9L9~ LTO0~)
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credited quacks as expert witnesses.*-3-1"
Clarke left Esty in 1956. His disassociation from
Reynolds was apparently due to personal problems.
Specifically, "he drank too much, went after women too much and
was promiscuous with the doctors" he was trying to secure as
witnesses.~''~
Possible Industry Responses
The first line of defense to Grant Clarke's activities
with respect to obtaining witnesses and monitoring health
literature is that his work was done for lawyers in
anticipation of legal proceedings and is, therefore, opinion
work product. Fu.rther, since his activities were over thirty
years ago, a weak argument could be made that they are not "of
consequence to ~he determination of the action."*-3-/I
However, if the ads which resulted from Clarke's work are
relevant, then the information behind them may be also.
As far as the substance of Grant Clarke's action, the
best answer may be that no one is very ~amiliar with what he
did, but he was taken off the Medical Relations program and was
622.
"Briefing for Sam Witt by Ed Jacob and Frank Colby (April
5, 1977)" (50028 9605, at 9606). Tab 299.
623. Id. See also TaD 300.
624. Se___~e Fed. R. Evid. 401.
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eventually "let go." The most important point is: The less
said the better. No response to whatever p~aintiffs are able
to uncover may he the best response.
B. The Kent Micronite Filter
Plai~tiffs' Contentions
The Kent "Miracle" Micronite Filter apparently
contained asbestos. Some of the anti-tobacco forces once
suggested this as a basis for criminal prosecution of Lorillard
executives. As a result of the "synergistic" effects of
asbestos, liability of Lorillard is arguably absolute under the
Beshada case.
Supporting Testimony and Documentation
The alleged composition of the Kent ~ilter is a matte:
of public knowledge. A document entitled "A Bore on Public
Policy Issues in the Cigarette Industry" authored ~ Joe ~. Tye
(who has written several other anti-tobacco articles) quotes
from an interview with DE. Blum (who is a representative of
"Doctors Ought to Care'). Mr. Tye attributes the following
remarks to Dr. Blum:
There is no doubt in my mind that w~thin my
lifetime there will be criminal trials of
cigarette company executives. There is
ample documentation that they have been
dishonest and deceptive concerning the
health implications of smoking, have
deliberately directed advertising and
promotion at children, have included
dangerous additives in their
cigarettes--like the asbestos in Kent's
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Micronite filter--and have influenced
commercial transactions and the political
process through inappropriate and sometimes
illegal payments.'~"
The above information is obviously available to
plaintiffs. It was recently repeated by Mr. Tye in the
TPLR.~--L£/ The source of Dr. Blum's information is unknown.
The time period during which asbestos was allegedly used needs
to be pinpointed. Sut some of the early Kent ads made arguable
health claims: "0nly Kent goes to the extra expense to protect
you with microscopic filtering" and ". Kent's
Micronite
Filter takes out more nicotine and tar . , protects you as no
other filter can.°~'/
Possible Industry Respons.~
On this issue, Lorillard must be prepared to defend
the accusations, whether or ~ot it is a defendant. If the
Lorillard product contained asbestos, it is ~damentally
different from other cigarettes. Our witnesses and other
industry witnesses should stand clear and let Lorrilard defend
accusations about the Micronite Filter.
625.
626.
627.
"A Note On Public Policy Issues In The Cigarette
Industry," Joe B. Tye, Stanford Graduate School of
Business, April 15, 1985, Tab 301.
Tye, "Selling Death By Promising Health: Sixty Years of
Health Claims on Cigarette Advertising," l.B T.P.L.R. at
p. 4.66 (1986).
Kent Advertisement, Saturday Evenina Post, (November 13,
1954). TaD 302.
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P~esumably Lorillard knew nothing of the alleged
dangerous propensities of asbestos. Second, the filter itself
may have protected against the inhalation of asbestos. This
issue reguiles further investigation.
C. Deceptive Cooperation with the Surgeon General's
Advis@,ry Comr~ittee 1962-1963
Plaintiffs' Contentions
The Industry attempted to reinforce the smoking public
by a~pearing to cooperate with the Advisory Committee to the
Surgeon General, while planning to attack its findings. While
~e Advisory Committee investigated the smoking and health
issue, the ~ndustry issued public statements predicting that
the A~visory Committee would conclude the issue was an "Open
Question," despite its conviction that the A~visory Committee
would conclude cigarette smoking was a cause of ~ung cancer.
Dr. Colb7 recognized this inevitable result when he testified
at his deposition that the "establishment" posit~on ~or forty
years has ~een that cigarette smoking causes lung cancer.
The plaintiffs will attempt to under~ne the
Industry's attack on the 1964 Report by demonstrating :hat the
Industry could have vetoed any of the Committee members but
failed to do so. Furthermore, the Industry praised the
credentials of the Committee members.
Su~port~ng Testimony and Documentation
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In July 1962, Surgeon General Terry and members of his
staff met with representatives of voluntary health associations
such as the ACS and AMA as well as George Allen, P=esident of
TI and TIRC's Dr. Little. George Allen distributed his notes
of the meeting to'members of the Industry,~z Surgeon
General Terry stated the purposes of the meeting were to
discuss the formation of the committee to study the question of
smoking and health and to discuss the names of individuals to
be chosen. Dr. Little submitted a list of persons to be
considered for the Committee. Dr. Hundley, the Assistant
Surgeon General stated: "Everyone is requested to strike the
names of any person to whom he objects. We hope to appoint men
to whom no one objects." Dr. H~ndley further stated that the
list he had prepared excluded anyone who he knew to be biased
and excluded everyone who had volunteered. T~e Industry did
not veto any of the panel members. Earle elements later denied
that the Industry had any role in the selection of the members
of the Advisory Committee.~-/-zz
628.
629 .
Memorandum from George V. Allen, to Members of the
Institute Committee on Legal Affairs Public Relations
Committee, "Surgeon General's Meeting--July 24. 1962,"
July 26, 1962 (I002609785). Tab 303.
Notes of "Conference at Office of the Secretary of
Health, Education and Welfare, May 2, 1968," May 3, 1986
Draft (I002609317). Tab 304.
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<
George A11en described the Surgeon General's Committee
as "composed of qualified scientists." In a conversation with
Surgeon General Terry in November 1962, George Allen told the
~ur~eon General: "Dr. Little had informed me that the talents
and experience 'of those named were impressive and broad enough
to carry out a study which 'will be concerned not only with
tobacco but all other factors which may be involved, such as
air pollution, automobile exhausts, etc.''~-Lz"
As indicated above, the Zndustry announced its
cooperation with the Surgeon General's Committee in
advertising.*--ut" A few weeks after its meeting with the
Surgeon General, the Industry mapped a far different
strategy.~-/-L"
We are ell agreed that we want to do
whatever can be done to put us in the
s~rongest position possible to counter
negative public reaction to the so-called
health scare and to counter ~ossi~le
punitive a~ministrative orders or
630.
631.
632.
Memorandum of Conversation between George V. Allen and
Surgeon Genera! Terry, November 7, 1962 (I002609776).
Tab 305.
Background on Tobacco and Health (August 1962) (65011
9445). Se__e Tab 306; ~ statement about Tobacco and Health
(undated). Se___~e Tab 267.
Memorandum from The Tobacco Institute to Members of the
Executive Co~ittee, October 22. 1962 (1002609370). Tab
307. See also TI document of unknown date and origin
(Tab 29), which reiterates the strategy to avoid
"offending the Surgeon General's Committee."
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legislation on both the State and Federal
levels.--
Dr. Little and members of the Industry were to prepare
to "evaluate constructively and critically and to publicize at
about the time of the release of the report any. deficiencies,
inadequacies or bias ." The strategy also provided:
In the meantime, the Institute and the
tobacco industry should manifest an attitude
of complete cooperation in the developmen:
of the report and also manifest confidence
that a thoroughly objective and unbiased
study and appraisal will be made and that
such study and report will indicate that we
do not now know what causes lung cancer or
any other kind of cancer.
The strategy document concluded, "we should be ready to hit
hard and effectively at the time the report is made
."
The basis for the Industry's apprehension of an
adverse finding are not hard to appreciate. In 1957, a study
group, which included Drs. Shimkln and Bing (later an SAB
member), was appointed by the Surgeon General. Their
report--entitled The Health Consequences of Cigarette
Smoking--concluded that smoking caused lung cancer.~--Lt"
633.
634 .
Dr. Little was scientific director of TIRC but he "took
orders" from TI on this occasion, as well as on many
other occasions. Se___~e Cullman De~o. at 212-18.
Se.__~e Heimann Roaers Depo. I at 136. Note that the text
accompanying tb~s footnote are based on Mr. Townsley's
questions. Documents have not been located.
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Indeed, Surgeon General Burney stated that statistics indicated
that excessive cogarette smolking was a causative ~actor in
lung cancer. Secondly, in 1962, the prestigous British Royal
College of Physicians and Surgeons had concluded that cigarette
smoking caused.lung cancer. Accordingly, there was no reason
to doubt that the Advisory Committee would not follow suit.
Nevertheless, the Industry wanted to appear to be
cooperative.
In April 1963, the Assistant Surgeon General, Dr.
Hundley, asked TI "to supply information which might be of
interest to the Surgeon General's Committee on Smoking and
Health."~ George Allen, the President of TI at the time,
replied that Philip Morris would submit "analytical data" to
the committee.~-L£~
Soon after the Report was released, the Industry began
attacking it. The in~nediate objectivewas to avoid extreme
restrictive measures by the Government. The attacks occurred
even though the Industry recognized that the "declaration that
cigarette smoking is a health hazard" was the official p~!icy
635.
636.
Letter from J.N. Hundley to G.v. Allen, April 1963
(0002609786; Cullman Depo. Exh. 39).
Letter from George V. Allen to Dr. James N. Hundley,
April ii, 1963 (1002609751); letter from Joseph F.
Cu!Iman, 3rd to George v. Allen, April ii, 1963.
Tab 308.
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of the U.S. Public Health Service, and was accepted by most
major health groups, a committee of the AMA, the press and
other media, including science writers, and the public.
The Industry even appeared to consider accepting the finding,
itself.Jul-z" The goal, as was the case when the Surgeon
General first announced the formation of the Committee, was to
"buy time." After the report was issued, the goal was to
"reestablish" the open controversy rather than to perpetuate
itoJuLa~
Subsequent Surgeon General Reports were alsc
attacked.~'°" The Industry also attacked the reports of the
Royal College of Physicians.~''~ Surgeon General Stewart
638.
639.
540.
641.
Se__.~e letter from Carl Thompson to James C. Bowling,
FeDruary 24, 1964 (1005038562). Tab 309. "Notes of
Com~ent On Report of SurgeQn General's Advisory ComInittee
on Smoking and Health', February 25, 1964 (1005038563).
TaD 310.
Se.__~e, e.__ug_~, Evaluation of the 1967 Report (i002609258).
Tab 311.
Informational Memorandum from Horace R. Kornegay to Chief
Executives, January 12, 1971 (1002906706). Tab 3!2.
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recognized the continuing tactic of feigning cooperation while
attempting to perpetuate the discredited open question.-~-tl~
Possible Industry Res.ponses
Industry cooperation with the Surgeon General's
Committee is not inconsistent with preparing contin@ency
plans. Nor do the documents establish that the Industry's
cooperation was a sham. Other documents which plaintiffs have
selected indicate that Industry representatives met with the
Surgeon General or the Secretary of Health, Education and
Welfare on numerous occasions.''~z Therefore, the response
ought to be: The Industry cooperated and has continued to
cooperate with the Surgeon General even though it disagrees
with the conclusions he draws. The Industry could perceive no
purpose in deliberately alienating the Surgeon General's
Committee by ~ailing to cooperate.
642 .
643 .
Letter from William H. Stewart to Senator Thurston B.
Morton, December 21, 1967 (I002609348), Tab 313. The
Surgeon General commented:
[I]ndustry spokesmen repeatedly urge
negotiations and cooperation while
simultaneously maintaining a rigidity both
unrealistic and unchanged in the four years
since the landmark smoking and health report.
Conference between Secretary Wilbur J. Cohen, Surgeon
General William H. Stewar~, Senator Earle C. Clements and
others, April I, 1968; Conference at the Office of the
Secretary of Health, Education and welfare, May 2, 1968.
Tabs 314 and 315.
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D. True Maqazine
Plaintiffs' Contentions
In late 1967 and early 1968, the tobacco industry
commissioned an article by a sportswriter, Stanley Frank,
entitled To Smoke of Not to Smoke That Is Still the
Question. The article was published in the January 1968 issue
of Tru__e magazine."'---!/ To call the public's attention to the
article, the Industry ran a contemporaneous ad in 72 ma~ke=s,
announcing the article's publication.~ Not surprisingly,
the article echoed the arguments which had been made by the
Industry for over a decade. Also not surprisingly, at the time
the article was published, Mr. Frank was an employee of Hill
and Knowlton, a public relations agency whose clients included
the CTR and TI. To ensure the most widespread distribution to
the smoking public, an only slightly-revised version of the
article was published by Mr. Frank in a second tabloid, the
National Enquirer, under an alias, Charles Golden, and under a
different title, Most Medical Experts Say: Ci@arette-Cancer
Link is Bunk.-- 70,000,000 Smokers Falsely Alarmed.
644 .
645 .
S. Frank, Tru____~e, "To smoke or not to smoke - that is still
the question" (1968) (65011 9625; T 12687; Thompson Depo.
Exh. 36). Tab 516.
Letter from Reginald B. Wells to Senator Earle Clements,
December 6, 1967 (65009 2463; T !3769; Bowling Depo.
Exh. 54). Tab 317.
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Finally, to disseminate the article beyond the
relatively downscale readership of Tru_.__~e and the Enquirer, the
Tobacco Institute, through a public relations agency, Tiderock,
mailed reprints of the Tru___~e article to doctors and other
"opinion leaders" throughout the country. Nowhere in the
mailing, howdver, was TI identified as the distributor.
Instead, the reprints stated: "As a leader in your profession
and community, you willbe interested in reading this story
from the January issue of True magazine about one of today's
most controversial issues.--THE EDITORS."''---~*~ Had the Wall
Street Journal not discovered the facts, the story behind the
Tru_.__~e article would have never been told.
Supporting Testimony and Documentation
The 1968 FTC Report to Congress alleges that the idea
foc the Tru_._~e article originsted with Douqlas Kennedy, a heavy
smoker and then editor of Tru.___~e, and Joseph Field, a
relations expert then on retainer to Brown & Williamson. Both
contacted Frank to develop the article, for which he was paid
$500.00 from Field, who, in turn, was reimbursed by
Material for the article was reportedly supplied by Ed Jacob
646 .
Truce article (T 12747; Kloepfer Depo. Exh. 63). TaD
318. The response to the mailing was overwhelmingly
negative. Letter from Seymour Henck to william Kloepfe:,
Jr., March 19, 1968 (T 1266S). TaD 319.
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(identified in the 196~ FTC report only as an unnamed attorney
for another tobacco company). An outline Of the article was
submitted to Tru___.~e and Fie1~ on April 50 1967, at which time
three of four Truce editors approved it for publication: the
fourth called it "the purest trash -- dated~ biased and without
proper justification."~''~ Frank was later paid an
additional $2,000.00 by Tru.__~e. The FTC described the
preparation and subsequent distribution of reprints of the
article as "not the acts of an industry either confident of its
facts nor solicitous of its reputation."~'---/', Curtis Judge
acknowledged that the article was not unbiased.~''"
Tiderock had significant advance notice of both the
fact and substance of the Frank article. A November 20, 1967
document entitled "The Cigarette Controversy - An Action
Program" ~u~hored ~y Tiderock,~-~" included as p~rts of its
"Suggested Mailings" both the Tru_...~e article and an Es~u.~re
article, which had been written by Rosser Reeves, President of
Tiderock, in anticipation of the "things wrong
. with the
647.
648.
649 .
650.
1968 FTC Report, at 26.
I_~. at 30.
Judge Depo. at 240.
(T 13206; Kloepfer Depo. Exh. 37, at 2).
Tab 275.
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True article."~-~L~' In reference to the latter, Mr. Reeves
must have had sufficient advance access to the Tru____~e article in
order to have both arranged for his article to be published by
Esquire and have distributed his "finished manuscript" to TI
personnel for con~ent by November 29, 1967, over two weeks
Before the newsstand appearance of the January 1968 Truce
issue.~--L~"
The "Action Program" also listed as an objective:
"Generation of free-lance articles (~squire, True, etc.) on a
continuing basis."t~--~" The proposal, however, listed the
cos~ of this o~jective as "-0-'. Consequently, the
interpretation of this item is that Tiderock sought to
encourage, rathe~ than co~ission, the prepa~ation of such
articles,~"
652.
653 .
654 .
Letter from Rosser Reeves to Senator Earle C. Clements,
November 29, 1967 (T 12S68). TaD 320.
Informational Memorandum "True Magazine Article on
Smoking and Health," from William Kloepfer, Jr.,
Decen~Der 4, 1967 (Kloepfer Depo. Kxh. 62). Tab 321.
This document reveals that TI had a copy of the article
on Dece~er 4, 19~7.
(T 13206; Kloepfe~ Depo. Ezh. 37, at 2). Tab 275.
In his deposition, Kloepfer denied that, however defined,
any such effort had been undertaken. Kioepfer Depo. at
385.
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Many documents included in the production detail both
the tobacco companies' and Tl's reprinting and distribution of
the article.
These include substantiation of:
distribution of tens of thousands of
copies to the individual
companies;~--t!~
distribution to tobacco growers and
dealers;"~---~ and
distribution to physicians, dentists,
media personnel, scientists, educators,
government figures, securities
analysts, lawyers, insurance company
and other executives (total: 414,820
True reprint costs are listed as $82,363.00.~-Lzz
There is a collection of largely illegible
correspondence and memoranda concerning inquiries by Wall
Street Journal reporter Ronald Kessler concerning the True
project.`'.--/'/ Among the significant points are:
655. Letter from Seymour Henck to william Kloepfer, Jr.,
January 17, 1968 (T 12655). Tab 322.
656.
Letter from William Kloepfer, Jr. to Seymour Henck,
February 12, 1968 (T 12657); Letter from Seymour Henck to
William Kloepfer, Jr., February 16, 1968 (T 12650). Tab
323.
657. Letter from Seymour Henck to William Kloepfer, Jr.,
February 20, 1968 (T 12652). Tab 324.
65a. Letter from Reginald B. Wells to Senator Earle
Clements, April 22, 1968 (T 13783). Tab 325.
659. These documents are compiled at Tab 32~.
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That Earle Clements told Mr, Kessler
that TI had not paid for the Editor's
note on the reprints.'''' He also
indicated that there was "nothing
particularly unusual" about the
concealment of Tl sponsorship of the
mailing;'''~ and
That TI saw the forthcoming Kessler
article primarily as a vehicle for
presentin~ its side of the smoking and
health controversy. To that end, it
supplied Kessler with various
bibliographic references.~'~z
When the Journal story broke, the American Cancer
Society gleefully touted the Tru_.__~e episode as an instance of
"devious" Industry p~opaganda.~/ In addition, Senator
War~en Magnuson placed the Journal story in the Congressional
Record*''~ and wrote hundreds of professional societies to
66!.
662.
66~.
664 .
However, the Editor Of Tru__~e had b~en informed by the Ted
8arash agency that the transmittal note would be included
in the mailing. ~one¢heless, the £ditor denied that he
had known that the mailing would no~ identify the
sender. 1968 FTC Report, at 28.
(T 14085-86) . Tab 326.
(T 14089; T 14050; T 14051). Tab 326
"True" Magazine and The Cigarette Industry, A Coramen~
from The American Cancer Society (T 14065); "Copy of
American Cancer Society News Release issued March 21,
1968 in New York City" (T14091); "For Physicians, Medical
Bulletin on Tobacco" (vol. Vl, no. I, April, 1968)
(T 15099). Tab 327.
Congressional Record - Senate ~ 3415 "The 'Truth' About
Smoking and Health', March 27, 1968 (65011 9635; T 12~64;
Thompson Exh. 39). Tab 328.
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alert them to the origin of the article.~'---!'~ Inquiries were
also initiated by the FTC"'" and. in order to determine
whether a violation of the Code of Professional Standards for
the Practice of Public Relations had occurred, by Coudert
Brothers.-t~-!/
These events prompted a spate of denials and
fingerpointing by all involved parties:
Hill and Knowlton denied knowledge of
the True article prior to Frank's
employm----'~nt with them.-
reminded Earle Clements of its advice
against reprinting the True article and
insisted upon the right to review all
public relations decisions made on
behalf of TI.
TI took offense at this H~K letter and
objected that it had not been informed
of H&K'S employment of Frank and that
665.
666.
667,
668.
669 .
Memorandum "Magnuson Mailing Re True Magazine from Lucien
T. File tO william Kloepfer, April 23, 1968 (65011 9566;
T 12621; Thompson Depo. Exh. 30). Tab 329.
Letter from Brice M. Clagett to Alfred Lindeman, Esq.,
June 6, 1968 (T 12581). TaD 230.
Letter from Bert C. Goss to Coudert Brothers, June I0,
1963; Letter from William Kloepfer, Jr., to Coudert
Brothers, September i, 1968; Letter from Coudert Brothers
to William Kloepfer, Jr., August 28, 1968 (T 12582-586).
Letter "Tobacco Story and Stanley Frank" from Bert C.
Goss to All H&K Officers. March 21, 1968 (T 12627). Tab
332.
Letter from Bert C. Goss to Senator Clements, March 22,
1968 (T 12628). TaD 333.
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Frank had been permitted to author the
second Enouirer article while an H&K
employee.¢"---z~
Perhaps in reaction to the above
exchange, H&K ~ondered whether to
withdraw from the TI account.~
Meanwhile, TI, too, was denying
involvement in the authorship of the
articles,-~-t" and, "because oF the
aftertaste of the True thing," American
Tobacco declined to join in any ads
signed by TI.
Possible Industry Responses
There are two separate issues here. The first
concerns alleged Industry collusion in the authorship of the
article; the second deals with the article's distribution.
ThuS, regardless of whether the Industry would be capable of
defusing the allegations contained in the 1968 FTC Report, it
will still be faced ~ith the fact of the concealment of TI's
sponsorship o~ the mailing.
670.
671.
672 .
673.
Letter from Earle C. Clements to Bert C, Goss, March 28,
1968 (T 12624). Tab 334.
Confidential Memorandum from Carl Thompson to William
Kloepfer, May 2, 1968 (T 12616). Tab 335.
terminated the account on December 31, 1968.
14045; Kloepfer Pepo. Exh. 68). Tab ~6,
Confidential File Memo. July @ (T 15116). Tab 337,
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a. Authorshi~ "
If the FTC account of the episode is accurate and
representatives of more than one tobacco company were involved
in the commissioning and development of the article, it would
be difficult to.characterize the affair as the product of
individual "loose cannons." On the other hand, to the extent
that there is no documentation of TI involvement, it cannot be
said that this was an instance of organized institutional
activity on the ~art of the Industry. The =best" Industry
response, therefore, might be to lay this stage of the affair
at the doorstep of an overreaching editor and a few frustrated.
tobacco company employees. That B&w ultimately supplied the
initial $500.00 is damaging, but that sum is not so large as
woul~ aler~ upper management that a significant plot was
a~ooto ~either t~e FTC in its investigation nor the plain~i~s
during ~iscovery have uncovered a "Smoking gun" tO prove
otherwise.
As regards the issue involving the e~ployTnent of
Frank, the rash of post hoc finge~po~ntin~ letters substantiate
the position that perhaps one hand really did not know what the
other was doing. Although t~e coincidences involved are
enormous, the Industry should assert that the events unfolded
in a manner such that the Industry never had full knowledge of
or control over them. This depiction will be directly at odds
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with the plaintiff's portrayal of the Industry as a monolith.
If convincingly made, however, this response may reap
collateral benefits in other areas in which the plaintiffs also
seek to depict an omniscient behemoth, the component parts of
which always function in lockstep.
b. The Mailing
It is an inadequate response to state, as did Earle
Clements, that anonymous mailings are not uncommon in the
public information business.-t/-~" Such a response would not
only sound cynical, but also, due to its cynicism, make a more
significant impact on the juror than this minor episode
deserves, After all, as documented by the responses to the
reprint offer, which generally ranged from outrage to
obscenity, the ploy was ineffective.
As with the bad ad c~mpai~n$, perhaps the best
response is simply to acknowledge it was done, point out that
it took place almost twenty years ago, and highlight that it
had backfired. Why was it done? The scions of the Tobacco
Institute might here also confess to being human.~-t-Lt" Having
674 .
675.
Indeed. Ca~l Thompson of H&X asserted that sources of
such information should be disclosed. Thompson Depo. at
261.
Kloepfer would have difficulty with this "confession."
For several pages of his deposition, he steadfastly
asserted that he did not recall the Tru___~e mailing and
denied that anything could refresh his recollection.
Kloepfer Depo. at 535-50.
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generally failed in various forums in presenting the "other
side" of the controversy to the public, Tr turned to this
mailing out of frustration. Both Bowling~''" and
Kornegay'''~ a~mitted to such frustration during their
depositions. It should be noted as well that the addressees of
the mailing were not "conflicted smokers," Dut educated
individuals who, had they received mail with TI listed as the
sender, might shred before reading. Much as exculpatory
in-house smoking and hea~th research might immediately be
dismissed as biased, so, too, might a mailing overtly emanating
from the tobacco industry's trade association. This response
does not excuse; it explains. In sum: we did it: we're human;
we goofed.
E. Discrediting of the Auerbach "Smokin@ Beaoles"
Experiment
Plaintiffs" Con~n~ions
Fundamental to the Industry's position that cigarette
smoking has not Deen proved to cause lung cancer is the claim
that animal experiments involving the inhalation of fresh whole
smoke have consistently failed to cause human-type lung
tumors. That, however, plaintiffs will contend is not true.
676 .
677.
Bowling Depo. at 139. Bowling also believed that
Kloepfer was frustrated. I.~d. at 4B5-86.
Kornegay Depo. at 691.
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In 1970, Dr. Oscar Auetbach reported that he had induced
invasive sguamous cell carcinoma in beagle dogs exposed to
cigarette smoke through inhalation. The Industry, however, did
not accept the findings of this eminent scientist, but rather
began a smear campaign unequalled in American history. The
Industry response to the Auetbach study is an admission that
the Open Question is a sham and that the Industry knows
cigarettes cause lung cancer.
5~pportin@ Testimony and Documentation
In the 1950s, the cigarette industry's standard
response to its critics was that no substance carcinogenic to
humans had been detected in cigarette smoke.67'~ When that
position became untenable (with the discovery of ~AHs in
tobacco smoke), the Industry's stock answer became and remains
"no one has ever produced squamous cell cancer of the lungs in
any experimenta~ animal using whole smoke.
Then, On February 5, 1970, E. Cuyler Hammand of the
American Cance~ Society ('ACS') announced that in a smoke
inhalation experiment conducted by Dr. Oscar Auerbach,
human-type cancers had been induced in the lungs of "smoking"
Se__.~e, Tab
"A LOOK AHKAD - Smoking an4 Health - Where Do We Stand?"
by Arthur Furst, Research Consultant, CTR, Sanuary 15,
1970 (CTR 4234; Gertenbach Depo. £xh. 14-KK). Tab 339.
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beagles. The ACS report received quite extensive media
coverage.
The tobacco industry responded with a massive campaign
designed to discredit the Auerbach study. On February 27, 1970
Joseph F. Cullman, 3rd, Chairman and. CEO of Philip Morris and
Chairman of TI'S Executive Committee, wrote the AC5, stating,
inter alia. that:
Since the American Cancer Society asserts
that the present study is of considerable
import to smokers, I believe that the
industry is entitled to have a full
understanding of the nature and significance
of the findings as quickly as possible. In
the interest of accomplishing this aim,
request that the Society permit a thorough
evaluation of the experiment and its results
by a panel of independent scientists with
wide experience in areas relevant to the
The AC5 replied to Mr. Cullman on March 12, 1970:
Your appraisal and suggestions are based on
a su~nary which was prepared for the
edification of science writers. It is
expected that the full report will be
published in the very near future. This
will show the meticulous work that went into
this latest scientific experiment which we
believe meets the highest traditions and
protocol of scientific investigation.
• We suggest a study of their formal
papers will satisfy any scientific or other
680.
Letter from Joseph F. Cullman, to William B. Lewis AC5,
FeDrua:y 27, 1970. (1002906557; Cullman Cipo!lone Dept.
Exh. 15). Tab 340.
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questions regarding their findings without
further investigation.~-~
Mr. Cullman then reiterated his request in a second
letter to the AC5 on March 20, 1970, threatening to bring the
controversy to public attention if the ACS remained
unresponsive. The AC5 replied on April 17, 1970:
Your request is without precedence in the
scientific community. The study under
question was the result of three and a half
years of diligent and brilliant work by two
eminently qualified scientists whose
findings have been validated by
distinguished pathologists of worldwide
reputation. In addition, other leadin~
pathologists, highly regarded by the
scientific community, have visited Dr.
Auerbach's laboratory, seen his slides and
praised the work.
We do not intend to ask that these two
eminent men submit their findings to any
selected committee chosen by the Tobacco
Institute, or any other group.~-~2~
The Industry countered with a~massive advertising
campaign designed to challen~e the study and discredit the
AC$. The TI budgeted $500,000 for newspaper and other
announcements concerning the ACS's alleged refusal to make the
68L.
682.
Letter from William 8. Lewis, ACS, to Joseph F. Cullman,
3rd, March 120 1970 (i00290~599; Cullman Cioollone Depo.
~xh. 18). Tab ~41.
Letter from William B. Lewis, AC5 to Joseph F. Cullman,
3rd, April 17, 1970 (1002906562; Cullman Cioollone Depo.
Exh. 17). Ta~ 342.
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Auetbach data available.~'-~'' One such advertisement was
boldly headlined:
The Tobacco Institute believes
the American public is entitled to
complete, authenticated information a~out
cigarette smoking and health.
The American Cancer Society does not seem to agree.~'°/
On October 9, 1970 the Tobacco Institute sent letters
to member of Congress, stating, inter alia:
This letter is being sent to you to reveal
the facts about what may be one of the qreat
scientific hoaxes of our time.
Eight months ago--just as House and Senate
conferences were aDou= to meet and resolve
different versions of the 1970 cigarette
bill--the American Cancer Society called a
news conference at the Waldorf-Astoria Hotel
in New York City. It announced that two
researchers had "for the first time"
produced lung cancer in dogs as a result cf
heavy cigarette smoking.
It was, in the Cancer Society's view, a
"significant achilvem~nt," which should have
a =significant impact" on cigarette smoking,
lead to "a reassessment" of cigarette
683 •
684 .
Minutes Of The Thirty-Fourth Meeting Of The TI Executive
Committee, May 15, 1970 (No LI5; 04209443). Tab 343; se__e
als._..._qo, "TOBACCO INSTITUTE MAY 1970 CAMPAIGN," May 12, 1970
(6013066; 65009 0437) (detailing estimated $399,200
advertising campaign). Tab 344.
TI Advertisement, undated (Cullman Depo. Ezh. 23). See,
e._~: "Correspondence between The Tobacco Institute and
the American Cancer Society February 27, 1970/April 29,
1970" (010139) (similar to 6009463, 65009 0447); "Remarks
of Joseph F. Cullman, 3rd Overseas Press Club, New York
City, April 30, 1970" (010149). Tab 345.
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advertising, and "effectively refute" the
cigarette industry's contention that
previous charges were "only statistical."
The mass media accepted the unevaluated and
unverified findings at face value, duly
displayed the story on front pages, and
exposed it on prime-time television. The
Cancer Society did not reveal that the
experiment was as yet unpublished in any
professional journal and had not been
evaluated by any independent scientific
reviewers.
Walter Cronkite broadcast the Society's
claim that "this is the first such direct
cause-effect link between cigarettes and
higher animals made to inhale."
One of the researchers who conducted the
experiment was quoted in newspapers as
declaring: ". . . we have snapped the last
link in the chain . . . There is no
question that there is a cancer causing
agent in cigarette smoke."
Today, long after the initial publicity, we
can report that:
The research is stil.___!~ unpublished in
any professional medical journal
Two prestigious medical journals have
declined to publish the study
One of the researchers has now publicly
retreated from claims (a) as to the
number of lung cancers produced and (b)
as to the significance of the study to
humans.
It now appears likely that non__e of the dogs
developed cancers and that once again the
American public has been seriously misled on
the vital issue of smoking and health.
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-.
The Tobacco Institute believes that "the
case of the smoking dogs" is a misuse of
science .... ~
TI also published -- selectively -- its correspondence
with the ACS over the "smoking" beagles.~-~-~" It did not,
however, publish or otherwise reveal to the public the ACS's
July 2, 1970 letter to Mr. Cullman or the enclosure to that
letter. In its letter to Mr. Cullman, the ACS stated:
I have read with care your most recent
letters .... I note that you as a
spokesman for a part of the tobacco industry
continue to question the Auerbach-Hammond
findings which have been reviewed and
accepted by distinguished pathologists.
Your recent views are much the same as those
the cigarette industry has expressed since
1954 when the first American Cancer Society
report on the risks of cigarette smoking was
made.
As you know, in response to your
Surqe0n Gene~a! asking that he appoint a
committee of scientists to review the
Auerbach-Ma~mond work. His answer is
enclosed - while this was sent to you at the
685.
686.
Letter from Horace R. Kornegay (TI) to Members Of
Congress, October 9, 1970 (I00260713!; Cullman Cipollone
Depo. Exh. 25) (emphasis in original). Tab 346.
In a letter addressed to a scientist who had written Mr.
Cullman concerning his (published) correspondence with
the ACS, James Bowling stated that "the Tobacco Institute
has made every effort to determine the truth concerning"
Auerbach's study. Letter from James C. Bowling to
Professor Ralph Gtawundet, August 3, 1970 (1002906440).
Tab 347.
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687.
time we made it public, I am inclined to
believe ~rom your statements that you have
not had a chance co read it carefull~,"'r"
In his response to the ACS, the Surgeon General stated:
We have carefully reviewed your request
that I as Surgeon General establish a
committee of scientists to conduct a formal
analysis of the Auerbach-Hammond study.
Sympathetic as we are to the reasons which
have led to this request, we do not believe
such a formal review is necessary in order
tO establish the validity of the study.
It is contrary to fact that scientists
have been prevented from reviewinq the
Auerbach-Hammond study or that any data have
been withheld. Among the qualified persons
who have already made themselves ~amiliar
with the data and who have been given
opportunity to review the laboratory
material are Dr. John W. Berg, a pathologist
from the National Cancer Institute, and Dr.
Raymond Yesner, a pathologist from the
veterans Administration. We understand that
a nu~%ber of scientists outside the
Governmen; g~ve also @one ~ver the study in
detail, and th~.~..the,,opportunity continues
~or rev~,,,ew bY oth~ri!i~er~ons~ in¢ludin~
scientists rep~.~.~en~in~ the tobacco indust:y.
Letter from William B. Lewis (ACS) to Joseph F. Cullman,
3rd, July 2, 1970 (emphasis added) (1002906536; Cullman
Cipollone Depo, Exh. 20). Tab 348. See also Letter from
William B. Lewis (ACS) to the Editor of The (New York)
Times, May 7, 1970 (May 13, 1970 issue) (announcing AC5
decision "because of the great public interest . . and
because of the advertising campaign initiated [+] by the
Tobacco Institute ~o cast doubt on the validity of the
dog study" to request the Surgeon General "to appoint an
impartial scientific body to conduct an analysis of the
Aue~bach-Hammond study data." (6013074; 65009 0445).
TaD 349.
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• . . The procedures they [Auerbach and
Hammond] have followed have been fully
~escribed in the literature: they have
issued what appears to be an adequate report
of their study; and they have opened their
data to the inspection of other scientists.
We do not know what more can be expected of
investigators, especially those with the
reputations for excellence and probity
enjoyed by Drs. Auerbach and Hammond.
Dr. Berg has told us that he has no doubt
but that the progressive changes in the
bronchial tissues of the animals studied
where as Dr. Auerbach has described them,
and that among other conditions found were
early invasive squamous cell carcinoma in
the bronchial tubes of two of the dogs.
the question at issue is whether human-type
cancer has been discovered in the lunos
of do@s exposed to ciqarette smoke, then the
answer is yes, in the view of a Public
Health Service pathologist with special
competence in cancer. This is also the
view, we ~nderstand, o£ Dr. Yesner and of
the other pathologists who have reviewed the
material.
Zt is not necessary to go to this s~udy to
support the conclusion chat ci9acetCe
smokin~ causes lun~ cancer in human beings,
T~ere was enough evidence six 7ea~s ago to
cause the Surgeon General's Advisory
Committee on Smoking and Health to come to
this conclusion, end this evidence has been
strengthened in the years since. The
Auerbach-Hammond study adds one more element
of certainty to a conclusion which the
world's medical and health authorities
already consider certain.~-~-£~
Letter from Surgeon General to Jonathan E. Rhoads, M.D.,
ACS, June 12, 1970 (emphasis added) (1002906537; Cu~Iman
Depo. Exh. 20). Tab ~50. Philip Morris later belittled
the Surgeon General's letter, describing it as an
endorsement of the "validity of this study on the basis
of hearsay reporzs." Letzer f:om J. Bowling to Professo:
B. Grawunder, August ~, 1970 (1002906440). See TaD 347.
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Even after receiving this letter, the Industry
maintained its attack upon the ACS and the soundness of
Auerbach's study. It called off its public relations campaign
only after the study was published.~''/ To this day, the
689 .
Hammond & AuerDach, Effects of Ciqaret~e Smokinq on Dogs,
21 Arch. Environ. Health 740 (Dec. 1079); II. Pulmonary
Neoplasms, id., at 754 (Cullman Depo. Exh. 24). Tab 351.
Shortly after publication of the Auerbach study, Mr.
Mloepfer authored a memorandum to Mr. Kornegay concerning
"a special industry group [which] met in New York
December i to develop suggestions for you for follow-up
to the publication in Archives o~ the "smoking-dog
reports" in which he stated:
Scientific cri.t.ique: The suggestion is that the
Ad Noc Legal Committee obtain copies of Archives
through a request to ~ from CTR (for
originals, So as to preserve the color
illustrations) and make them available promptly
to various experts who would be encouraged
individually or in ~roup$ to ezpress their
independent views of the re~oirted work in
communications to any ~ournala~hose publication
of such views would add to the "literature" on
the smoking-dog question.
Informational Memorandum from William Kloepfer, Jr. to
Horace R. Kornegay, December 7, 1970 (T 26846; 65009 2461;
Bowling Depo. Exh. 53). Tab 352. For an indication
concerning the particular purposes inspiring formation of
the "Ad Hoc Legal Comraittee" to which Mr. K!oepfer
referred, se_..fie, Letter from Horace R. Kornegay to Joseph F.
Cullman, III, Septeraber iB, 1970 (1002607139; Cullman
Depo. Exh. 21) (anticipating publication by Hammond and
AuerDach). Tab 353.
There is no indication in the record of these cases
that the industry every followed through with this
"suggestion', or, that, if it did, it eve: made the
results known.
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Industry's scientific witnesses repeat the 15-year old
allegations that Auerbach refused to permit independent
pathologists to examine his data, in particular his slides.
Curtis Judge testified he was not advised that Dr. Summers was
invited by Dr. Auerbach to examine the data. He said he would
be surprised to find out if this had really happened.
On May 7, 1970, the American Cancer Society wrote all
of the editors of the publications which carried the TI ad.
The ACS acknowledged that it refused the TI request that TI be
allowed to appoint a committee to review the findings of the
AuerDach study. The ACS, however, stated:
There has never been any restriction against
individual scientists' visiting the
veteran's Administration Hospital . . . and
reviewing the research with Drs. Auerbach
and Ha~nmond. A number of distinguished
scientists have already reviewed the
findings,z/-zl
The ACS also requested the Surgeon General to appoint a
scientific body to review the Auerbach data.~'' The TI was
aware of this offer on June i, 1970.~''"
690. May 19, 1970 and May 7, 1970 letters from American Cancer
Society. (50000 4732-4733). Tab 354.
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Jones, Day, Reavis & Pogue D~aft
D~. Sheldon C. Sommers, the present-day Scientific
Director of CT~,~'-d-~1 however, testified as follows in the
Duke and ~ cases on Decembe~ 18, 1985:
What was the nature of his [Auerbach's]
study? Are you familiar with it?
A
Yes. He used a tracheaostomized dog
mode -- these were beagles -- and into
the t[acheaostomies with the bellows
smoke. The dogs drooled mucous out of
the tracheaostomy and out of their
mouths. After the experiment came to
an end, it turned out that only five
percent of a rather small number of
dogs had what Dr. Auerbach called lung
carcinoma, and it turned out that
twenty-five percent of the controlled
beagles also had lung cancer. This has
never been emphasized. Then, the
slides, both shown as pictures in the
articles, both of the American Cancer
Society and of the publication already
mentioned, are not convincing of
cance~. The dogs showed no extension
o~ the cancer in the neighboring
StrUctUreS, no metastases, and no dog
died of lung cancer.
You seem tO be very familiar with the
study. How did you become familiar
with it? Have you talked tO Dr.
Auerbach about it?
I have not talked to Dr. Auerbach about
it, but I have attempted in those years
to be allowed to examine the slides
myself since I am also a path01ogis~.
693.
Dr. Sommers" appointment as the CTR's Scientific Director
was announced at the SAB's May 16-18, 1969 meeting. CT~
"Cohfidential ~eport, SAB Meeting, New York, New York,
May 16-18, 1969" (CTR 2926; 65008 2895; Gertenbach
Duke/Rogers Depo. Exh. 12o0-2). Se__~e Tab 142.
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Q
A
Have yo, u reguested Dr. Auerbach to
present the slides for your examination?
No, to allow me to visit his laboratory
Q
or to bring the slides or to send the
slides any way so that I could examine
the microscopic slides.
You've asked Dr. Auerbach, though, to
allow you access to the slides? I
think you started you~ answer --
Well, I made every reasonable effort to
be permitted to examine the microscopic
slides.
Has Dr. Auerbach ever offered to
present the slides to you?
A
Dr. Sommers, I'm going to hand you
Plaintiff's Exhibit No. 6 for you to
take a good at it. (Tendering Exhibit)
A (witness examining document)
Mr. Rayhill: I . • • no~e ~hat
Exhibit 6 does not have a CY~ nun~er. Could
you ~ell us for the record where this came
from?
Mr. Hanks: These were provided to the
plaintiffs by Dr. Oscar Auerbach.
Mr. Rayhill: And you represent that
Exhibit 6 came out of the files of Dr.
Auerbach?
Mr. Hanks: Yes
BY MR. HANKS:
Dr. Sommers, can you tell us what
Plaintiff's Exhibi: No. 6 is?
A well, I best read it, hadn't I?
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Q
A
A
Yes.
There is no heading on the paper, no
o:ganization, institution, or return
address on this photocopy. It is dated
• June 3, 1970, 151B,. "Dr. Sheldon ?C.
Sommers" --
"Dr. Sheldon C. Sommers, Director of
Laboratories, Department of
Pathology." That's a totality. Pardon
me. "Lenox Hill Hospital, 77th Street
and Park Avenue, New York, New York.
Dear Charlie, we hear that you
have some questions as to the nature of
the lesions which we found in the lungs
of our 'smoking dogs' If so, your
impression must be based upon the study
of a few black and white photographs of
the lesions in questions. Surely you
will agree with us that it is easier to
form an opinion by microscopically
examining histologic sections than by
looking~ ~t a black and white print.
Several histoloqic sections have
been prepared from each lesion and we
have shown them to a number of highly
qualified pathologists, including some
of our mutual friends. We would have
been glad to show them to you at any
time.
The purpose of this letter is to
invite Zou to visit our laboratory and
Examine the sections.
with best regards, sincerely,
Oscar Auerbach, M.D." - not signed,
typed - "Senior Medical Investigator.
K. Cuyler Hammond, SC.D.," - not
signed - "Consultan~ to the Senior
Medical Investigator." That ends the
letter.
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Jones, Day, Reavis & Pogue Draft
Q
D~. $ommers, do you recognize this
letter?
A No.
Q Have you ever seen it before?
A
It's a photocopy, but I've never seen
it before.
Q You did not receive a copy of it?
A NO.
Q
I'm going to hand you Plaintiff's
Exhibit No. 7 to take a look at.
A (witness examining document)
Q Dr. Somme t s, I I
Mr. Rayhill: Before you ask him any
questions, could you tell us where you
obtained Plaintiff's Exhibit 77
Mr. Hanks: This was not something that
we obtained from CTR. Dr. Auerbach has
provided us a copy of it.
BY MR. HANKS:
Q Dr. Sommers, can you tell us what this
is, Plaintiff's Exhibit No. 7?
A It's a photocopy of a letter, which is
addressed to Oscar Auerbach, M.D.; and
it's signed by Dorothy Gordon.
Q Who is Dorothy Gordon?
A Dorothy Gordon is presently Chief
Laboratory Secretary, Lenox Hill
Hospital, Pathology Lab.
In June of 1970 was she your secretary?
Q
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I believe so.
Have you eve: seen a copy of this
lette~ before?
Not to my knowledge.
Would you mind just reading it into the
record, please?
Mr. Rayhill: It's your exhibit. We've
neve~ seen it before. Why don't you read it
into the record.
Mr. Hanks: On the top of Exhibit 7
it's got the heading of Lenox Hill Hospital,
and it's got the address. It's dated
June ii, 1970. It's addressed to Oscar
Auerbach, M.D., Veterans Administration
Hospital, East. Orange, New Jersey, 07019.
"Dear Dr. Auerbach, thank you for your
letter of June 3 with regard to your
experiment with 'smoking dogs'.
Dr. Sommers is out of town unti~
June 29. I am sure he will be in touch with
yOu aS soon aS possible after he returns.
Yours truly, Dorothy Gordon," and
there's a signature Dy Dorothy Go~don also,
"Secretary to Dr. Sommers."
BY MR. HANKS:
Q The letter says you were out of town
until June 29. Do you remember being
out of town on June Ii, 19707
A
' Yes. As refreshed, I was in Australia
at that time, and I received a cable
with reference to that.
You received a cable with reference to
what?
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Q
Q
A
A
A
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Well, what should I say? In reference
to my being allowed to examine some
microscopic slides of Dr. Auerbach.
Whom did you receive the cable from?
I believe it was from the President of
Council for Tobacco Research.
would you have a copy of that cable?
I believe not.
What was the nature of the cable, if
you remember?
The nature of the cable was to the
effect that permission on the part of
Dr. Auerbach ~or you to review slides
from the do~ experiment has been
withdrawn.
Did you send Dr. Auerbach a cable from
Australia?
I don't recall.
How about from New Zealand?
I ~on't recall.
Why don't you take a look at Exhibit
No. 8?
(Witness examining document)
BY MR. HANKS:
Q Dr. Sommers, have you taken a look at
Plaintiff's Exhibit No, 87
BY M~. HANKS:
6 Have you looked at it, Dr. Son~ners?
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Yes.
Do you know what it is?
Yes.
Would you tell me what it is?
It's a --
Mr. Rayhill: It's your exhibit. I
want you to read it into the record.
M~. Hanks: Plaintiff's Exhibit No. 8
is headed "Western Union.: It's got a date
on it of June 16, 1970. It appea~s to be a
telegram. It's got the location Auckland,
New Zealand. It was sent to Dr. Oscar
Auerbach, East Orange, New Jersey. The text
of it reads: "Am informed of your
invitation for me to review your and
Ha~ond's Beagle experimental material stop
believe desirable also to permit other
independent e,xperts to see the slides and
protocols sing~, ~ ReS#~r~h 9~reCtOr Council
for Tobe,CcORiese~;¢h the ~evtew ~/ me alone
June -" I can't ma~e out whethe: that's
26th o~ June 25th -- "would appreciate
further opportunity ~Or discussion Re~a~ds
~.C. Son~ners."
BY M/~. HANKS:
NOw, can you tell me what Plaintiff's
Exhibit No. 8 is?
A It's a photocopy of western Union
Telefax, T-E-L-E-F-A-X.
Q Did you send this telegram to Dr. Oscar
AuerDach?
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A
A
I believe so.
Were you in Auckland, New Zealand on
June 16, 19707
I can't remember but can (ind out.
Were you in New Zealand in June 1970?
I believe so.
After you returned from your New
Zealand trip, did you ask Dr. Auerbach
to see his slides?
A No.
Possible Industry Responses
The Industry probably gave more attention to
Auerbach's study than it would have otherwise received. Even
though the Industry contested the findings, it repeatedly
placed the fac~ that an independent researcher found thaC
inhalation of whole cigarette smoke produced human-like lung
cancer in the media. Thus. all the Industry did was to
694 .
Sommers Pepo. at 154-71 (emphasis added).
NOT_.~E: Dr. Sommer:s testimony effectively undercuts
one of Dr. Colby's principal criticisms of Auerbach'$
experiment: that Dr. $ommers told him (on the basis of
looking at Auerbach's data) that "the responses were not
clearcut invasive cancer." (Colby Barnes Depo. at
243-45).
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emphasis an adverse finding.'''t No plaintiff could have
reasonably ignored the Auerbach study and chosen to be
"reassured" by this Industry attack. In any case, the Industry
should ~e able to demonstrate that the plaintiffs never heard
of either the smoking beagles or the Industry response.
The circumstances surrounding Dr. Sommers" apparent
ignorance of his opportunity to review the Auerbach slides
needs investigation. It appears either Dr. Sommers was
incorrect in his deposition testimony or that someone at TI o[
CTR prevented Dr. $ommers from seeing the slides. It is
difficult to judge which scenario is worse. In any case, the
real hoax appea~s to be one by TI on the public. A forthright
confession of the facts is probably the best response.
Other than the fact that the Industry was offered the
slides, the Industry response which is to ~eport the smoking
beagles controversy in detail is not inappropriate. It appears
the Industry was unfairly ambushed ~y a report that was not
entirely valid. The detailed criticism of the Auerbach study
in contrast to faded memories and lack of knowledge on other
695.
TI conducted a study of reactions to the TI ads.
Two-thirds of the reaction was negative. For instance
one respondent said: "I didn't pay too much attention to
it. I feel it is just propaganda on the part of the
tobacco companies." Se__e Research & Forecasts, Inc.
"Reactions to Tobacco lnstitute Advertisement," May 1970
(50000 4737 at 4748). Tab 355.
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smoking and health issues, however, provides a basis for the
plaintiffs to a~gue that the Industry witnesses lack
credibility. Selective memory of favorable events should be
avoided.
The TIRC conducted inhalation tests ten to fifteen
years before the Auerbach study was released. In late 1958,
the chairman of TIRC, Timothy Harnett announced: "Animals that
have been induced to inhale tobacco smoke have failed to
develop lung cancer."~'~" The studies conducted by Cecilie
and Rudolph LeuchtenDe~ger found that mice exposed to whole
cigarette smoke did not develop lung cancer.~''" These
studies may or may not withstand scrutiny of outside evaluation
and review.
Later studies also have failed to produce sguamous
cell cancers in the lungs. Therefore, the ~ndustry's vehement
reac:ion may have been justified.
696.
697 .
Newspaper article, "Lung Cancer Research Will Gee '59
Emphasis," Anderson Mail, Decembe~ 25, 1958 (50050
7735). Tab 356.
"Smoking Mice," Scientific Research Reports, January 1960
(50050 7764). Tab 357.
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". !
F. Other Efforts to Discredit Prominent Smoking and Health Critics.
Plaintiffs Contention/Supporting Testimony and Documentation
Legal counsel for some of the major tobacco companies
apparently.engineered ~ plan to "embarrass" Dr. Hammond. A '
1971 note from C. B. wade (RJRT) notes that "Dr. Sterling is
the man 5hinn and Hardy are working with on this project to
e~barrass Hammond and raise questions in scientific
community.~''" Correspondence between Dr. Sterling and Dr.
Han~nond indicates the project was at least partially
implemented. The episode supports the inference that the open
question was without scientific basis.
Possible Industry Reoonse
Very little is p~esently known about this episode.
Full factual development is a predicate to attempting to defuse
G. Imprope~ Pressure on the Media
Plaintiffs' Contention
The tobacco industry is the single largest advertiser
in the United States. As a consequence of this -- and
particularly since the electronic media advertising ban, after
which dollars theretofore spent on television and radio
698. MemOrandum from CBW, May 27, 1971 (65000 5918) (produced
and selected in Barnes). Tab 175.
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advertising flowed to the print media -o cigarette ads are the
lifeblood of many newspapers and magazines. Moreover, both the
Industry and the print media are well aware of this.
Consequently, the tobacco industry is well-positioned to exert
its financial influence -- subtly or overtly -- in order to
enlist the media to support it in its opposition to a variety
of public health initiatives, such as the curtailment or
prohibition of cigarette advertising. In addition, an
empirical case can be made that the influence of the Industry,
although rarely, if ever, recorded in writing, has caused the
media to refrain from publishing stories which would fully
educate the public about the most preventible cause of death in
our society, cigarette smoking.
Supportin@ Evidence an~ Documentation
The documents a~e replete with instances in which the
tobacco.industry, acting principally through the Tobacco
Institute, initiated direct contact with publishers in order to
enlist their efforts in opposing restrictions on cigarette
advertising. There are other documents which record meetings
of TIRC and TI officers with media representations as well.
These, however, appear to have taken place in order to provide
the publisher with the Industry's viewpoint on particular
issues.
a. "Motivational" Meetings and
Correspondence
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A March 1963 memorandum Of a
conversation between George Allen
(TI) and Robert Swezey, director
of the Code Authority of the
National Association of
Broadcasters, indicated that Mr.
Swezey had heard of potential
congressional efforts to limit
tobacco advertising on television
to "adult listening hours." Mr.
Swezey indicated that he "p~anned
to draft something very tentative"
and that "the NAB was most anxious
to work in collaboration with the
tobacco industry in this
regard.-~''t
A November 14, 1968 letter from
Earle Clements, President of TI,
to the Director of Code Authority
of the National Association of
Broadcasters which was a "formal
complaint under the NAB Radio Code
of Good Practices." The letter
alleged four anti-smoking
announcements were "false,
misleading and deceptive." The
other info~tioa ~o substantiate
the complailnt.!2"A"
The November 4, 1970 minutes of
the Communications Committee of T~
indicated that Bowling (PM) had
addressed the American Newspapers
Publishers Association. ANPA
board members had urged that their
"top staff people" receive
Letter from George v. Allen to Joseph F. Cullman, 3rd,
March 22, 1963 (I005040430; 65009 2499; Bowling Depo.
Exh. 58). Tab 358.
Letter from Earle C. Clements to Stockton Helffrich,
November 14, 1968 (50002 3010). Tab 359.
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briefings on the smoking and
health '''"
controversy.~
A series of TI documents offered
publishers material, which TI
urged that the publishers run
free-of-charge, as a balance to
anti-smoking material which was
then being run.!L~i/ Few
publications accepted the
offer.2ta-t/
Also in 1971, TI undertook to
determine from the Magazine
Publishers Association: "What
magazines, if faced with a iOSS O~
cigarette advertising, would find
themselves in a net loss revenue
position?''"*" Advertising
expenditure figures were sought
from individual companies as
well.'°'" The express objective
of the latter request was to
motivate the publishers to write
their congressmen and editorialize
against a proposed I~2C print media
advertisin~ ban. In his
deposition, however, Kornegay
701.
702 o
703 .
704 .
705,
Communications Committee Minutes (As Approved 12-15-70)
Wednesday, November 4, 1970, at the Institute Office
(04209270; 65005 1842). Tab 360.
The Tobacco Institute, Inc. Documents Offering publishers
material from William Kloepfer, Jr. to "It May Come As a
Surprise, Mr. Publisher .... " undated (1003041126-1!31).
Tab 361.
Project Report: Donated Smoking/Health Advertising, June
1971 (1003041125). Tab 362.
Letter from Marvin M. Gropp to Norman $. Halliday,
October I, 1971 (T 002694). Tab 363.
Draft Letter to "Dear Jim," undated (T 010400-412). Tab
364.
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?08.
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indicated that these figures had
been collected only "for
curiosity," and not to enlist
assistance in opposing the
FTC.'-L~-~ When confronted with
the document which expressed a
political motive, Kornegay
testified that such a putpoSe was
not his and was inconsistent with
TI policy.J-LI/
An October 1974, letter from
Horace Kornegay to Stanford Smith,
President of the Newspaper
Publishers Association, cites a
recommendation of the National
Cancer Advisory Board that
cigarette advertising be banned.
Mr. Kornegay urged wide
dissemination of the letter and
noted that "neither of uS as a
mat:co of principle can continue
to permi~ such unchallenged
attacks on advertising."'"'~
In March 1974, Horace Kornegay
addressed the Government Relations
Comirtee of the American
Newspaper Publishers ASsociation.
In pre~a:ation therefor, a
memorandum was prepared for him
which detailed the cigarette
advertising revenues of the
attendees.,"'/ In his
Kornegay Depo. at 395-96.
Id. at 397-99.
Letter from Horace R. Kornegay to Stanford Smith,
President Newspapers Publishers Assn., October 29, 1974
(T 002388). Tab 365.
Confidential letter to H. Kornegay in preparation for
Kornegay's talk with newspaper representatives regarding
cigarette advertising in "74, undated (T 004317). Tab
366.
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713 .
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deposition, Kornegay testified
that his message to the group had
only stressed the freedom to
advertise.''°~
In 1977, The American Cancer
Society announced its "Target 5"
anti-smoking program and organized
a number of "£orums" around the
country concerning smoking and
health. In response, Bowling met
with Jack Kauf~man Of the
Newspaper Advertising Bureau who,
in turn, wrote a number of its
members and urged them to meet
with Bowling.!-L-L/ Some
In October 1978, Kornegay
addressed the Magazines PuDlishers
Association Convention in
Arizona. He informed the
publishers that cigarette revenues
accounted for 10 percent of all
advertising revenues.''-Lu!t In
his deposition, Kornegay explained
that his purpose had been to
demonstrate that the publishers
had an interest in their ability
Id.
Letters from Jack Kauffman to various members of the
Newspaper Advertising Bureau, May 4 & i0, 1977 (003866).
Tab 367. In his deposition, Bowling did not specifically
recall contacting publishers in connection with
"Target 5." Bowling Depo. at 150. He also denied that
he had discussed the advertising revenue figures with the
publishers, I__d. at 156.
Letters to Jack Kaufman from various members of the
Newspaper Advertising Bureau regarding Jim Bowling,
May 9-12, 27, 1977 (003864). Tab
Kornegay Depo. Exh. 52. Tab 369.
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714 .
715.
716.
to continue to do business with
the tobacco industry.--"'"
In 1978, HEW Secretary Califano
and FTC Chairman Pertschuk
apparently appealed to the
bruadcast media to provide more
.time for public service
announcements. TI responded to
this by running a "Dear
Broadcaster" open letter in
Broadcastino, which asserted that
the government's claim was based
"more on fantasy than
fact."''s~ TI thereby sought to
"make common cause with the
broadcasters particularly in terms
of their extending welcome mats
for our spokesmen."JL~-'~
In 1980, Marvin Kastenbaurm, the
"Director of statistics" at
wrote the editor of Science
magazine after he was alerted to
the imminent publication of
paper on indoor pollution.
Kastenbaum attacked the author of
the paper l.d his "one-sided and
scien~Ifically faulty presentation
on the!clalm effects of cigarette
s~oke on non$~okers."
Kastenbaum's letter, in essence,
stated the upcoming a:ticle was
Kornegay Depo. at 423-24.
Letter from William Kloepfer, Jr. to Messrs. Ave,
Blalock, Bowling, Pickett, Provost, Shinn and Tucker,
June I, 1978 enclosing June 5, 1978 "Dear Broadcaster"
letter from William F. D~tyer (T 0015832). Tab 370.
Letter from William Kloepfer, Jr. to James C. Bowling,
May 5, 1978 (T 0015828). TaD 371.
- 431 -
6~~ <-e69"7
7].7.
718.
719.
720.
721.
722.
Confidential
Attorney Work Product
Attorney-Client Privilege
Jones, Day, Reavis & Pogue Draft
not suitable for publication in
Science. ' ' '~
In 1981, the American Medical
Association wrote to publishers
and asked them to refuse
advertising for tobacco products.
Life leaked the letter to
~--6~'[ing,"'~who in turn wrote
the AMA I~mediate Past President
opposing the AMA action.-- In
his deposition, Bowling ezplained
that this was done because he
viewed the letter as a part of a
"personal crusade" by the AMA
President,!//~
In his deposition, gornegay also indicated that
He had met with a Vice-President
of Tim_._~e to seek his help
concerning proposed restrictions
on cigarette advertising.
Korne~ay found him to be
-receptive.-!/-t"
He had met with ANPA concerning
the 1911~I~= Staff Report.'--~t"
Letter from Marvin A. gastenbaum to Philip H. Abelson,
April i0o 1980 (500881643). Tab 372. This document was
located in the ReyT~olds files. It is not among the
documents used by plaintiffs but presumably was produced
by TI.
Letter from Charles A. Whittingham to James C. Bowling,
May 21, 1981 (65009 2168; T 003569). TaD 373.
Letter from James C. Bowling to Hoyt D. Gardner, May 26,
1981 (T 003567; Cullman Depo, Exh. 34). Tab 374.
Bowling Depo. at 365-66.
Kornegay Depo. at 425-26.
I_~. at
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725.
726 .
- He had met with representatives of
the Outdoor Advertising
Association of America concerning
threatened restrictions on
advertising.'--~!"
Znformational Meetings and
Correspondence
- A June 1956 letter from W. T. Hoyt
(TIRC) to Henry Lure of Lif_~e
sough~ to set up a meeting between
Mr. Lure and Dr. Little. The
apparent impetus ~or the meeting
was on anti-smoking article which
had appeared in Lif.___~e.
- A June 1958 telegram from Hill &
Knowlton informed Cullman
that a Newsweek editorial
assistants had indicated that the
"story will try to avoid
discussing health charges."'-3-~/
- A March 1958 letter from Bowling
(PM) to Cullman chronicles a
meeting *several yea~s ago"
between Dr. Little and Tim._~e and
Life representatives. A
"scientific progress report" to
those publications by Dr. Little
is proposed.!/-~"
Id. at 437.
Confidential letter from W.T. Hoyt to Henry R. Lure,
June iI, 1956 (1005039031). TaD 375.
Confidential Western Union Telegram from Hill and
Knowlton, Inc. to Joseph Cullman, 3rd, June ii, 1958
(i005036802). Tab 376.
Confidential lette: from Jim Bowling to Joseph F.
Cullman, 3:d, March 17, 1958 (00026075995; Cullman Depo.
Exh. 4A). TaD 377.
433 -
727.
728.
729.
Confidential
Attorney Work Product
Attorney-Client Privilege
Jones, Day, Reavis & Pogue Draft
A May 1959 letter from James
Monahan (Reader's Diqest) to
Benjamin Few (L&M) sought to
obtain information for a
forthcoming article. This letter
led to the tour of L&M's
manufacturing facilities by Mr.
Monahan.'--L!~
A January 1960 letter from Richard
Darrow (H&K) to Max A$coli (The
Re,otter) took issue with an
article published in that journal
by John Kenneth Galb=aith. It
advised Mr. Ascoli of the
activities of TIEr.
A December 1963 memorandum from
H&K to Bowling indicates that
informational material concerning
TI was sent to selected media
personnel.'z'~
A March 1965 letter from Carl
Thompson (H&K) to various industry
executives indicates that an
Esq~ire re,otter, Walte~ Ross, was
writing a story concerning the
effozt "to ~evelop a "better'
cigarette." H&K had alceady made
contact w~th him. A handwritten
"Memorandum Pertaining to the Visit Of Mr. James Monahan,
Senior Director, The Reader's Digest, On Thursday,
June ~5, 1959", from James Monahan to Benjamin F. Few,
May 25, 1959 (65005 2836). Ta~ 378.
Letter from R.W.D. to George Weissman, January 15.
enclosing letter from Richard W. De=row to Max Ascoli,
Editor The Re~orter, January I~, 1960 (1005039489). Tab
Confidential Informat~ona! Memorandum "Attached
Background Materials" from Hill and Knowlton, Inc. to
James C. Bowling, December 18, 1963 (1005038489). TaD
380.
- 434
731.
732 .
733 .
Confidential
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Attorney-Client Privilege
Jones, Day, Reavis & Pogue Draft
note indicates that the reporter
had been referred to George Allen
of TI.
A May 1966 letter from Provost
(L&M) to Dr. Kensler (ADL) notes a
prospective meeting between
Provost and Walter Ross. The text
indicates that Ross ilso intended
to see Wynder and others.
In September and October 1967,
respectively, TI furnished
materials to James J. Kilpatrick,
then a columnist for the
Washington Eventing Star. and to
Barton's magazine. In the
resulting articles, Kilpatrick
attacked government moDility
studies and Barton's took issue
with the federal government's
assaults on the tobacco
industry.!-13-"
A November 1967 letter from Car!
Thompson to Earle Clements (TI)
informed Sen. Clements that Tim._._~e
was preparing a major article
conce:ning the tobacCO industry
and wanted to interview him- It
also noted H~K's efforts to find
out what the article would be
a~out.2~J-"
Confidential letter from Carl Thompson to Messrs. Haas,
Hetsko, Ramm, Russell, Smith, Yeoman, Bass, Blalock,
Bowling, Heimann, Provost and Wade, March 8, 1965
(1003043953). Tab 381.
Letter from Dan Provos~ to Charles J. Kensler, May 27,
1966 (Provost Depo. Ex~. 2). Tab 382.
The Barton's article was later reprinted as a
at 48.
Letter "Time Ma~azine - Major Article" from Carl Thompson
to Earle C. C]emen:s, NovemDer 7, 1967 (T !3152). Tab
383.
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c. Intimidatinc the Press
No documents have been located which indicate that the
tobacco industry ever attempted to use its financial clout to
suppress anti-smoking stories in any publication.'--t~"
Nonetheless, it is a recurring theme at plaintiffs" seminars
that publications which receive substantial revenues from
cigarette advertising do not aggressively cover anti-smoking
issues.!-u~"
Possible Industry Response
It may well be that there is no "optimal" industry
response to plaintiffs" arguments concerning the media issue.
Instead, the industry may wish to point to the "facts of life"
in attempting to influence legislation or other initiatives
734 .
735 .
Instead, depesition testimony imdioates that H&K would
encourage magazines to publish articles about the "other
side" of the S&H controversy, Thompson Depo. at 217-18,
and try to "influence" stories by providing the authors
with information, both in situations in which the authors
have requested it and in which H&K had learne~ of an
article in progress and provided information without a
request. Id. at 235, 237.
An illustrative passage, taken from Tye, A Note on Public
~o~icy Issues in The Cigarette Industry, at 33 (April 15,
1985), is included at TaD 384. Dr. Elizabeth Whelan,
from whom the passage quotes, is the leading ~roponent of
this view. Se_._~e, Schwartz, The Relevance of Overpromotion
in Tobacco Produc~s Litigation, 1.4 T.P.L.R. 4.~1, at
4.44 (1986). Tab 7. See also Cigarette Advertisinc and
Health. New Eng.. J. Medicine, February 7, 1985, at
~84-88. Ta~
- 436 -
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which have been openly aimed at the industry's jugular, while
displaying righteous indignation at the initiatives themselves.
The response begins with the premise that cigarettes
are a lawful consumer product which Congress had determined in
1965 and on several occasions thereafter should continue to be
marketed, albeit subject to certain unique restrictions.
That
basic decision has not been disturbed. By responsibly
marketing its lawful product within those restrictions, the
tobacco industry is exercising its First Amendment right to
engage in protected commercial speech. It is the FTC and
private health agencies which have periodically sought to upset
that compromise scheme and, by seeking to legislate or
ctherwise enforce their own version of what is good for the
public, stifle the industry's freedom of expression. To combat
these proposed deprivations of constitutional rights, the
tobacco industry quite naturally sought allies. It found them
in the media, a group which is particularly sensitive to
initiatives which implicate censorship.
In response to plaintiffs" argument that magazines and
newspapers which accept cigarette advertising soft-pedal
anti-smokin~ issues, the Industry should simply pu~ plaintiffs
to their proof. If it is empirically true that, for example,
Newsweek does not carry a great many anti-smoking articles, it
may be that that is because much of the anti-smoking "news"
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circulated by anti-smoking groups ix simply old news. In any
event, for this argument to succeed, plaintiffs would not only
have to impugn the integrity of several major publications, but
also establish that this "suppression" led to an uninformed
public. Polling data clearly indicate the contrary.
H. Impro~r Pressure on the Insurance Industry
Plaintiffs' Contentions
No sector of the American economy has been exempt from
the organized coercion of the tobacco industry. Even the most
indirect allegations of the adverse health effects of cigarette
smoking seem to incite the Industry's basest survival
instincts. A classic example concerns life insurance.
Beginning in 197], certain life insurance companies
recognized a competitive advantage in offering to nonsmokers
lower premiums on life insurance policies. Such a p~emium
differential is based upon both actuarial and financial truths,
i.e_.__=, that nonsmokers will live longer and be susceptible to
fewer diseases than nonsmokers, such that the reimbursable
medical costs incurred by them will be less than for smokers.
This differential does not penalize smokers; rather, it
recognizes reality and rewards nonsmokers for their selection
of a healthier lifestyle.
Even this minor discount, however, drew the ire of the
tobacco industry. Publicized nonsmokers' discounts, after all,
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would provide additional infoEmation to the smoker concerning
the ill effects of smoking. For several years, therefore, on
each occasion in which a nonsmokers' discount was brought to
its attention, the tobacco industry brought to bear on the
offending insurance company the organized might of its powerful
lobby. In addition, the Industry sought to attack the validity
of the underlying actuarial data, much as it has historically
sought to impugn the scientific studies which have linked
smoking with disease.
Perhaps the most cynical part of this whole affair,
however, involves the position of Loews Corporation, the parent
corporation of Lorillard. Loews is also the parent of CNA
Insurance, a company which offers nonsmokers discounts. Thus,
while touting the "Open Question" position through one of its
subsidiaries, Loews also pursued the nonsmokers through
another, thereby, at least implicitly, accepting the damning
actuarial data upon which it was based. Note that Franklin
Life Insurance Company is an affiliate of American,'''t
although it is not known whether Franklin offers nonsmokers
discounts.
Although the two positions are inconsistent on the
issue of smoking and health, they are consistent in seeking to
exploi~ the consumer for financial gain.
736. Heimann Rooer._____~s Depo. I at 39.
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Supporting Testimony and Documentation
The earliest nonsmokers' discount controversy
documented in the production concerned automobile insurance,
not life insurance, rates. The Farmers Insurance Group,
apparently a midwestern concern, had advertised and offered
lower rates to nonsmokers than smokers apparently based upon a
Columbia University survey which concluded that nonsmokers have
fewer automobile accidents than smokers, various Better
Business Bureaus took issue with these statistics, apparently
prior to and independent of tobacco industry involvement. The
documents indicate that the Industry was ready to intervene in
the dispute, but did not have to do so."-J-/"
The first extensively documentedJJ-~z life insurance
battle involved Allstate in 1979. The documents reveal that
- The Leo Burnett Aqency informed Bowling
(PM) of the discount and provided him
with copies of the advertising.
Bowling informed Kloepfer (TI).!-L~/
737 •
738.
739.
Letter from William Kloepfer, Jr. to Dennis Durden, May
i0, 1975 (T 0016860; T 0016865-~70). Tab 38~.
~n a January 25, 1973 speech, Kornegay had spoken of TI's
success in "prevent[ing] a major insurance company from
introducing a non-smokers policy." Kornegay Depo. Exh.
63. Tab 387. Although the company was unnamed, in his
deposition, Kornegay recalled that TI's first involvement
in the issue concerned an offering by Metropolitan Life.
I__d. at 488.
Letter from dames C. Bowling to William Kloepfer,
July 12, 1979 (65009 2446-2452; T 0016872-878 Bowling
Depo. Exh. 48). Tab 388.
- 440 -
6S1~79"706
741.
742.
743 •
744.
Confidential
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Kloepfer responded that "[W]e will see
what we can do promptly. ~
Kornegay thereafter informed the TI
Executive Committee of the situation.
He noted that tobacco state governors,
insurance commissioners, and members of
Congress and tobacco organizations were
being alerted and that Ross Millhiser
was going to contact the Allstate CEO.
Allstate's parent company, Sears,
Roebuck. was also targeted.'-~-L" In
deposition, however, Kornegay stated
that no political pressure was brought
to bear on Sears.
Bowling characterized the rate
structure as "a total phony."
Kastenbaum (TI) raised questions about
Allstate's definitions, e.g., what does
"work at keeping healthy" mean, and
concluded that premiums would probably
be raised for al___!l policyholders.--
LeTter from William Kloepfer, Jr. to James C. Bowling,
July 18, 1979 (T 0016871). Tab 389.
Letter from william Kloepfer, Jr. to James C. Bowling,
July iB, 1978, attachment: Confidential "Remarks of
Horace Kornegay, 70th Executive Committee Meeting,
September 13, 1979" (65009 2454-2459; T 0016871;
T 004854-858; Bowling Depo. Exh. 50). TaD 390.
Kornegay Depo. at 508. He indicated that T~ was
satisfied with having had the opportunity to meet with a
Sears vice-President. Id___=.
Letter from James C. Bowling to William Kloepfer, Jr.,
July 23, 1979 (T 0016869). T&D 391.
Letter "Lower Insurance Rates for Healthy Americans,"
from Marvin A. KastenDaum to w. Kloepfer and
T. Frankovic, July 24, 1979 (T 0016879). Tab 392.
441 -
651~579707
745 .
746 .
747 .
Confidential
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A memorandum (no author indicated;
probably Kloepfer) indicates that a
further factual investigation
concerning the actuarial soundness of
the discount was needed. Possible
courses of action, including approaches
to the insurer and/or its advertising
agency and complaints to state
insurance authorities, are outlined.
Finally, it is suggested that Shook,
Hardy and Covington & Burling be
consulted.
A memorandum from Panzer to Kloepfer,
responding to the memo noted above,
notes ~hac the FTC had recently held
hearings on life insurance cost
disclosure and that there were then
efforts underway in the Senate to
repeal the McCarran-Ferguson Act and
place regulation of the insurance
industry under federal control.
A memorandum from Kleopfer to Frankovic
reports the results of TZ's
that "there is a ~ood l~keli~od tha=
any policy offered no~ at 'r~uced
rate' is genuine, rather than amounting
to a raised rate for smokers and only a
comparably lower rate foe nonsmokers."
The Tobacco Growers Information
Committee, I:c., addressed a le~te: to
Memorandum "Insurance Policy Assignment," to F. Panzer,
M. Kastenbaum and T. Frankovic, July 17, 1979
(T 0016865-867), Tab 393.
Memorandum "Insurance Project" from Fred Panzer to Bill
Kloepfer, August 3, 1979 (T 0016879). Tab 394.
Memorandum "Insurance Assignment" from William Kloepfer,
J[. to Tom Frankov~c, August 15, 1979 (T 0016888-889).
Tab 395.
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tobacco producers, informing them of
the Allstate discount. It claimed that
Sears, Roebuck was "now turning on us"
and urged a letter-writing campaign on
the issue.'-.'/ A memorandum from
Kloepfer to Frankovic asserted that TI
had learned of this letter from a
"broadcast media source" and that,
although TI "provides substantial
support to TGIC, but it does not have
any position on the TGIC board nor does
it participate in TGIC policy
decisions.-~'-Li!"
In 1980, Occidental Life advertised lower life
insurance rates for nonsmokers. Its ads cited statistics which
alleged that smokers had a "higher death rate at all ages" than
nonsmokers. The headline read "Stop smoking and breathe
A January I0, 1980 memorandum from
Kastenbaum to Bowling contested the
statistics cited in the ad.'--~-L,
Ironically, the principal authority for
Kastenbaum's position was the 1979
Surgeon General's Report.
748 .
749 .
750.
751 .
Letter from Billy Yeargin to Tobacco Producers,
Septenfl3er I0, 1979 (65009 2460-246!; T 0015573-574;
Bowling Depo. Exh. 52). TaD 396.
Memorandum from William Kloepfer, Jr. to Tom Frankovic,
September 17, 1979 (T 0015572). Tab 397.
Advertisement "Stop Smoking and breathe easier. (A
Healthful Reminder from Occidential Life)', undated
(T 00630-631). Tab 398.
Confidential Memorandum "Advertisement by Occidential
Life for Reduced Non-Smokers Insurance Rates --
PRELIMINARY COMMENT," from Marvin A. Kastenbaum to
james C. Bowling, January i0, 1980 (T 003596). Tab 399.
- 443 -
651579"709
752 .
7S3.
754 .
755.
Confidential
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Three weeks later, Kornegay wrote the
President of Occidental Life and cited
these alleged errors. He noted t~at
such advertising was "a disservice to
the public as well as to the hundreds
of thousands of individuals earning
their livelihood in an industry ~hich
contributes some fifty billion dollars
annually to the U.S. Gross National
Product.-'~"
The Second Vice President of Occidental
responded to Kornegay and identified
the source of the statistics as the
American Cancer Society. He indicated
that he would discuss Kornegay
objections with the ACS.
Kornegay, in turn, promptly responded
by pointing out for Occidental the
strong anti-smoking bias of the
AC5.!-L~" This letter was a greatly
muted version of a draft which had been
prepared for Korne@ay and cleared Dy
Shook, Hardy. The draft had cited
three "transgressions" of the ACS,
including a discussion of the
affair, which it described as ~he "most
abusive single episo~ in ACS" campaign
against tobacco,"'-Lk"
Confidential letter from Horace R. Kornegay to Mino T.
Lake, January 31, 1980 (T 000627). Tab 400.
Letter from Robert w. Graf to Horace R. Kornegay.
February 28, 1960 (T 000625). Tab 401.
Letter from Horace R. Kornegay to Robert W. Graf,
March 6, 1980 (T D00623). Ta~ 402.
Memorandum from George E. Schafer, Jr. to Mr. Kornegay,
undated, attachment: Confidential draft letter to
Mr. Graf, undated (T 003522). TaD 403.
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Attorney-Client ~riv~le~e
~ones. Day. ~eavis ~ Po~ue D~af~
Also in 1980, TI was alerted by the Virginia Tobacco
Company that J.C. Penney was offering a ten percent nonsmokers"
discount.!~-~/ Together with a proposed response to Virginia
Tobacco, Panzer suggested to Kornegay that he "might want to
organize an effort similar to that used with Sears."'-J-l/ That
=effort" apparently refers to the mobilization of tobacco state
governors, congressmen, insurance commissioners, and growers
discussed earlier.2J-z~
The final documented involvement of the tobacco
industry in the insurance business involved a paper prepared
for the 1980 Transactions of the Society of Actuaries by two
employees of the State Mutual Life Assurance Company of
America. Perhaps influenced by the InduscrT"s oRg.~ ho~c
companies, State Mutual provided T! with a draf~ of the paper
for comment. Kastenbaum of TI did comment on the paper and,
perhaps not surprisingly, was the single dissenter from the
paper's fundamental thesis that there is a large difference in
756.
757.
758.
Confidential letter from H. S. Meade to Horace R.
Kornegay, November 21, 1980 (T 004401)° Tab 404.
Memorandum "JC Penney Insurance" from Fred Panzer to
Horace Kornegay, December i, 1980, attachment: Proposed
letter from Horace Kornegay to H. S. Meade, December i,
1980 (T 004400, 004399). TaD 405.
text accompanying nose
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the mortality of smokers and non-smokers.!/-z/ Kastenbaum
appeared satisfied that he had wrested some concessions from
the authors"'°" and that his comments had appeared together
with the paper in Transactions.!-ti~" '
Curtis Judge testified that.CNA, one of Lorillard's
sister companies, offers nonsmokers a discount on life
insurance premiums.'-il/ Thus, Loews has specifically
recognized the validity of the health claims when it is
profitable to do so but refuses to admit or recognize the
validity in the cigarette context. Loews is attempting to play
both sides of the controversy at the same time. This fact
strongly undermines the validity of the Open Question,
especially the position that statistical association is valid
only to justify "more research."
759.
760.
761.
762.
Letter from Michael J. Cowell to Marvin A. Kastenbaum,
September 16, 1980, attachment: "Morality Differences
Between Smokers and Non-Smokers," by Michael J. Cowe!l,
FSA and Brian L. H!rst, FeA, "Author's Review of
Discussion," undated (T 000577-604). Tab 406.
Confidential letter "Lower Life Insurance Premium for
Nonsmokers" from Marvin A. Kastenbaum to Horace R.
Kornegay, October 16, 1981 (T 000667-668). Tab 407.
Confidential letter "Status Report - Nonsmoker Insurance
Premiums - State Mutual Manuscript," from Marvin A.
Kastenbaum to Horace R. Kornegay, September 25, 1980,
attachment: Volume X~XII "Society of Actuaries
Transactions," 1980 (T 000563; T 000687-764). Tab 408.
Judge Depo. at 265-66.
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Possible Industry Response
A starting point to the Industry's response to
allegations of attempting to influence the insurance business
ought to be that any evidence of this is irrelevant to the "
smoking and health litigation. Whatever addition advertised
nonsmokers' discounts might make to the public awarenes~ of the
allegedly harmful effects of smoking is dwarfed by the
anti-smoking information already in the public domain. In
short, it is at best a collateral issue.
It may also be worthwhile to note that, despite the
heavy-handed methods used, e.g., contacting tobacco state
governors, congressmen, and insurance comissioners, the
Industry did have a good faith dispute with the statistical and
actuarial undezpinnln~s of, for example, the Occidental ads.
Indeed, Korneqay testified that he believed the ads to have
contained "gross inaccuracies."'--t~/ The fact that the
Occidental ad was based upon ex sp,~ discussion~ with ACS may
cause the jury ~o believe ~hat it ~as only fair tha~ the
~obacco industry be ~iven an opportunity to presen~ i~s side.
Tha~ certain of Kas~enba~'s objections ~o ~he 3ta~e Mutual
763 .
Kornegay Depo. at 493. Similarly, he testified that TI
never sought to "prevent" ~n insurance company from
offering a non-smoker'~ policy; rather ~he tobacco
industry only sought to learn the data upon which such a
policy would be based. I__d. at 487.
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0
0.~
paper were taken to heart by its authors is some evidence o~ a
sound basis for the Industry's objections.
Finally, a little education in the world of
realpolitik may be in order. The insurance companies were not
offering these premfum~ out o~ asense of altruis~, but rather
because they detected a commercial advantage to do so. To
expect the tobacco industry to stand-mute while the insurance
industry sought to gain by disparaging it is too much to ask.
~owling testified that he thought the ads to be a "purely
exploitive selling device" without actuarial basis,'''' and
that he had been so informed by members of the insurance
industry.2-t~" The issue of health was ne-er really involved
on eithe~ side of the dispute. It was simply a battle of
economic interests.
The response to one Loews subsidiary recognizing the
validity o~ the ~ealCh claims lowe~ li£e ~nsurance races
nonsmokers, ~hile another denies the vaIidiC~ is more
problematical. The ~irst line o~ defense ouqht to be that
action o~ CNA is not admissible as an admission ~y Lor~llacd.
The plaintiffs muse also be prevented f~om askin~ Locillacd
executives whether they "agree" ~ith the d~scounts.
764. Bowling Depo. a~ 520, 508.
765. I__d. at 516.
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The approach is basically terrible. The response
outlined above that the nonsmoker discounts are nothing more
than a marketing gimick makes Loews look doubly deceptive and
doubly greedy. James Bowling testified he thought the
discounts were "a purely exploitive selling device.- This is
after the CNA discounts were brought to his attention. He said
they were "phony" and =misleading."'--t~" More thought is
required on this issue.
A response analagous to that concerning the marketing
of filters and low tar cigarettes may be in order: We do not
accept the motivations underlying the consumer demand for these
policies, but. as realistic businessmen, we must respond to
that demand. Therefore, we offer these policies. For CNA,
health is not the issue; market demand is. if CNA was a
"leade~" or pioneer in offering the discounts, this response is
inappropriate,
Paul G. Crist
William E. Marple
Stephen J. Kaczynski
Thomas L. Abrams
756. Bowling Depo. at 516-20.
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