New Strategy on Smoking & Health

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New Strategy on Smoking & Health

Date: 1980
Length: 6 pages
680051009-680051014
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Abstract

This landmark 6 page memo was written in 1980 by J. Kendrick Wells, III, Assistant General Counsel for production for litigation for the Brown & Williamson Tobacco Corporation (B&W). In it, Wells provides his legal analysis of a newly-proposed legal strategy emanating from B&W's parent company, British American Tobacco in London. The new strategy, known as "the Causation Concession," proposed that BAT (and hence B&W) "acknowledge the probability that smoking is harmful to a small percentage of heavy smokers."

The document contains the following stunning quote:

"If we admit that smoking is harmful to 'heavy' smokers, do we not admit that BAT has killed a lot of people each year for a very long time? Moreover, if the evidence we have today is not significantly different from the evidence we had five years ago, might it not be argued that we have been 'willfully' killing our customers for this long period? Aside from the catastrophic civil damage and governmental regulation which would flow from such an admission, I foresee serious criminal liability problems."

Fields

Notes

Related Documents: 12432, 12433, 21209, 38759, 38727, 21206, 38760 Produced by: B&W Affected Defendants: B&W

Quotes

NEW STRATEGY ON SMOKING & HEALTH

This memorandum deals with a confidential position paper originating with BAT in London, proposing a "new strategy" on smoking and health. The paper actually makes a number of discrete proposals for changing the merchandising and advertising techniques of affiliated companies around the world.

The "Causation" Concession

The most significant recommendation from a legal standpoint is, predictably, the author's proposal that BAT

"move our position on causation to one which acknowledges the probability that smoking is harmful to a small percentage of heavy smokers."

The author amplifies this by observing that in our advertising in the United States

"there seems to be no particular reason why the industry should not indicate its apprehension about people who smoke more than say 20 cigarettes a day and its confidence about those who wish to smoke less than this amount."

The legal disadvantages to this position could possibly be so great as to effectively counter the author's objective which is "to become strong in tobacco." The grave legal disadvantages are set out below:

To admit that smoking causes death and disease will most certainly enlarge B&W's liability to consumers. The admission goes beyond even the imposition of a "strict liability" standard.

The "new strategy" proposal would go a long way toward conceding causation, which is the only remaining defense where strict liability applies (the doctrine of strict liability is used in cases involving iDherently dangerous products and requires the plaintiff to prove only causation; the manufacturer's due care, or lack of negligence, is irrelevant.)

The proposal creates an indirect assurance to "light" smokers that they can enjoy their custom without apprehension. B&W would be warranting that use of less than 20 cigarettes a day is not dangerous. That warranty would likely provoke further government regulation and, more seriously, create a whole new basis for liability to customers.

Does anyone have hard evidence that 20 cigarettes is a boundary that can be relied on? Will not the proper location of that dividing line become a question subject to argument and ultimately to decision by a jury? I do not see how anyone can comfortably predict a given jury will not conclude that, for a given smoker, 14 cigarettes a day, for 365 days a year, for 20 years, is not "heavy" smoking. And what plaintiff will testify that the consumer in question smoked 14 cigarettes per day if liability depends on his having smoked only 6 more, or 20 in all? If we admit that smoking is harmful to "heavy" smokers, do we not admit that BAT has killed a lot of people each year for a very long time? Moreover, if the evidence we have today is not significantly different from the evidence we had five years ago, might it not be argued that we have been "willfully" killing our customers for this long period? Aside from the catastrophic civil damage and governmental regulation which would flow from such an admission, I foresee serious criminal liability problems. You are, of course, aware of the recent effort by a local prosecutor to convict the Ford Motor Company of a crime arising out of the defendant's alleged "willfull" misdesign of the gas tank on the Pinto car. I fear the adoption of the "new strategy" would give a prosecutor a much stronger case against Brown & Williamson. And because virtually all U.S. prosecutors are elected officials, it is rumored that some have been known to consider the effect upon the electorate of specific exercises of prosecutorial discretion (they like to go after fat cats).

The admission of liability inherent in the "new strategy" would likely encourage new and more onerous legislation and regulation, not only with respect to the sale and advertising of cigarettes, but also as to when and where they may be consumed.

Author

Wells, John Kendrick, III (BW, Assistant General Counsel)

In a 1/17/85 memo, BWT corporate counsel J. Kendrick Wells said he had advised Earl Kornhorst, BWT's VP for research, development and engineering, on the need to prune scientific reports from his files. Wells marked certain reports with an X to designate those that were "deadwood in the behavioral and biological studies area". The Janus studies--secret program of biological research on the effects of smoking which showed tumor growth in animals--should be treated as "deadwood". These documents should be segregated, boxed and put in the basement for possible shipment to BAT Industries in England, but no one "should make any notes, memos or lists of the documents" (LAT 8/2/94).

Recipient

Not specified

Region

United States

Named Organization

BAT, British American Tobacco

Brown & Williamson

Type

Proposal - draft

Litigation

Ness Motley

Subject

Document Images

Page 1: 00038769 Log in for more options!

DP~AFT NEW STRATEGY ON SMOKING & HEALTH This memorandum deals with a confidential position paper originating with BAT in London, proposing a "new strategy" on smoking and health. The paper actually makes a number of discrete proposals for changing the merchandising and advertising techniques of affiliated companies around the world. The "Causation" Concession The most significant recommendation from a legal standpoint is, predictably, the author's proposal that BAT "move our position on causation to one which acknowledges the probability that smoking is harmful to a small percentage of heavy smokers." The author amplifies this by observing that in our advertising in the United States "there seems to be no particular reason why the industry should not indicate its apprehension about people who smoke more than say 20 cigarettes a day and its confidence about those who wish to smoke less than this amount." The legal disadvantages to this position could possibly be so great as to effectively counter the author's objective which is "to become strong in tobacco." The grave legal disadvantages are set out below: To admit that smoking causes death and disease will most certainly enlarge B&W's liability to consumers. The admission goes beyond even the imposition of a "strict liability" standard. The "new strategy" proposal would go a long way toward conceding causation, which is the only remaining defense where strict liability applies

Page 2: 00038769 Log in for more options!

(the doctrine of strict liability is used in cases involving iDherently dangerous products and requires the plaintiff to prove only causation; the manufacturer's due care, or lack of negligence, is irrelevantl) The proposal creates an indirect assurance to "light" smokers that they can enjoy their custom without apprehension. B&W would be warranting that use of less than 20 cigarettes a day is not dangerous� That warranty would likely provoke further government regulation and~ more seriously; create a whole new basis for liability to customers. Does anyone have hard evidence that 20 cigarettes is a boundary that can be relied on? Will not the proper location of that dividing line become a question subject to argument and ultimately to decision by a jury? I do not see how anyone can comfortably predict a given jury will not conclude that, for a given smoker, 14 cigarettes a day, for 365 days a year, for 20 years, is not "heavy" smoking. And what plaintiff will testify that the consumer in question smoked 14 cigarettes per day if liability depends on his having smoked only 6 mor%or 20 in all?

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If we admit that smoking is harmful to "heavy" smokers, do we not admit that BAT has killed a lot of people each year for a very long time? Moreover, if the evidence we have today is not significantly different from the evidence we had five years ago, might it not be argued that we have been "willfully" killing our customers for this long period? Aside from the catastrophic civil damage and governmental regulation which would flow from such an admission, I foresee serious criminal liability problems. You are, of course, aware of the recent effort by a local prosecutor to convict the Ford Motor Company of a crime arising out of the defendant's alleged "willfull" misdesign of the gas tank on the Pinto car. I fear the adoption of the "new strategy" would give a prosecutor a much stronger case against Brown & Williamson. And because virtually all U.S. prosecutors are elected officials, it is rumored that some have been known to consider the effect upon the electorate of specific exercises of prosecutorial discretion (they like to go after fat cats). The admission of liability inherent in the "new strategy" would likely encourage new and more onerous legislation and regulation, not only with

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respect to the sale and advertising of cigarettes, but also as to when and where they may be consumed. 6. We are not competent to judge the law of the United Kingdom or in the Common Market. What is the effect of these new admissions in those jurisdictions? In looking over the "advantages" and "disadvantages" listed by the author with respect to the new position on causation, I find that the alleged advantages are unpersuasive and the disadvantages are materially understated. There are, however, other aspects of the "new strategy" that have no legal drawbacks and which it seems to me are worthy of serious consideration. The "Moderation" Theme While I do not believe we can in any way suggest to our customers that smoking in moderation will cause them no harm, I do believe we can promote moderation in the use of our product. I say that not only from a "public relations" or "advertising" point of view, but from a legal one as well. We must face the possibility ~ the day may come when a combination of medical evidence and juri~-~rudential shifts will expose the tobacco industry to ever~ greater liability. I have a sense that being able then to point to the fact that, starting way back in 1980, we were recommending

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"moderation" to our customers, can only help us. Perhaps the moderation theme could gradually be introduced into current advertising themes, most notably The Tobacco Institute's Smoker/Antismoker campaign. It is undeniable, of course, that to say "Enjoy our cigarettes in moderation" is to suggest that immoderate use may be harmful; but the same suggestion exists in every advertisement for low "tar" cigarettes. Product Modifications I see no reason why BAT should not proceed to reduce "deliveries" in Third World countries as quickly as possible, so far as this lies within its power. Advertising Methods � I assume the comments in the paper relate entirely to procedures occurring outside the United States. So far as I am aware we do not aim our advertisements at anyone under the age of 14, appeal to nonsmokers to take up the habit, induce people to smoke more, or rely upon "glamour and sexual appeal". Of course, U.S. advertisements are inclined to show pretty girls and rugged males but I hardly think that is what the author had in mind when he spoke about "sexual appeal". If that's "glamour" then I simply disagree with the author. We do expect some years down the line for the FTC to try to prevent the tobacco industry from using people in cigarette ads, but we see no reason why the industry should not resist that development with all the resources at its command.

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Competition I agree with the author that we should make those changes we think it is in our interest to make and the competition's failure to follow at least for now will not deter us. Conclusion I cannot accept the self-described "radical departure" proposed by the author of the "new strategy". Self-immolation is not the treatment I would recommend for a diagnosed lack of credibility. I believe the report does make some positive suggestions but I reject the self-destruction approach.

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