Tobacco Documents Online

THE SECRETS OF THE MOUSE HOUSE Initial Development Report (c) Diverse Production Ltd for Panorama • 24 November 1992

INTRODUCTION Professors Doll and Fletcher wander around Oxford. They are two of the grand old men of British science. In the '50s they were the first researchers to draw attention to the high cancer rates amongst smokers. They began a process of international scientific investigation which proved, beyond a shadow of doubt, that smoking is far and away the greatest cause of disease and preventable death in the western world. They walk past tobacco adverts and groups of young people smoking. They are, they confess, disappointed to see smoking still so popular and the tobacco industry still so strong. Back in the '60s they had hoped to see the habit almost eradicated by the end of the century. Meanwhile in the same city solicitor Charley Hopkins meets one of his clients, a lung cancer patient who is trying to sue the tobacco industry. Hopkins, with 250 British cases on his books, is battling against the tobacco industry's surprising, but highly successful, defence strategy: 'We do not accept', say the industry, 'that our products are dangerous. We do not accept that the case against smoking has been proven. We call for more scientific research. Meanwhile we carry health warnings - if governments force us to - but we do not accept they are valid. However, if you do become ill those warnings, which we do not believe are true, nevertheless absolve us from all responsibility for your condition." Tobacco executives call this policy 'the tightrope'. It hangs on one critical claim - that the industry has no detailed information on smoking and human health. Meanwhile companies call for more research to resolve the 'smoking and health controversy', indeed companies will happily funds such research - the longer-term and more detailed the better. In truth the industry would like 'research' into smoking and health to go on for eternity. For while there is research there is still the option of saying 'we don't yet know all the facts....the ease against tobacco is not yet definitely proven'. On this 'tightrope' is balanced their legal position, their residual respectability and their vast profits.

But what if the tobacco industry knows exactly what its products do to its customers? And what if the industry is covering this information up whilst simultaneously telling its consumers that it will fund objective research into the health 'controversy'? Tonight Panorama investigates the secret tobacco industry health research programmes. We reveal how these studies dearly demonstrated the dangers of smoking - and were then disowned by the executives who had commissioned them. We talk with former industry researchers whose work has been buried without trace. We identify the safer cigarettes which were manufactured but never went on sale. And we contrast what the tobacco industry says about health in public with what it knows about health in private. 2

BUILDING THE MOUSE HOUSE The tobacco industry has changed out of all recognition. Back in the late 1950s it was run by a rather genial bunch of pan-timer~ Tobacco executives were not thought to be the most highly-stretched of businessmen. Competition was not intense. A cosy cartel neatly divided the market. When the first reports linking smoking to lung cancer were published the industry did the decent thing - it invited the scientists around for a chat. Doll and/or Fletcher talk about the early response of industry executives. The men were genuinely shocked that their products might be dangerous. They wanted to know more. Then came the first animal tests - American scientist Prof. Wynder used smoke to produce tumours in mice in the late '50s. Tobacco executives wanted to know if these results were genuine. They started hiring top scientists by the score. One was Dr. James Green. We talk about him and his early work. Mrs. Green speaks about those times. At first they repeated the mouse experiments, then did more complex biological tests. Green was excited when he got the same results as Wynder. The cancer link seemed to be genuine. In America Drs. James Mold and Tony Colucci were doing similar work - one for RJ. Reynolds and one for Liggett and Myers. They also recall the early tests and the shock waves running through the industry when the various companies began comparing notes and realised just how carcinogenic their products really were. The next stage was to find out why ? At first the scientists were very excited and very fulfilled - they were doing state-of-the-art research in well funded labs. They were sharing their information and working, they thought, for the public good. The guiding idea was 'lets find out the problems and fix them'. There was support from company executives and intense competition to come up with a safer cigarette. Meanwhile they were also doing pioneering work on smoking and other health problems - heart disease and emphysema. These things were all discussed at board level.

We can film the extensive research facilities built by BAT in Southampton, Harrogate and Hamburg. We can also take Dr. Mold back to Raleigh-Durham, where Liggett built their lab, and/or take Colued back to Winston Salem where RJ. Reynolds poured money into what they called 'The Mouse House'. Working with rats, rabbits and mice Colucci says that his work pointed the way to the exact mechanism by which tobacco smoke damages the most sensitive inner linings of the lung - causing emphysema or provoking tumorous growths. There was talk of nobel prizes in the offing. Colucci says what his team discovered made them realise that they had an awful long way to go before they could find a 'safer' cigarette. We tell this by interviews with the Americans, with Mrs. Green and her daughter and with documents now available from this era. We focus on the BAT ones because they are exclusive but I also now have some good ( and barely publicised ) American ones which also demonstrate just how detailed was the industry knowledge of tobacco's poisonous properties and just how keen they were to find a safer product. By '68/69, therefore, the industry had a very clear idea of the effects of smoking - available documents list dozens of identified carcinogens. ENTER THE ATrQRNEYS Then the problems began. America is a litigation culture and personal injury lawyers had begun taking cases of people who had contracted lung cancer. There was a growing anxiety inside the industry that they might go the same way as the asbestos business - sued out of existence in the US civil courts. More and more attorneys began to walk the corridors, throwing anxious glances towards the labs. In addition a new and tougher breed of executives was coming to the fore. Mrs. Green and our American scientists can speak about the gradual change in corporate atmosphere which these first court eases brought about Lawyers acting for the industry had to create a strong defensive posture and they began grumbling that the company scientists were making their life increasingly difficult. 4

BOARD RQQM DISPUTES The disagreements reached the board room - and the Madison Avenue offices of Hill and Knowlton. H.and K. were, and are, the world's leading P.R. company. During the '60s their biggest clients were the tobacco industry. Former H.and K. executive Loet Velmans says that his company was pressing the industry to adopt a bold and open approach. The plan was publicly to acknowledge the facts and to work, in harness with governments, towards safer products. But the lawyers disagreed. The crunch came in the late '60s. A '69 Wall Street Journal report, carefully placed by the company, says that H.and K. were urging their tobacco clients to make a new beginning - to accept that smoking could be harmful and to say to consumers: 'we're working on safer products...meanwhile smoke at your own risk.' This strategy was not adopted and within a few months H.and K. voluntarily dropped all their tobacco accounts. According to Velmans they did not want to be associated with the deceptive tactics they knew the industry was about to adopt. Without savvy external advice from the likes of H.and K. the industry increasingly turned in on itself and retreated into a huddle with only its lawyers for company. A new culture developed - paranoid and defensive and extremely hostile to perceived enemies in the media and public health bureaucracies. lAWYERS GET THE UPPER HAND Given an increasingly free hand, the lawyers turned on the scientists. Dr. Green found himself at the centre of this conflict. Industry researchers were openly talking about their animal experiments and their relevance a) to human health and b) to the creation of safer products. For example a 1969 Philip Morris memo talks about BAT's Harrogate experiments and makes clear that the work has direct relevance to human health. That same year an open conference in Hamburg, attended by BAT researchers, discussed this and similar work. For company lawyers, who were busy constructing a defence against personal injury claims, such papers and conferences were a stab in the back.

Internal, and highly confidential, BAT papers from '69/70 illustrate what happened next. At BAT's request their American lawyers wrote a long opinion which was sharply critical of the behaviour of company r~ientists. It complained that company researchers had spoken in Hamburg and urged great 'caution' about public statements. The lawyers pointed out how the industry's legal position could be undermined by public knowledge of internal company research In response BAT agreed to be 'careful'. This exchange of documents is highly significant. The lawyers were the firm of Shook, Hardy and Bacon - the firm which are credited with creating the entire 'tightrope' policy and the firm which still represents every single tobacco company in the American courts. The BAT letter is written by founder David Hardy ( his son is now a partner there ). Some I have shown the letter to think it is tantamount to conspiracy - urging a company to deceive its customers. The copy we have is covered in James Green's handwritten notes...he was clearly very angry about its contents as his private papers ( and his family's recollections ) confua~ For long quotes from this docul,,cnt marginalia - see my original proposal. and reference to Green's Essentially what had happened was that a group of attorneys in Kansas City were now able to instruct the board of a London based multi- national corporation. Everything had to become subservient to the legal position in what executives now saw as a battle for survival. A 1970 memo ( marked highly confidential with each copy numbered ) is frank about the need for BAT, and other tobacco companies, to dissemble before the American courts. In particular it is clear that the firm now realised that it must keep its internal knowledge of smoking and health strictly private. Meanwhile in America a near-identical situation faced Tony Colued. There was a build up of tension between the R.J. Reynold's research and legal departments and then, suddenly in 1970, in a sort of corporate coup, the 'Mouse House' was closed and 26 bio-chemists were fired. They were not allowed to take anything with them and all their notebooks were seized by company attorneys. They were all immediately stamped 'confidential, lawyer/client privilege' and locked away.

Colucci's lab was in the middle of several pioneering experiments - mostly focused upon smoking and health. What, according to former researchers, alarmed the attorneys the most was that Colucci was making progress in the critical area of 'mechanism'. In other words he was investigating how it is that particular compounds in tobacco smoke trigger particular types of disease. In court cases it was, and still is, possible for tobacco attorneys to argue that no-one can ever prove what produced one person's particular illness - so details of the precise mechanism (or the fact that companies were even looking for it) is very si ificant. In an earlier era Reynolds executives had encouraged Colucci, since his work held out the prosect of isolating and removing the most dangerous chemicals. This would open the way for a lucrative 'safer' cigarette. But by 1970 priorities had changed. The most important thing was to assist the lawyers - and so it became very inconvenient to have internal company scientists like Colucci probing into the mechanism of how smoking killed, when in court the lawyers were saying that smoking did not kill. THE WATERSHED On both sides of the Atlantic a watershed had been passed. From now on the industry was to operate on an entirely new basis. Executives saw themselves - and still do - as engaged in a long defensive war in the West, whilst taking every opportunity to expand in the East and the Third World. Instead of trying to identify and fix the problems in their products company chiefs were now busy denying there were any problems - and also denying that they had ever even looked into the subject of smoking and human health. Reynolds say that the 'Mouse House' was closed because it was a crude lab and because the science produced there was not very impressive. The notebooks themselves are still kept under lock and key but a 1985 document written by a company consultant says that the work was very good and set new standards for biological health research. The memo also confirms that work was targeted on how smoke triggers disease.

THE COUNCIL FOR TOBACCO RESEARCH (CTR) Reynold's other defence of their action is very significant - the company say that they had decided to fund scientific research through the Council for Tobacco Research. The CTR was, and is, a key pan of the "tightrope' policy and is now the focus of American criminal investigations. The CTR is, effectively, a means of endlessly spinning out the so-called health controversy. Companies tell the public that, as responsible organisations, they are concerned to clear up the 'debate' about smoking and health. To this end they have funded the CTR for many years. The existence of the CTR allows executives to say 'we're not scientists or doctors but we are happy to fund research by properly trained professionals'. Pushing research outside their own corporate structures in this way allows the necessary distance so that executives and lawyers can claim that the charges against their products are 'unproven'. For example some CTR-funded work has resulted in powerful anti- smoking results. This is published and circulated in the correct way. But the fact that it is CTR work and not, say, BAT work, means that companies can still say - 'yes, well, very interesting but still not definitive..the debate continues...we call for more research' ...... and so it goes on. Meanwhile any other work that blunts the anti-smoking message receives maximum publicity. Internal documents reveal that the CTR has at times sounded more like the industry's PR operation. An internal CTR memo from 1975 talk of 'favourable' press coverage which questions the smoking-cancer link. The document draws attention to research which shows smoking may have some health benefits. The author also claims to have 'spun' various journalists away from a strong anti-smoking stance and is full of vituperative language against anti- smoking 'extremists'. The whole tone is far from that of an objective sdentific body. Tobacco company documents are also explicit about how the CTR is used as part of the overall PR strategy of the industry. One ends : "P.S. I doubt if you will want to retain this note".

The CTR was, and is, presented to the public as an independent body following its own scientific agenda. There is now plenty of evidence to suggest that it is in fact a publicity and legal device - nothing less than a twenty year confidence trick to persuade anxious smokers that the industry was looking into the health problem...whilst in reality the industry was busy concealing its own internal knowledge. Dr..lames Mold spent many years working with and alongside the CTIL He speaks about their obvious lack of interest in pursuing the most important health questions - he attended one meeting and made some pointed suggestions about the future direction of research into smoking and cancer. He was not asked back to another. A 1974 memo from the Lorrilard tobacco company writes: "Historically the joint industry-funded smoking and health research programmes have not been selected against specific scientific goals - but rather for various purposes such as public relations, political relations, position for litigation etc. Thus it seems obvious that reviews of such programmes for scientific relevance and merit in the smoking and health field are not likely to produce high ratings." A 1972 memo from Philip Morris to the Tobacco Institute talks of the industry's brilliant strategies - "we create doubt about the health charge without actually denying it". The public emphasis on the CTR and its 'independent' research ran in parallel with advertising which cleverly negated health fears and rationalised smoking impulses. DR, GREEN'S ANGER To an increasingly embittered Dr. Green the role of the CTR and BA'I"s own attitude to smoking and health was based on a denial of reality. He took to writing scathing memos to fellow board members. In turn they produced a pamphlet ( which I have ) detailing the pat answers executives should give if they were ever asked about smoking and health. The basis line was 'we don't know anything about it but we do fund independent research ..... meanwhile we regard the case against smoking as unproven'. To Green, who had spent years proving it for BAT, this was insufferable. In one memo he writes: 9

"To many the industry appears intransigent and irresponsible. The problem of causality has been inflated to enormous proportions. The industry has retreated behind impossible demands for "scientific proof", whereas such proof has never been required as a basis of action in the legal and political fields. Indeed if the doctrine was widely adopted the results would be disastrous.." (eg: It is still not known just HOW asbestos kills, but no-one questions that it does.) "_.our position is dominated by legal considerations". In another memo he urged "It would be better to say in public what we know in private". His wife will recall the anguish of those years. Lawyers I have spoken to have believe his papers to be very significant. Here is a senior tobacco executive, with direct health research experience, contradicting the entire 'tightrope' defence and also exposing its real motivation - the legal position of the companies. Green was particularly upset that work towards safer products was halted, and its existence denied. This is despite the fact that BAT had patented a 'safer' cigarette in the mid '60s. The lawyers, apparently, felt that marketing a safer product (and, potentially, saving the lives of thousands of addicted smokers) would compromise their defence strategy. 'How, they asked, can you sell a safer product whilst simultaneously denying that the original product is unsafe?' It was at this time that the Hamburg heart disease laboratory of Prof. Dontewill was closed and the Professor paid not to talk about his work - see earlier proposal. After an unhappy period at the firm Dr. Green was asked to take early retirement. He accepted and then, within a year, went on Panorama - the first, and only, ex-executive to break ranks and say that smoking is a major factor in human diseases. BAT were livid, Green was described as an angry failed-executive and his comments were denounced. The Green family found themselves cut off from all their BAT friends. In 1981 Green gave a private briefing to the anti-smoking group ASH - we have the transcript and could interview the man who questioned him. This document backs up what Mrs. Green says about his attitudes and his slow disillusionment with BAT and the industry. It includes a few nice anecdotes about the changing tone of the industry and what Green saw as an increasingly cynical attitude to customer health. 10

For example Green had once, with board approval, forbidden the marketing of inhalable cigars. But the new generation had overruled that policy. He'd also complained about a particularly carcinogenic substance he found in a popular brand of roll-your-own tobacco. An executive had told him not to worry - 'we'll keep it in for three or four years until we've beaten the competition and then we can remove it....it'll be twenty years before anyone dies.' Green told ASH how the industry believed it was living on borrowed time and regarded every extra year of profits as a hard-won victory. He also recounts how another board member once told him after a stormy AGM, "Jim, you know and I know that smoking causes cancer and I don't want to have to say it doesn't" (in public). Such anecdotes contrast beautifully with the accounts given by BAT executives during the Farmers case in 1989 (see later). The industry's basic strategy has not changed since 1970, and it has been overwhelmingly successful. Those smokers who challenge it in the court are overwhelmed by the financial muscle of the industry. They frequently spend 15-20 million dollars simply to delay cases and impoverish plaintiffs before they get to court. Meanwhile through well- financed lobbying they have resisted advertising bans in their Western markets - much to their surprise - and expanded ferociously in unregulated markets to the east and south. DR, MQLD'S SAFER ~IGARETI'E There is one final chapter in the health research story. One small company - Liggett and Myers - did not fall into line. They refused to join the CTR and instead paid Dr. Mold to continue his safer cigarette research 'in-house'. Mold, who is dismissive of the CTR and their real motives, was very successful. By the mid-'70s he had a product which he believed was substantially less carcinogenic. It also passed all the taste and marketing tests set up by L. and M. There is ample documentation, and James Mold's own testimony, to tell this story. Thousands of animals were used in intensive biological tests aimed at producing a cigarette which would not produce tumours in mice. (In fact it did .... but at a rate only2 per cent of that of normal tobacco smoke).

L. and M. executives were behind Mold but few others within the industry knew about the product. But once test-marketing commenced L and M (the smallest American company) came under intense pressure to pull out of the project. Eventually they did. Apparently one Vice-President supported Mold until the end, but the board was overwhelmed. Mold remains very angry about what happened mad blames the decision on the industry-wide fears that if one company broke ranks then all their own internal knowledge about smoking and health might find its way into the hands of the industry's enemies. Despite the L. and M hiccup, the 'tightrope' has served the industry well. Yet, as James Mold's experience shows, it acts against the public interest because it seems to preclude the marketing of safer products. In a related example Reynolds launched Premier, a non-smoking cigarette (or 'nicotine-delivery device') in the late '80s. A Shook, Hardy and Bacon memo (the same key attorneys who intervened at BAT in 1970) reveals concern about a potential threat to the 'tightrope'. SHB worry that Premier's research and development looked into different types of smoke and might therefore draw attention to the extent of related research in the past. The memo notes with anxiety the fact that Reynold's announcement suggests that cigarettes can be made cleaner or safer. Then in 1989 an almost-unknown series of hearings shook the industry and suddenly placed BAT- and Dr. James Green - in the front-line. FARMERS TAKES QN BAT Farmers Group, an American insurance company, were faced with a hostile take-over by BAT. Amongst other tactics they invoked a 'honesty and integrity' defence in various public hearings in American state capitols. For the first time a tobacco company was up against an orgaxtisation with the resources to challenge the Shook, Hardy, and Bacon's of this world. Farmers' own attorneys dug deep into the history of BAT and produced an eloquent case against the firm. Essentially Farmers claimed that BAT executives did not have the ethical scrupulousness required to run an insurance company - especially one which specialised in discounts to non-smokers. ~2

Suddenly senior BAT executives were obliged to defend themselves in public. Cross examined about the company's attitudes to smoking and health they made a sorry sight. Company Vice Chairman Brian Garraway was asked if he had ever looked into the subject of smoking - and health. Back came the party line; 'No we don't do that son of work, but we do fund external research and meanwhile we regard the ease against smoking as unproven'. Then he was asked to view the Panorama tape and comment on the views of Dr. Green, his former colleague and fellow board member. The juxtaposition of Green's views with the approved corporate position made BAT look very shifty. But Farmer's attorneys wanted more. They knew that Green had documents and they knew he was thinking about doing what no other executive had ever done before - testifying about the detailed health research that went on under his control. BAT were desperate to stop him. One evening, after nearly a decade of no-contact, four BAT executives appeared on James Green's doorstep and pleaded with him not to testify. He could, they said, be the ruin of the company. Green was torn. He had no ~reat love for American lawyers whether they worked for Farmers or BAT- but he did approve of what Farmers were doing. He was also worried about revealing he had walked away with internal company documents, fearing his pension might be at risk. Farmers said they'd replace the pension and throw in a house in California. Whilst the Green family agonized BAT made a bold move to wriggle off the hook. They upped the offer by over 600 million dollars. Farmers accepted and called their attorneys off. The documents which the two companies were fighting over are the ones we have obtained to help make this programme. Insurance industry analysts feel that BAT paid way over the odds for Farmers - mostly because Farmer's defence strategy had been so successful and had threatened the company with a succession of public embarrassments (which might have had significant legal repercussions in smoking litigation). It is rumoured in Winston Salem that BATs difficulties had the other tobacco companies very concerned. ~3

The Farmers hearings demonstrated the potential weakness of the industry. Their "tightrope' has managed to see off poorly funded product liability cases. But up against a wealthy and determined opponent their legal position begins to look very weak. BAT executives looked more than a little ridiculous getting up in a court-room in Oregon and ~aying that dgarette packet warnings are inaccurate and that smoking does not cause harm. They looked even worse when James Green's statements were put before them. Men like Garraway are now stuck with the consequences of their active campaign to mislead the public and suppress their own knowledge. The present Chairman and top executives (Shehey and Garraway) are very much a part of this. Garraway's testimony -which we can reconstruct with actors - is particularly laughable. He says that he never even asked James Green for his opinion about smoking and health, yet we now have Green's own memos on the subject, unlike the Farmer's attorneys who would have killed for them - and we also have Mrs. Green's testimony on just who her husband used to talk to, and what he used to say. JUDGE SAROKIN'S RULING Another twist came earlier this year - Judge Sarokin in New Jersey was asked to rule on a discovery claim in a recent personal injury case. His ruling brought the industry up against a potentially much more dangerous (and better funded) enemy than Farmers Group - the U.S. criminal justice system. Plaintiffs attorneys had asked Sarokin for access to CTR documentation. The Judge ordered the documents released, despite the fact that many were held under attorney/client privilege. Having viewed the evidence he then went on to accuse the industry of fraud. The documents are still under wraps, pending future court action and Judge Sarokin has been reprimanded for 'apparent lack of impartiality' and taken off the case. However the judicial panel which reprimanded him for being too outspoken also made it plain that Sarokin remains a highly respected Judge who will continue to sit for that court. 14

Here are some of Sarokin's quotes: "Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prospedty...As the following facts disclose, despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation. As a matter of fact, the court finds for purposes of this appeal that plaintiff has presented strong evidence that defendants knew of the health risks implicated by cigarettes". Sarokin then turned to the role of the CTR and their public image as an independent, objective body. In reading the still-secret documents Sarokin discovered the existence of a secret department called the Special Projects Division. This department was devoted to research which would assist the industry in its product liability litigation and all the research was stamped 'attorney/client privilege'. Sarokin ruled that the Division, and its use of A/C privilege (reminiscent of how Reynolds had handled Tony Colucci's work in 1970) was a clever shield to keep industry health knowledge away from the public and the courts. He found that "the documents speak for themselves in a voice f'dled with disdain for the consuming public and its health". Documents he saw persuaded him that industry knew many facts yet used the CTR to plant doubts in the public's mind. He found that "research which might indict smoking as a cause of illness was diverted to secret research projects. The publicized efforts were primarily directed at finding causes other than smoking for the illnesses being attributed to it .... This court's own in camera inspection of selected documents has revealed the most explicit admissions that defendants used the special projects programme to further the alleged fraud and deception surrounding the advertised function and operation of the CTR. Even more disturbing the documents also indicate that defendants specifically abused the attorney-client privilege in their efforts to effectuate their allegedly fraudulent scheme". Moreover Sarokin also ruled that scientists working in secret with the Special Projects Division were simultaneously touted as independent CTR researchers. 15

He also quotes a Shook, Hardy, Bacon memo about Special Projects Division apparently instructing the CTR to act against anti-smoking publidty. According to the Judge much of the CTR's work was guided and coordinated by industry legal people. He calls the evidence "damming". ~. Other documents referred to in the opinion call the CTR a 'front' and a 'shield'...'useful for PR purposes...imponant to keep the case against dgarettes' open'. The Judge ordered a widespread disclosure of the documents - this decision was overturned by the appeal court on a technicality. The same court also reprimanded the Judge for revealing details of privileged documents. Another judge will now decide what stays secret. Sarokin has written "I fear for the independence of a judiciary if a powerful litigant can cause the removal of a judge for speaking the truth based upon the evidence, in forceful language that addresses the precise issues presented for determination...If the standard here had been applied to Judge John Sirica, Richard Nixon might have continued as President". Prompted by Sarokin's comments (and, very unofficially, aided by him) the powerful Eastern New York DA's office has launched an investigation into the tobacco industry - focusing on health research and the precise role of the CTR. This is a major investigation by the same department which recently brought mafia-chief John Gotti to justice. The tobacco industry may have successfully fought off many civil onslaughts, but the tactics used may have exposed it (and it's lawyers) to future criminal action. At heart of the D.A.'s investigation is the subject matter of this programme. Our documents and interviews will have real impact on both sides of the Atlantic. 16