Tobacco Documents Online

164 1 rir, w ALL J 1 Ktt1 J U U K1VAL _.~ 199? Dow lonef & Compan.. ln. ,411 R,rhrr Re~ed % OL. CC\\1 NO. 29 t f t E -1 Eanc+ THURSDAY. FEBRUARY I I. 199) Smoke and Mirrors How Cigarette Makers Keep Health Question 'Open' Year After Year Council for Tobacco Research Is Billed as Independent But Guided by Lawyers An Industry Insurance Policy By ALIX M. FREEDMAN And LAURIE P. COHEN SIe/f Rtge/tM o/THE wALL STlEET JOLL aL This is the story of the longeu-mmaing misinformation cam- paign in U.S. business history, and how it may ultimately back- fire on its corporate sponsors. The tale opens in 1954. Cigareue smol®g, ike ta8 fina and the new music called rock-and-rotl, was fun and gl.mocous. But a warning had jttst been sounded that tmoldng might not be good for you. A xientist at Memorial Sloan-Kettering Cancer Center had painted tobacco tars on the backs of mice and produced tumors. The tobacco industry met this sudden threat head-on. In full-page newspaper ads headlined "A Frank Statement to Cigarette Smokers," tobacco companies announced that a new research gtoup, funded by the industry but indepeadent, would examine "all phases of tobacco use and health." Its solemn pkdge: "We accept an interest in peopk's health as a basic responsibility, paramount to every other consideration in our business." The tob.cso industry's main vdtide for damage control was up and running. Sowing Doubt For abnoa four doodet. the Council for Tobacco Research in New York has been the hub of a massive effort to cast doubt on the links between smoking and diame. Sponsored by U.S. tobacco compania and long nm behind the semes by tobacco-industry lawyers. the os- tensibly independent council has spent milli.om of dollars advandng sympathetic sdehce. At the same thoe. 'n has sotrtetilrcs disregardtd. or even cut off, studies of its own that impiinted smoking u a heakh hazard. "• When CTR researchas found out that cigarettes were bad and it was better not to smoke, we didn't publida that" in press «leasa, says tkrotha Cohen, who for 24 years until her retirement in 1989 wrae summaries of grantee research for the Council's annual report. The CTR is just a ltsi}bying thing. We were lobbying for dgaretta."_ • Many companies under attack for their products have underwnt- ten research to buttress safety claims. What sets the tobacco industry apart is the scope, aggresstvessas and pcststence of its under- taking. For decades mal tobaaro companies hase acted tn:on.en to combat the growing bad) of otdenca linking thnr producu tu an:r.. heart disease and emph.sema. Cheap Insurance The U.S. Centers for Disease Control today links 131.000 deaths a year to smoking. The surgeon general has declared smoktng "the single largest presentable cause of death and dt>- ability." citing "bverwhe{mtng" evidence from no kss than 50.000 studies. Yet the wisp of uncertainty supplied b' , the Council has always been enough to protect the S50 billion tn• dustry in Congress and especially in court, and tobacco com- panies have never paid a dime in product liabilin claim3. Addison Yamatt• a former Brown & W illiamson Co. law • yer and ex-ehavman of the Council• says the passage ot time hasn't altered his faith in this view expressed at a Council mect- ing in 1975: The "CTR is (the) best and cheapest insurance the tobacco industry can bu), and without it, the industry would have to invent CTR or would be dead." Michael Pettuhuk• a fomter chairman of the Federal Trade Conunission, fuds the industn,•'s defense extraordinary: "There never has been a health hazard so perfectly proven as smok- ing, and it is a measure of the Council's success that it is able to create the illusion of controversy in what is so eleganth a closed scientific case." . A Legal Peril But now the device the industry hu so long used to deflect attack has become its biggest vulnerability. That is because the Supreme Court lan year said smokers can sue. accustng ehe in dustry of deliberately hiding or disoning smoking's dangere. And the U.S. attorney's office in Brooklyn. N.Y.. is condua- ing a criminal investigation into whether the industry used the Council to defraud the public. Whether anything will come of the criminal inquln - and whether plaintiffs can convince juries that the industry did in fact misrepresent health hazards - are very much open que,- tions: just last month, one )ury• rejected allegations of a:on- spiraey. But if plaintiffs should begin to succeed, perhap• b) gaining access to now-secret Council documents. they could turn on its head what up to now has been an almost totally winntng industry strategy. The Council for Tobacco Research declined to respond to questions about its aai.ities• as did aU of the Big Six tobacco companies - Phillip Morris Cos.. RJR Nabisco Holding• Corp.. American Brands Inc.. B.4.T. Industries PLC (parent of Brown & Williamson). Loews Corp. (parent of Lorillardl and Brooke Group Ltd. (parent of Ltggett Group). At the outset. many in the industry thought the late-195? crisis posed by the Sloan-Kettering mouse research wu enure- ly manageable. With the Council, "the industry was told that in the best of worlds, we'd do a great service to mankind." says James Bowling, a former Philip Morris director. "Our product either would be econented or, if involved (in causing cancer4lsev'd identify the ingredients and we'd take them out. We iftougdLZhis was man•elous." So apparently did some scientists. The Council snagged a noted figure. Clarence Cook Little. as its scientific director. Thanks to his renown u a former University of Michuan presa

165 able to attract an illustrious scientific advisory board, whtch :ulled through proposals from a who's who of American scien- asts w ho sought its research grants. Over the years, it has doled out more than S:00 million. But the Council's role was never just research. It was largely a creature of Hill & Knowhon, the public relations firm, which cigarette merchants retained when the mouse research carne out. Hill & Knowlton installed the Council in the Emplre State Buiki- ing in New York, one floor beneath its own offices. with one of the PR firm's staffers as the supposedly independent research council's executive director. Hill & Knowlton also began pub- lishin; a newsletter that reported such news items as "Lung Cancer Found in Non-Smoking Nuns," and it helped authors generate books with titles Gke "Smoke Without Fear" and "Go Ahead and Smoke." Sorne people, indudmg many in the rtews media, were skep- tical of the Council. "To reporters, the Council was never in- dependent," says Earl Ubell, a veteran science reporter at WCBS-'f V in New York. "It was a wholly owned subsidiary of the tobacco industry." But in the interest of balance, jour- nalists writing on smoking and health routinely included the Council's views. And many smokers lacked the professional skepticism of reporters. "You would have to have lived in that era to under- stand - they kept providing false reassurances, so I had no idea that smoking was so very dangerous," says Janet Sack- man, who once appeared in ads as Miss Lucky Strike and who now has throat canxr. As early as 1958, however, the Council had strong inmria- rions from studies it financed that smoking could be dangerous. "Cigarette smoke condeasate is a weak morne skia arcvngea," said a Coundl-fmanced study completed in that year. Ensuing Couodl-finaooed taearch found more links to df- ease. In 1961, a study of 140 autopdrs at a Veterans hoapral in Iowa Ciry, Iowa, said "a history of cigarette smoking is sPg- nificantly related to the incidence of urdaoma." In 1963, researchers at Philadelphia Cxneral Hospital and the Univeni- ty of Pennsylvania linked chronic smoking to earlier coronary artery disease and a higher incidence o. coronary occlusion. The Council summarized such results in its annual reports, but it often chose other research to stress to the public. Ms. Cohen, who wrote the summaries, cites a 1965 study that said pregnant women who sawked had smaller babies and were more likely to give birth prematurely. But the industry in 1992 submitted to Congrea a study the Council hadn't finatKed, say- ing that smokers had no greater risk of premature babies and that low birth weight wasn't a problem. •'In the '60s." says Ms. Cohen, "there was so much bad news about smoking that there really wasn't much the CTR could put out, but anything they could find they would use." THE LAWYERS STEP IN By 1964, keeping the case open was no longer just shrewd public relations; it had become a legal imperative. As more Americans came to believe smoking could kill, the number of tobacco liability suits jumped to 17 from seven the year before. And in that year, the Surgeon General labeled smoking a health hazard. It "was a serious, stunning shock," says Mr. Bowling, the former Phillip Morris director. "That's the stage at which the lawyers became a lot more involved." Needing a defense from science as never before, yet dread- ing the legal exposure that adverse research would bring, the industry created within the Council a Special Projects division - with lawyers, not scientists, at the helm. Much of what it did was shrouded in mystery. "Everything was cloak-and- dtrcctor ot thc Cbunal. ^M c• wcrcu't ahowcd on tneir 11.wt."' The core of the lawyer<' operation was a.ast databasc. vtnr- ma the world's literature on tobacco and health. data on ioe, and strategy documents. The lawti•ers began shuttling the globe. looking for research and ecpen witnesse Thn cought out studies supporting causation of lung cancer by factors other than smoking and research suggesting the compiec origin of all diseases linked to tobacco. Overtures to scientists usually were handled by outside law firms, especially Jacob. Medinger, Finnegan & Hart in New York. It also served as counsel to the Council, and its Edw in Jacob took the lead role at the Special Projects unit. This ar- rangement offered crucial advantages. Notes Ro. Aforsc, a former research chfef at R.1. Reynolds: "As soon as Mr.lacob funded" a scientific study, "it was a prisileged relattonshtp and it couldn't come into court" because of legal rules protecting attorney-client communications. "So they could do projens that they could bury if they chose." How often they may have done that is unclear, because (,500 Council documents are under seal in a federal suit in New Jersey, withheld under the anorney-client pri.ilege. In any case, the industry had other options, such as halting funding atter an initial phase. Mr. Jacob and the firm of Jacob Sfedinger declined to comment. SCIENTISTS SIGN UP In 1972, the Special Projects unit gave Hugh Fudenberg. an immunologist, funding to determine whether some people are genetically predisposed to emphysema. Early results tndt- cated up to Io9# might be. Dr. Fudenberg planned "to warn high-risk people not to smoke," he says. but before he could his funding was discontinued without ex- planation, "They may have cut me off because it would have been negative for them; " he speculates. A researcher named Geoffrey Ashton learned the limits of the Council's independence in 1976. He was imited by Mr. Jacob to study whether there might be some gennic factor un- derKmg both smoking and certain diseases. But the ctud. nc~ cr got funded. Dr. Ashton says the lawyer told him "the presi- dents of the tobacco companies had turned down the proposal because they didn't think the outcome would be useful to them." This case. like sereral others, points up the sometimecg perplextng relatianship between sciemists and the tobacco Coun- cil. Dr. Ashton says he was "very apprehensive" about cast- ing his lot with the industry. What finally won him over' "Noi to shock you, but scientists are always looking for money to further their research:" Dr. Ashton says. Likewise, a pharmatrobgist. Charles Puglia. did a special project for the Council's lawyers from 1979 to 1961, although he believed smoking to be dangerous. He explains: "It was early on in my career and it got me started with a laboratory." While these scientisas hesitated to accept tobacco funding but finally said yes, others, such as Theodore Finley. hesitated and finally said no. Dr. Finley, encouraged by Jacob Medinger lawyers to apply for cigarette research fundin_. devidcd to c\ - amine whether emphysema can result from a reduction that smokers face in a protective lining of the lung. He soon backed out. "If my theory was correct, it would have discredited cigarettes," he says. "But it would be hard to talk about the evils of tobacco while being supported by them at the same time. This was dirty money - I felt like a prostitute." The researchers the Council cultivated most assiduously were those of a different breed: contrarianc whose work di.- puted the perils of tobacco. For instance. James F. Smith did two controversial studies in the 1960s and 1970s saying smoke-

166 ~atd it raised the risk ol oral cancer.) Although Dr. Smith all but repudiated his own conclusions on CBS's "60 %tinutes" in 1985 - urging the public to avoid smokeless :obacco - a short time later he acknowledged he accepted an offer of several thousand dollars from Jacob Medinger lawyers to review scientific literature in preparation for a tobacco liability suit. The plaintiff was the mother of an Oklahoma youth who had died of oral cancer after using smokeless tobacco for sevett years. The Jacob Medinger fnm and other defense lawyers won the suit, invoking Dr. Smith's studies as independent research. But there are indications he had longstanding ties to the Coun- dl; one court document shows his first study was eatmarked a "priority" for funding by Council lawyers 20 years earlier. Dr. Smith says the Council paid for equipment at his depan- meat's lab at the Univessty of Tennessee when he was doing his smokeless tobacco studies, though it didn't finance the studies. REWARDING RESEARCH Two other favorite scientists of the Council were Carl Selt- ur and Theodore Sterling. Dr. Seltzer, a biological anthropol- ogist. believes smoking has no role in heart disease and has alleged in print that data in the huge 45-yar, 10,000-person Framingham Heart Study - which found otherwise - have been distorted by antitobacto researchers. Framingham Direc- tor William Castelli scoffs at Dr. Seltzer's critique but says it "has had some impaa in keeping the debate alive." Dr. Sterling, a statistician, disputes the validity of popula- tion studies linking smoking to illness, arguing that thetr nar- row focus on smoking obscures the more likely disease cause - occupational exposure to tosic fumes. For both men, defying conventional wisdom has been re- warding. Dr. Sehaa says be has received "well over $1 mil- lion" from the Council for reseatdt. Dr. Sterl'mg got $1.1 million for his Special Projects work in 1977-g2, court records show. In relying on such reseatch, the tobacco industry is "ez- ploiting the margins of soieace," contends Anthony Colucd, a former top researcher and later director of scientific litiga- tion support at A.J. Reynolds. He offers an analogy: •'There's a forest full of data that says tobacco kills people, and sitting on one tree is a lizard with a different biochemical and physio- logical makeup. The industry focuses on that lizard - that tiny bit of margiaal evidence." R.J. Reynolds is stting Dr. Colueci, an outspoken critic, to keep him from testifying in a trial or talking to the media about tobacco liabitiry, and accuses him of demanding a big consult- ing contract to keep quiet. Dr. Cohtcd says Reynolds "manipu- lated the negadadom" so it can now portray them as an extortion attempt. He adds: "This is a clear demonstration of the extent to which a tobacco company will go to silence some- one who is telling the trtnh." The Special Projects unit worked in a variety of ways to protect tobacco companies. Lobbying in Congress against ad- vertising curbs, the industry in 1962 submitted to Congress a researcher's statement that peer pressure. not advertising, in- duced young people to smoke. Congress wasn't told that the research had been funded by Council attorneys. This was no accident. At a meeting of toMao-comp.nY lawyers the year before, Mr. Jacob explained that the reason for funding that particular research as a Special Project was to conceal the researcher's ties to the irsdustry. "We did not want it out in the open." Mr. Jacob said, according to the meating transcript as cited in a Newark. N.J., federal judge's opinion. The Council's lawyers weren't content for long to confine thes nda tti vn ts cncros.h on the snwhmc nxatch cmatut- ing from the putatively independent Council itself. Oftcn. the Coutwtl and ns lawyers shared or swapped projects and sctennsts. B, 1963, the Council had begun putting researchers under contract for many studies. This gave it the right to control both a study's design and publication of the results. However, as a contractor, the Council could be held responstble for wnh- holding negative findings. So its operatives would do their ut- most to ensure that ugly surprises didn't arise. This contributed to a parting of the ways with Hill d Knowlton. "The lawyers had this thing under control," recalls Loet Vdntans, a former chief executive of the PR firm. It quit the account in the late 1960s, he says, out of frustration that the industry "for legal reasons felt it couldn't admit to ans- thing lon tobacco and health) because then it would be sued out of eustence." Says Robert Kersey, a former head of tobacco research at Ligfxtt: "Almast everything that transpired had to be done un- der the advice of counsel so that nothing ... would incur a potential liability." SMOKING RODENTS In 1968, the Council contracted with Mason Research In- stitute in Worcester. Mass., to evaluate "smoktng machtnes" for animal inhalation studies and do toxicity tests on rodents. As the study drew to a close in 1972. Mason researcher \has- nig Hagopian was astonished when scientists from the Council and from R.J. Reynolds began turning up weekly at his lab. where he says they sat for hours taking notes. They made sure that only the most gettetialty vigorous (that is, cancer-resistam) rodents were going to be used, he says, and dictated which cigarettes and bow many puffs were administered to them. '•lt got to the point where they were directing the course of the study," says Dr. Hagopian. "It was nowhere near as objective as if it had been funded by" the government. Although he did complain to Mason's president. Dr. Hagoplan concedes he and other researchers mainly "looked the other way." They wanted to make sure the contract was renewed so they could do the critical experiments on whether smoke affects rodents' lung tissues. However, the Council ran- celed funding before Mason began the animal study. The Council pulled out the big guns after another stud). at Bio-Research Institute in Cambridge. Mass. When Syrian hanisters were exposed to smoke twice a day for 59 to >b weeks. 40% of those of a cancer-susceptible strain and 49.of a resw tant strain developed malignant tumors. Before publishing the study in 1774, the institute's founder. Freddy Homberger, sent a manuscript to Robert Hockett, then scientific director of the- Council. Dr. Homberger says he had to do so because halfway through his study, the Council had changed it from a grant to a contract "so they could control publication - they were quite open about that." Soon thernfter, Dr. Hockett and Mr. Jacob, the lawryer, hastened to Dr. Homberger's summer home in Maine. Their mission? "The> didn't want us to call anylhtng cancer-" Ur. Homberger testified years later at the Rose Cipollone tobacco liability trial in federal court in Newark. N.J. "They wanted it to be pseudo-epitheliomatous hyperplasia, and that is a eu- phemism for lesions preceding cancer. And we said no. this isn't right. It is a ancer." T mberger adds that S1r. jatwb told htmM would" er a penny more" if the paper was published withoareifaking the chantes. He compromised. At the last minute, he changed the linal proofs to read "micro-invasive" tancer, meaning a microscopic

167 n:ait;:nancv. Despite this. hi, lab was nescr lunded bc thc Council again. Dr. Hontberger would come to regret his concession. And the Council would find a use for it - on the same occasion on which it eventually would use research from another lab, Microbiological Associates of Bethesda. Md. WHAT KIND OF CANCER? The Council contracted with that lab to do the world's lar- gest inhalation study, involving more than 10,000 mice. To do it. the Council spent hundreds of thousands of dollars in a quest for the perfect smoking machine, one that prevented mice from either holding their breath or overdosing on car- bon monoxide. The lab initially had considered freedom, says Carol Henry, who was iu director of inhalation toxicology. But after nine years of work and $12 million. the team was told in 1982 that it could no longer meet with Council staffers unless a lawyer was present. "We had never done science through lawyers before, and we told them it was unacceptable," says Dr. Henry. She says a Jacob Medinger lawyer told her, "•That's the way it is." The scientists knuckled under. If the Council had canceled before all phases of the first experiment were done, 40 staffers might lose their jobs and nine years' worth of data would never come to Gght. In the frrst experiment. in which mice inhaled the equiva- lent of five cigarettes a day, frve days a week, for 110 weeks, 19 out of 978 mice got cancer - versus seven out of 651 con- trols. However, the tumors weren't squamous-cell carcinomas, the kind usually seen in human lung cancer. And there was a 109h possibility the results were due to charsce, whereas sden- tisu prefer no more than 57.. Even so, Dr. Henry says the study built a "very strong ax•' that dgarettes can iaduea cancers in anirttaLs. This was to be the first of several ex- periments. But lawyers from Jacob Medinger told Microbiological the project would go no further. "When a contract is canceled given these kinds of results," Dr. Henry says, "reasonable scientists might conclude the liability issue must have suddenly become apparent to this group." In fact, says Dr. Kreisher, the Council's former associate scientific director, Council law- vers "worried like he8" about it. Microbiological and the Council pased ways, but the tobacco industry got plenty of mileage out of the Mittobio- logical mice. In 1984, the Council issued a news release not- ing the absence of squamous-cell lung cancer in the lab's study. The timing wasn't coinddential: That year lawyers from Lig- gett, Phillip Morris and Lorillard began taking depositions in the landmark case of Mrs. Cipollorte, a New Jersey woman whose family claimed she had died of smoking-related squamous-cell lung ancer. And at the federal trial four years later, a witness for the defense said the fact that the smoking mice didn't get squamous-cell carcinoma (although some did get cancer) showed that "cigarette smoke has not been shown to be a cause of lung cancer." The witness also put Dr. Homberger's Syrian hamsters to good use. Smoking hadn't produced any more than "micro- invasive" tumors in the hamsters, rrotedthe.vitness, toxicol- ogist Arthur Furst. Dr. Homberger, regretting he had agreed under pressure to use this milder wording, calls this use of his repott "baloney," adding: "It was cancer beyond any question, not only in our opinion but in the view of the experts who looked at the slides." Dr. Furst declined to comment. The tobacco companies succeeded in planting doubt in .t+mh' turor. ..I d:dn', ..'.,•: :1 we• I`n•,cn .ac.r.•. ,t ..., smoAurg.au.,ed her lun.:an:er." ,a>, luror Barbar.t kc.ln. She says that under pre»ure trom other jurors. hc and i,.o othcr holdouts went alon. W nh a finding in fa. or of the Cipot- lones, but managed to hold the damages to 5400.000 instead ot the S20 million some wanted to gr.e. The award was based on false safeq assurance, by cigarette companies in their pre-1966 advertising. An appeals coun oserturned the verdict, saying the plain- tiffs had to prove Mrs. Cipollone had relied on the ad claim,. In December. the Cipollones withdrew the suit rather then rctn it, citing the cost. The advent of this suit had coincided with the end of the Council's contract and Special Projects research, as wrll as the waning influence of Jacob Medinger, which departed un- der pressure in 1984. Tobacco industry lawyers say privatelv that executives and attorneys grew fearful that the Coun:il. though designed to deflect liabi6t}, would wind up tncurrtng just that, because it could be portrayed as having breached a public pledge to do independent research. LEGAL LANDSCAPE SHIFTS In fact, by the mid-1980s, the industry had begun to face the very suits against the Council that it feared. In one, the Cipollone family's lawver, Ntarc Edell, sued the Council in 1984 on behalf of Susan Haines. the daughter of a Iuna-cancer victim. To prove his claims of fraud and conspirac%. \1r. Edell has been trying to get access to the 1,500 Council documents the industry has kept secret by invoking attomey-client privilege. Such privilege can be abrogated in case of fraud, and last year a federal judge-in Newark, citing possible evi- dena of fraud, set in motion the process of making documents available to Mr. Edell. The judge, H. Lee Sarokin. who had been hearing tobacco lawsuits for a decade. wrote a scathing opinion saying that the tobacco industry may be "thc Amc of concealment an,l w,tmormattuu." A federal appeals court removed him from the caac last September for failing to maintain the appearance of tmpar- tiality. A new judge will decide the critical tssue of whether the industry must di.vlge anv of the 1. 500 Council documents. In the meantime. plaintiffs' attomeys are pinning their hopes on the Supreme Coun't ruling last June. The ruhng. which grew out of the Cipollone case, said that although cigarette warning labels prevent smokers from bringing "failure to wam" cases, plaintiffs may frle suits alleging that cigarette makers intentionally hid or misrepresented tobacco'c health hazards. This has led some to view the Council tor Tobacco Research as the key to recovering damages trom the industry. But doing so may not be easy. At the end of January. a state court jury in Belleville. 11l., rejected the allegation that companies had conspired to play down tobacco's dangers. Some say winning such a case may depend on getnn& acces, to sealed Council documents. Also lacing an upmh oautc is mc crtnunal imeettgauun by the U.S. Attorney in Brooklyn. N.Y. Prosecutors are fac- ing statute-of-limitations problems because the Special Projects unit was disbanded more than fsve years ago. But what may prove the best protection for the tobacco industry is the readiness of certain scientists to read the c, t- dence differently from the majority. Says Dr. Colucci. the ex- Reynolds employee: "The scientists can come from Mars, but no matter how obscure or how misbegoueu, a, long a- the> are willing to tell the scientific lie that 'it's not proven,' the tobacco industry is off the hook."