Tobacco Documents Online

~onfldentlsl MEMORANDUM FOR FILE September 3, 1963 Liqqett & Myers Tobacco Co. SURGEON GEh~ERALIS CO~ITTEE On Wednesdayt August 21, 1963t I attended a pro- tracted conference at Davis Polk of lawyers concerned with the defense of cance~ litigation in the tobacco Industry. Actually those present consisted of the Ad Hoc Legal Committee on Tobacco Institute problems, Those present were: Mr. Temko of the Covington flrm~ Washington, D. C, Messrs~ Ramm- Chandler Coleman Jscob for R. J. Reynolds Tobacco Co. Miss Janet Brown for American Tobacco Co. Messrs. Hewltt Hardy Ehrensfeld for Philip Morris 1riCo Messrs. Russell Wald Mr, Yeaman Mr, McCormick FPH for P. Lorlllard Co. for Brown & Wllliamson Tobacco Co. from England for Liggett & Myers Tobacco Co. ~he discussion was designed to cover possible Government action following the report of the Surgeon General. b~ ~oo~:~I TRIAL EXHIRI~ I I 21,476 |

-2- It was rumored by some that subcommittee reports were due by the end of September and that the Surgeon General's Committee would then seek agreement with respect to the compilation of the material to be included within the report. Estimates of the date when the report might be completed ranged from November 1963 to ~aech 1964. All agreed that the appointment of Dr. GuthrLe succeed Dro Hamil~ in overseeing the Surgeon GeneraZ*s ~nvest~gat~on was an unfortunate event. It ~s believed that Guthr~e ~$ not ¢~uly ~nco~tted on the sub~ect ~ndee ~nvest~gat~on, It was also announced that De. KotLn, the scientific adviser of T.~.R.C., would soon succeed O~. 5himkln as associate dlrecto~ of the National Cance¢ Institute. Although the~e is some belief that Senato~ may well not'wait for Phase II in o~der to push anti-smoking legislation ~n Congress, the following were considered as poseeb¢let~aa foe fuethe~ act¢on f~lloweng publication of the Su¢~eon General's 1. Fede¢al T=ade Co~ssion a. Ites deemed unlikely that a ccmplaent would be £¢1ed against one company to t=y a test case although the¢e" is a pOSSibility that the FTC might publish its intention to

-3- to issue a compla£nt against a11 the companies whlch would allow a pe:iod of time to negotiate a consent o= declde upon fo:mal litigation. b. The:e is also the possibility that the FTC m~ght institute p:oceedlngs unde~ the T~ade Regulatlon Rules P:oceedlngs which could be challenged in Cou:t before the rule became final. c. There is also the possibility that the FTC might review the Guides which some time ago led to a code dealing with adve=tls[ng. d. It is also considered posslble that the FTC might take affizma~ive action to. oompel the insertloa of a wattling on packages oz in advertising. Although all the foregoing a~e posslb~lltles Lt is believed that the FTC wants to hsvea manda&e ~rom Cong:esa o~ higher Government office be~o~e It wouid proceed along any o~ the above llnes, 2. Conqressional Hearinqs I¢ was agreed that Congressional Hee~inga a=e likely on the Suzgeon General's repot2 and possibly~ in addlt~on,. with respect to bills introduced dealing with labeling, etc. ~tth elections ~o~thcomlng, however, the likelihood of these being imminent was doubted.

3. Food and Dzuq Admlntst~tion There is a possibility that the FDA might pzoceed under the Ha~azdous Substance Labeling Act of lg61o The Act appeazs to be broad enough to cove~ ciga~ettes although the~e is the understanding that FDA does not believe that cigarettes come within it, It was generally agreed that the ~d Hoo Committee should step up its investigation of ecphysema, heart disease, b~onchitis, the phazmacology of smoking, all of which may be expected to become of increasing interest, whether In the field of Conqresslonal Hearings, litigation,. F.T.C. proceedings, etc. ~tss Bzown, ~essrs. Cooke, Hardy, Holtzman, Jacob, Russell and Haas we=e given this responsibility. It was unanimously agceed that those in attendance would recommend to thel~ respective principals thlt if there was to be a statement after the Surgeon General's report was made public, it should be an industry statement rather than sepazate statements by one or more companies. This would obviate the possibility that • statement by one company might

-5- be inconsistent with that made by another. The same method of procedure was reco~,~ended as well in the event of F.T.C. or Congressional action. There was a brief discussion as to whether the companies should voluntarily consider inserting a warning on package labeling. The consensus of opinion was that the industry could best shelter itself in litigation after such a warning were imposed on them by legislation or othe~wlse, and that a voluntary wa~nlng might encourage litigation (because it could be alleged that this wa~ a recognition of risk), and that it might in any event encourage anti-smoking legislation. a poaelble ad" to be run by the Tobacco Znetttute entitled Unanswered Q~estions in the Anti-Smoklnq ~ttacke containing 25 numbered questions which were obviously deeiqned to show that much remains unknown about the smokinq/lunq cancer issue, ~hlle there was n~ unanimity, the followl~ was raised: to the issue and only two of t~em dealt with heart disease. ~t was thought that if such an sd were to be r~n it =tqht well be confined to the lunq cancer issue.

-6- 2. Zt might be better to withhold such an ad until after the S~rgeon General's report is published since the report may not treat a number of the items and the counter statement of the industry might be stronger if published after the event. 3. A number of the questions would be better stated 1£ made in the form of a direct statement rather than a questlOno It may well be expected that the ~erican Cancer Society, etc. would ~oin in publtsh£ng a counter statement listing each of the q~es~ions of the Tobacco ~nstltute with the answers following them, While it is recognized that this might only focus on the fact that the issue is not resolved, all present have had sufficient experience with statements of the opposition to know that they were not reasonable at all times. There was no attempt to edit each of the questions but, If desired, certain of the Committee could work with the authors ~n an effort to do so, The undersigned made the suggestion that there should be some reference in the box entitled ~het the Industry I/ Doinq Indicating that individual tobacco compantes have spent large su~S investigating the issue in their own laboratories above a~d beyond the expenditures by T.I.R.C. Apparently there is some resistance to this by reason of the fact that some of the companies have not conducted euch research. F. P. H.