Memo on meeting to discuss possible governmental action following the report of the Surgeon General. Speculates as to possible regulatory response to report: FTC proceedings, warning labels. Congressional hearings, FDA regulation. Suggests Ad Hoc Committee step up investigation of emphysema, heart disease, bronchitis and smoking pharmacology. Finds agreement that industry as a whole should issue response, rather than individual companies doing so. Considers voluntary warning label, but worries this could result in further product liability litigation and anti-smoking legislation. Considers timing, content, and wording of proposed Tobacco Institute ad, "unanswered Questions in the Anti-Smoking Attacks."
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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,
Jscob for R. J. Reynolds Tobacco Co.
Miss Janet Brown for American Tobacco Co.
Ehrensfeld for Philip Morris 1riCo
for P. Lorlllard Co.
for Brown & Wllliamson Tobacco Co.
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
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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
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
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
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to issue a compla£nt against a11 the companies whlch would
allow a pe:iod of time to negotiate a consent o= declde upon
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
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.
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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,
~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
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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
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.
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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.