TOBACCO Jones, Day, Reavis & Pogue Draft: Corporate Activity Project: Part 3
TOBACCO
Jones, Day, Reavis & Pogue Draft: Corporate Activity Project: Part 3
Bates # 681879254
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cigarette smoking and disease. From an advertising and marketing perspective, the Report boded the beginning of a significantly higher level of government involvement in the regulation of cigarette advertising practices. The industry adopted a voluntary Cigarette Advertising Code to avoid government regulation of its ads which reinforced the smoker. Avoiding goverment regulation allowed the industry to continue deceptively reinforcing the smoker because the Advertising Code was effective.
- Supporting Evidence and Documentation
- a. Adoption of the Cigarette Advertising Code
Fearing and seeking to avoid government regulation of cigarette advertising practices, 401 the industry promulgated the Cigarette Advertising Code in 1964. (It is noteworthy that the British tobacco industry adopted an agreement to modify advertising to avoid appealing to children in 1962. This largely coincided with the report of the Royal College that cigarette smoking caused lung cancer.] The domestic Code's provisions generally forbade the use of celebrity endorsements, advertising in college media or other media directed primarily at those under 21 years of age, health claims, and the use of models who are or appear under 25 years of age. The authority
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401. Bruff Depo. at 85-86.
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to enforce the Code was vested in a Code Administrator, the first and only of which was former Governor Robert B. Meyner of New Jersey, who was empowered to assess damages of up to $100,000.00 for violations. The Code became effective on January 1, 1965.
This much-heralded exercise in "responsible" self-regulation proved to be no regulation at all. First, the office of the Code Administrator practically died stillborn. Although he was able to affect some minor changes in advertising practices, such as persuading Liggett to drop its description of is filter as "pure white,*402 Governor Meyner sadly found that, when he sought to exercise the full scope of his authority, the tobacco companies simply withdrew from his supervision 403 The industry then lapsed into the comfortable position of policing each other's compliance with the Code.
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402 . Bruff Depo. Exh. 16 (65005 2388). Tab 229. Liggett wrote Gov. Meyner in October 1965 and asserted that it had not used the adjective "pure" for 'some months now.' Yet, in May 1964, Liggett had withheld action on deleting 'pure" until it would be raised as an issue by the Code Administrator. Bruff Depo. Exh. 15 (65005 2390). Tab 230.
403. Lorillard allegedly withdrew from the Code Authority when it was fined for running an unapproved ad. All tobacco companies except Philip Morris and Reynolds followed. Judge of Lorillard, however, testified that Lorillard withdrew from both the Code Authority and TI because Lorillard wanted to advertise True's tar and nicotine levels, a practice forbidden by the Code. (Judge Depo. at 233).
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Nor did the Code significantly impact upon the industry's historic reliance upon the twin advertising themes of glamour and safety. To be sure, the identifiable sports, film, and television celebrities were gone. in their stead appeared depictions of happy, healthy, macho, or glamorous models engaged in a variety of adventurous or social activities. Like the celebrity ads before them, these ads were designed to increase the cigarette market. John Wayne was replaced by the Marlboro cowboy and Camel's "Turk"; Maureen O'Hara was replaced by the Virginia Slims, Eve, or More lady; professional sports figures were replaced by healthy young adults climbing mountains, cavorting in the ocean, or racing cars. With the inclusion of the package warning and, later, a warning label in cigarette advertising, these advertising practices undertook the additional task of detracting the potential or current smoker's attention from the warning label. If the warning was designed to discourage smoking, the ad was designed to reassure. The warning label itself was positioned in a location in which it would receive minimal attention.
Just as the industry had experienced a decline of consumption in 1953-54, it witnessed a second decline following the release of the Surgeon General's Report. In the 1950s, the companies' defensive response was the aggressive marketing of
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filters as "safer'; in the 1960s, it was the aggressive marketing of low tar and nicotine cigarettes. These cigarettes were sometimes subtly, and sometimes overtly, offered as viable and safe alternatives to quitting. As the evidence against smoking continued to mount, a new "tar derby' ensued, with competition among certain brands moving into the "ultra-low" tar category. This effort was intended to offset the progressively greater health concerns of the smoker with progressively lower tar numbers.404'
Other varieties of cigarettes were marketed to the public with at least subtle representations of safety. These included the charcoal filter (Lark, Tempo, Tareyton), the low gas cigarette (Fact), the all-natural cigarette (Real), and the Multi-Filter
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404. An argument which plaintiffs have not yet made is that ultra-low tar cigarettes are designed to be "starter' cigarettes. The argument goes like this: Most new smokers start with a full-flavor cigarette, such as Marlboro. These' cigarettes induce the most unpleasant reactions that are associated with one's first cigarette, i.e., throwing up, turning green, etc. An ultra-low tar cigarette, the effects of which many veteran smokers liken to 'sucking air," would ease the novice into the smoking habit. The difficulty with this argument is that ultra-low tar ads are generally of the "product imagery" variety, emphasizing the tar level, rather than of the "user imagery" variety, emphasizing the lifestyle of the user. It is this latter variety of ads which have been alleged to attract the new smoker. If the advertising of ultra-low tar cigarettes should change, however, this argument might become more plausible.
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The 1967 FTC Report to Congress pinpointed the "loopholes" contained in the language of the Advertising Code: 'Cigarette advertising shall not appear . . . [o]n television or radio programs, or in publications directed
- primarily
- essential
- as a smoker
- beyond that of normal recreation
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405. Reynolds has lowered the minimum age for publication readership to 18. Horrigan
- Dewey
- Moviegoer
- Moviegoer
406. 1967 FTC Report at 24-27 (emphasis added) (Cullman Depo. Exh. 74).
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Certain ads are at least at the fringe of permissible cigarette advertising under the Code. 407 Illustrative of them are:
"
- Essential to social prominence
"
- Essential to success
"
- Essential to sexual attraction
"
- Beyond that of Normal Recreation
- Models under 25
Without mentioning the Code specifically, the 1981 FTC Staff Report cites a number of campaigns which, if interpreted as the FTC staff has chosen to interpret them, would violate the Code as well."
In the deposition testimony of industry executives, Orlowsky of RJR 409 and Forsythe of Brown & Williamson, 410/
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407. See, e.g., Tab 2 at 50-54; Tab 4 at 63-54; Tat 6 at 46-48. An unhelpful quote was also located in a January 1975 memorandum from M. G. McAllister to T.E. Sandefur: "Further, it is believed that the Code is a 'motherhood statement,' which is violated by almost all cigarette advertising using imagery.
408. 1981 FTC Report at 2-8 to 2-13.
409. Orlowsky Barnes Depo. at 94.
410. E.g., Forsythe Depo. at 58-59.
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the Advertising Code was generally described as a standard of industry "responsibility.' This description has two implications. First, it brands as "irresponsible" those older ads and marketing practices which would violate it today. The most notorious of these would be celebrity endorsements, old Camel ads, and marketing to college students. It also affords plaintiffs the argument that the ads described above, which may be interpreted as possibly violating the Code, are part of a continued pattern of corporate irresponsibility in the marketing of cigarettes.
- Possible Industry Response
Perhaps the optimal perspective on modern era cigarette advertising practices proceeds as follows: Cigarette advertising is more restricted than that for any other lawful consumer product. By law, cigarette packs and advertisements must carry a warning label;" cigarette ads cannot appear in the broadcast media; and print ads must carry the tar and nicotine content of the brand advertised. Other products, e.g., saccharin, liquor, coffee, red meat, bacon, eggs, butter, have also been associated with various diseases; none are subject to these restrictions.
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411. The companies had originally voluntarily agreed with the FTC in 1970 to display cigarette packs in their ads such that the warning label was showing. In a 1972 consent decree, the industry agreed to place the warning label in ads. The label is now statutorily required to be placed in ads.
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In addition to legal restrictions, the Industry adheres to a voluntary advertising code. This self-imposed restraint further limits the advertising techniques which may be employed by the industry, many of which are regularly used for other consumer products. A voluntary sampling code also proscribes otherwise lawful activities. At least as regards RJR, even further limitations have been placed on permissible marketing practices.412
Within these strictures, cigarette advertising utilizes the same techniques as those employed for other lawful consumer products. They attempt to portray the product and its users in the best possible light. Indeed, many cigarette ads are virtually indistinguishable from those of other products. Also like those for other products, not all cigarette ads are directed at all people. Through an expert, the concept of market segmentation would be explained and illustrated by comparing the techniques used in marketing cigarettes with those used in marketing automobiles. Just as the station wagon
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412. E.g., not studying the smoking practices of those under 18, not marketing to non-smokers, not attempting to dissuade potential quitters. Dairy and beef industry ads which might be construed as marketing to 'potential quitters" are available. Examples of ads clearly directed at children are also available.
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is not marketed to the jet-setter, so, too, Virginia Slims are not marketed to middle-aged men. 413/
- a. Cigarette Advertising Code Issues
Although there is no effective way to rebut the proposition that the cigarette companies submitted to the Code Authority only as long as it suited their economic purposes to do so, a case can be made that Governor Meyner, and, by inference, the Advertising Code, affected significant, long-term changes in cigarette marketing practices. The 1966 Report of the Code Authority of the National Association of Broadcasters details four pages of changes in cigarette advertising techniques initiated by the Code Administrator. 414 In addition, Governor Meyner issued a set of procedural regulations"" and rejected a number of ads. 416 He also promulgated a rule that cigarettes could not be advertised during television shows for which over 45 percent of the viewing audience was under 21. This particular
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413. An outline for the potential testimony of Dr. Rage: D. Blackwell of Ohio State in Galbraith was prepared, with exhibits, and illustrates this concept.
414. (RC 6007591-7594; Bruff Depo. Exh. 12).
415. Regulations Of The Cigarette Advertising Code, effective April 1, 1965 (50368 60826096). Tab 231.
416. Rejection of Advert i sements (50228 3897; 50368 5788-5798). Tab 232.
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ruling caused Reynolds to withdraw its sponsorship of
- The Beverly Hillbillies
Documents produced in Cipollone indicate that, when the Code was first promulgated, Liggett sent memoranda to its sales personnel emphasizing the sampling provisions of the Code"" and to its department sales managers concerning the sampling and health claim provisions of the Code and the role of the Code Administrator. 41 41? Plaintiffs, of course, may choose to characterize these documents as 'CYA" letters designed to create the appearance of seriousness about enforcement for the public in general and Governor Meyner in particular. However, even after the demise of the Code Authority had begun, Philip Morris issued a memorandum in 1968 indicating that it Considered that the provisions of the Code
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417. Reynolds advertised on The Flintstones, which was described in Reynolds marketing documents as an "adult comedy.'
418. Letter from G. B. Leake, December 22, 1964 (65005 2443; RC 6010048). Tab 233.
419. Letter from Samuel White (Liggett) to Department Sales managers, December 13, 1965 (65005 2442; RC 6010047). Tab 234.
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to Continue to be in effect. 420/ Internal Reynolds documents indicate a continued sensitivity to the Code as well. For example, a training manual for incoming personnel educates them concerning the provisions of the Code and illustrates violations with hypothetical examples. Contracts with models to be used in ads require the models to certify that they are over 25 years of age 421 and ad executions are visually screened to ensure that they look over 25 as well. Ads have been rejected on this basis. 42? Ads have also been rejected because the physical activity depicted in them appeared to be too strenuous. Finally, correspondence between Reynolds and other tobacco companies demonstrate that it is serious about the current practice of the companies' policing of one another's compliance.
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420. Confidential memorandum, undated (65005 2097; 1002905501). Tab 235. In the upper right hand corner of this document is the handwritten annotation "3/5/68 Approved. J. Cullman.'
421. Model Release, undated (50235 9393-9394). Tab 236.
422 . Interview with Ken Neher (May 30, 1985).
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- b . Special Modern Era Advertising Issues
- Plaintiffs' Contentions/Supporting Testimony and Documentation
(i) The Broadcast Media Advertising Ban 423/
As a result of a June 1967 ruling of the Federal Communications Commission, 424/ the broadcast media was required to devote a significant amount of broadcast time for the airing of anti-smoking commercials. The commercials had an observable impact; for the third time in two decades, cigarette consumption declined.
The tobacco industry was worried.425 Consequently, Joseph Cullman III of Philip Morris, on behalf of the Industry, appeared before Congress in 1969 and offered to remove cigarette ads from the broadcast media in return for statutory
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423. The industry's congressional activity with regard to the broadcast media ban is discussed in this section because of its impact on subsequent cigarette marketing and advertising practices. Other areas of industry lobbying activity, including particularly the opposition to the 1966, 1970, and 1985 warning labels, opposition to disclosure of tar and nicotine and carbon monoxide levels, and opposition to the disclosure of additives fall within the purview of the Join', Industry Action team.
424. Subsequently upheld by the D.C. Circuit. Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied, 396 U.S. $42 (1969).
425. In both 1968 and 1969, Harrington (Liggett) called the commercials the "most important of our many adversities in the cigarette business today.' Harrington Depo. Exhs. 2. 5 (RC 6027034) and 8 (RC 6027042). Philip Morris documents note the decline in consumption. Cullman Depo. Exhs. 43, 44, 45; Merlo Depo. Exhs. 5, 6, 7, B. Reynolds documents do as well.
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protection against potential antitrust implications. The alleged altruistic purpose of the offer -- one still echoed today"" -- was to remove cigarette ads from media which had an especial exposure to youth. On April 1, 1970, Congress passed the broadcast media advertising ban, effective midnight, January 1, 1971. 42? On that date -- following cigarette cosponsorship of New Year's Day college football bowl games cigarette advertising left the airways; so, too, did mandatory free equal-time anti-cigarette ads. This could be characterized as yet another result of the strategy described by TI's President Horace Kornegay of 'winning while seeming to lose."' In any event, cigarette consumption began to rise once again.
The tobacco industry now had a significant reservoir of advertising dollars which could no longer be spent on access to the broadcast media. Cullman had testified before Congress that he would be 'surprised" if those dollars flowed to the print media." 429 This is, however, precisely what
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426. Cullman Depo. at 255; Horrigan Dewey Depo. at 182; Judge Depo. at 592. This altruistic purpose is allegedly belied by the companies' employment of broadcast media in countries in which it is permitted. See Horrigan Dewey Depo. at 90.
427. Pub.L. 91-222, 84 Stat. 88 (Apr. 1, 1970).
428. (T 004745; Kornegay Depo. Exh. 4). Tab 239.
429. (65005 2092; Cullman Depo. Exh. 75). Tab 240.
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occurred.430
- (ii) Special Events
Cigarette advertising dollars also found their way
- (iii) Stadia Bill Boards
Similarly, the purchase of advertising space in sports arenas and stadia both attains broadcast media coverage and exposes cigarette advertising to the youthful attendance at sporting events. Finally, cigarette advertising dollars are used to place cigarettes and cigarette ads in movies, with the expectations that the movie's audience might be composed of young potential smokers -- Superman II's extensive footage of Marlboro ads is an example -- and that the movie might eventually be presented on television."
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430. Merlo of Philip Morris testified that more money was spent on point-of-sale advertising as well. Merlo Depo. at 74.
4314. Another potential allegation of an attempted circumvention of the broadcast ban involved Reynolds' advertising of Winchester Little Cigars. Winchester was classified by both the IRS and the Bureau of Alcohol, Tobacco and Firearms as a cigar.
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- (iv) Sampling
A last variety of cigarette promotion which has taken on additional importance since the broadcast media ban has been sampling. There is no better way to induce a non-smoker to experiment with cigarettes than to provide them with cigarettes for free."" Although the Advertising Code had contained some provisions regarding sampling, the industry nonetheless chose to promulgate a separate Code of Cigarette Sampling Practices in 1983. It generally prohibits the distribution of samples to non-smokers or those under 21, or near schools or any other center of youth activity. Like the Advertising Code, however, the Sampling Code is a paper tiger lacking any credible enforcement mechanism. Cigarette companies are to police their own sampling personnel, a requirement in direct
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431. Footnote Continued From Previous Page
Accordingly, beginning in 1971, Reynolds advertised it on television. Winchester marketing documents indicate an intent to 'exploit advantages of broadcast media no longer available to cigarettes." John Banzhaf complained to the FTC, which referred the petition to the Justice Department. Justice agreed with Reynolds. Nonetheless, Reynolds agreed to withdraw Winchester advertising from television in March 1973. Congress later extended the broadcast media ban to include little cigars. Pub. L. No. 93-109, 87 Stat. 352 (Sept. 21, 1973).
432. Even one STIC-developed defense expert would support this argument. See Interview with Dr. Herbert Krugman, at 3 (Sept. 19, 1985).
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conflict with the companies' goal of increasing the smoking market. In fact, reporters for the show "20/20" found RJR personnel distributing samples outside a David Bowie concert not, according to Reynolds' executives, a center of youth activity' within the meaning of the Sampling Code 433 and' to minors. 4 434 4
Possible Industry Responses
- (i) Stadia Billboards
Although the plaintiffs' argument that use of stadia billboards is designed to both circumvent the media ban and appeal to youth is attractive, Reynolds internal documents should ameliorate its impact. The documents indicate that the primary target of stadia advertising is the audience in attendance, although the company is not unaware of "secondary" exposure via television. In addition, Reynolds has canceled contracts for, stadia advertising where a substantial use of the facility would be for college football, such as Aloha Stadium in Honolulu.
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433. Horrigan Dewey Depo. at 94
434. "20/20" importuned a 16 year-old to approach sample distributors on camera until one gave him a pack of cigarettes. Horrigan Depo. Exh. 4, at 5. Tab 241.
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- (ii) Sampling
Although plaintiffs may be expected to cite the "20/20" episode as empirical evidence of the lack of efficacy of this Code, Reynolds documents indicate a seriousness about its enforcement. Contracts. with the agencies which conduct the sampling for Reynolds clearly state that samples are to be given only to smokers over the age of 21. Instructions concerning these limitations are also provided to the samplers themselves. These instructions strongly emphasize that their continued employment in the sampling program depends upon their adherence to these limitations.435
- 4. Low Tar/Charcoal Filters/Low Gas Cigarettes
- Plaintiffs' Contentions
The plaintiffs contend that certain types of cigarettes were marketed to alleviate smokers health concerns in an effort to deter them from quitting.
- Supporting Evidence and Documentation
The most notorious of the low tar ads which may be construed as offering low tar cigarettes as an alternative to quitting are those for True. The principal ads in point are:
"Considering all I'd heard, I decided to quit or smoke True. I smoke True." 436/
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435. Letter "Youth Smoking Brochure--Draft" from Thomas J. Rucker
to S. B. Witt, III, January 29, 19B5 (50365 7895). Tab 242.
436. (65005 1382; Ave. Depo. Exh. 5). Tab 243.
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"I'd heard enough to make me decide one or two things: Quit or smoke True. I smoke True." 437/
'True. Easy on your mind. Easy on your taste." 438/
The explanations of these ads proffered by Lorillard executives are somewhat disingenuous. Ave interprets the "Quit or smoke True' ads as reflecting the barrage of publicity about low tar cigarettes, but denies, in the face of the explicit language of the ads themselves, that the only two options considered by the smokers in the ads were to quit or smoke True.439 Mau of Lorillard initially conceded that the ads reflected information about low tar cigarettes which was then circulating in the marketplace,
- including the implication that low tars are "better" for the smoker
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437. (65005 1384; Ave. Depo. Exh. 7). Tab 244.
438. (65005 1385; Ave. Depo. Exh. 8). Tab 245. A variation of this slogan was: " . - . True is not only easy an your mind, it's gentle on your taste."
439. Ave Depo. at 142-43. Indeed the FTC stated that 'True advertising appears to equate the consequence of switching to True with the beneficial consequences of 'quitting'." 1975 FTC Report, at 5. Tab 246.
440. Mau Depo. at 38-39.
441.Id. at 100-101.
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are even worse. 'Easy on your taste' is credibly explained as referring to True's mildness,"" which comports with True's brand image of a good taste in a low tar. 443 Both Ave and Mau, however, testified that "Easy on your mind" means that, by settling on True, the smoker's mind need not be cluttered with the ads for other low tars and therefore the smoker need look no further for the right brand. 4 4 4 Ave said that the ad had nothing to do with the health issue.""
Gene Peck of Shock, Hardy has indicated that the True marketing documents which have been produced, but which have not been included in the 129, 770, or as deposition exhibits, make reference to the health issue. Lorillard will therefore probably have to eventually concede, as did Mau in moments of candor, that True's target market consisted of smokers who had decided to continue to smoke but were concerned about their health.446/ Publicity suggested that low tars were 'safer" and True ads exploited this information. 447/
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442. Ave Depo. at 140-41.
443. Judge Depo. at 177.
444. Ave Depo. at 140-41; Mau at 102.
445. Id. at 141.
446. Mau Depo. at 35-36, 105.
447. True was not alone. Vantage marketing documents indicate that Vantage addressed smokers' concerns about the "alleged health hazards of high tar.
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- a. Charcoal Filter Cigarettes
- (i) Lark
The Lark charcoal filter was developed for Liggett by the Arthur 0. Little Company of Cambridge, Massachusetts. The filter allegedly removed certain gases from cigarette smoke. Lark's advertising campaigns emphasized that removing the gases made the taste smoother and milder. Liggett executives have testified that this had in fact been the purpose of the filter. 448
However, a second 'promotional" campaign was conducted for Lark as well. Correspondence was sent to the Roswell Park Memorial Institute,449
- Readers' Diqest
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448. Bruff Depo. at 103; Dey Cipollone Depo., at 292.
449. (65009 0869; Provost Depo. Exh. 9). Tab 247.
450. Provost Depo. Exhs. 10 (65009 0871) (letter to RD); 11 (65009, 0874); 12 (65009 0875) (responses from RD); 13 (second .rebuttal' letter to RD). Tab 248.
451. (65009 0858; Provost Depo. Exh. 4); (65009 1314; Provost Depo. Exh. 33). Tab 249.
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in science, we believe you may wish to have this information at hand. _4521 Plaintiffs may Seek to portray the above correspondence as part of the "long range public relations program for Lark, including the important medical aspects of the program, which has been submitted to [Liggett] by J. Walter Thompson. . 4 S I I The promotion of Lark is discussed in the strict Liability/Design Defect section, at pp. _. supra.
- (ii) Tempo
Reynolds entered the charcoal filter market in 1964 with Tempo. Perhaps in reaction to the health claims being made on behalf of Lark, Tempo's initial broadcast and print media advertising contained an unusual disclaimer: 'No health claim is made for Tempo. Only the promise of easy draw, smoother taste.' The disclaimer was removed from ads in late 1964.454 Recognizing that there would not be a great
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452. Id.
453. Letter from Dan Provost to Dr. Charles J. Kensler (Apr. 8, 1963) (65009 0856; Provost Depo. Exh. 3). The J. Walter Thompson proposal itself is not included in either the 129, 770, or deposition exhibits. However, Lark ads of the era cited a report to the American Medical Association, which alleged that 'Gas in Cigarette Smoke May Be A Bigger Problem Than Tar And Nicotine. . . ." The Lark *Gas Trap Filter," of course, was alleged to solve that problem.
454. After Reynolds ceased using the disclaimer, American used it in its ads for Carlton: "No health claim is made for Carlton. Great light taste is Carlton's claim.*
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consumer movement to charcoal filters, RJR withdrew advertising support for Tempo in 1967; it was discontinued as a brand in 1974
- b. Low Gas Cigarettes
- (i) Fact
Fact, Brown and Williamson's 1976 entry into the "low gas" market, was the subject of discussion on the confidential portion of the 1981 FTC Staff Report."" The Report noted that, following Fact's initial success when introduced as a cigarette with the ability to filter certain gases, B&W had the Post-Keyes-Gardner agency devise a new campaign. A proposed strategy to distinguish Fact from its competitors would place emphasis on "More complete health protection through selective gas filtration." The agency attributed Fact's initial failure to the lack of public knowledge that gases might be harmful. It recognized that its new strategy
would mean expanding the cigarette health issue beyond tar to encompass gas. However, this would require establishing 'gas' as a meaningful health hazard in cigarettes because currently there is very low consume: awareness or comprehension of the gas problem . . . . However, if smokers are effectively educated regarding this problem, the selective gas filtration promise may
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455. (T 000463-000466; Kornegay Depo. Exh. 100).
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still be powerful, particularly among the very health conscious. 456
B&W found the implications of conceding the alleged ciliatoxic and cardiovascular ill-effects of smoking to be "appalling." 457 It chose instead to wait "[u]ntil the problem of gas becomes public knowledge through government investigation or media coverage.'"
- Possible Industry Response
Industry executives have articulated the position that their companies marketed low tar cigarettes in response to consumer demand for them."" This consumer demand is attributed to the overall trend toward lighter products,460 as well as to a response to widespread publicity, much of it
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456. 1981 FTC Report at 2-22 (T 000464) (quoting Marketing Advertising Strategy Recommendations for the Reintroduction of Fact Cigarettes, April 18, 1977).
457. 1981 FTC Report at 2-23 to 2-24 (T 000465-000466) (quoting Memorandum from G. T. Reid to F. E. McKeown, March 22, 1978).
458. 1981 FTC Report at 2-23 (T 000465) (quoting Fact 1977 Repositioning and 1978 Marketing Plan Summary).
459. Dey Palmer Depo., at 133; Dey Cipollone Depo., at 293; Spears Depo. at 320-21; Hall Browner Depo., at 19; Judge Depo. at 531; Heimann Depo. at 1-76; Osdene Depo. at 203, 205.
460. Horrigan Dewey Depo. at 74; Forsythe Depo. at 121.
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generated by the government, that low tars are somehow 'better' for the health of the smoker.461
True ads aside, there is abundant support for the proposition that the primary impetus for the consumer movement to low tar came from sources besides the tobacco a companies., Much of this evidence is detailed in Calfee's 1985 Working Paper prepared for the FTC. 462/
Three documents in the production also support this thesis:
- In a 1976 filmstrip announcement of its 'Target 5' Program, the American Cancer Society took credit for the consumer trend toward lower tar cigarettes. 4 463 / Indeed, a 1968 ACS - distributed poster proclaimed: 'The Less Tar & Nicotine You Inhale The Better!"
- In a 1973 speech to The Tobacco Institute, TI President Horace Kornegay quoted Senator Mass as stating that straight forward, nondeceptive advertising which aggressively promotes lower tar and nicotine cigarettes is in
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461. Spears Depo. at 320-21; Hall Browner Depo., at 20-21; Horrigan Dewey Depo. at 76; Mau Depo. at 32-35; Ave Depo. at 134-36; 231; Judge Depo. at 210; Cullman Depo. at 443; Forsythe Depo. at 128.
462. Calfee,
- Cigarette Advertising Health Information and Regulation Before 1970
463. Filmstrip Presentation "Target 5," c. 1976 (T 00203872) . Tab 250.
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the public interest . . ." Kornegay Ex. 63, at 4 (TI 004583). 464/
A 1966 letter from Earle Clements of TI to Cullman cites legislation which had been introduced in the Senate and which would have required disclosure of the tar and nicotine contents of cigarettes in cigarette advertising.- It also quotes from a speech by the bill's author, Sen. Magnuson, who said that "it is now the firm judgment of the Public Health Service that the lower the tar and nicotine contents of cigarette smoke the less the hazard . . . 465/
The FTC itself contributed to the public belief that low tar cigarettes were somehow 'less hazardous.' In 1968. it reported 'while recognizing that smoking any cigarette is hazardous, the Surgeon General of the United States has clearly indicated that some cigarettes may be less hazardous than others.-464' In 1970, it stated that "responsible medical opinion indicates that the reduction of tar and nicotine content in cigarette smoke decreases the hazard to the health of that element of the population which persists in smoking
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464. internal Reynolds documents indicate that the company feared governmental limitations on the tar level of cigarettes. Reynolds sought to forestall such action by unilaterally lowering the tar level of its brands.
465. Confidential letter from Earle C. Clements to Joseph F. Cullman, December 8, 1966 (1002607274). Tab 251.
466. 1968 FTC Report, at 17. This was reiterated in the 1972 FTC Report to Congress at 9, and in the 1973 FTC Report, at 5
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cigarettes . . . . " 467/ In its 1977 Report, the FTC criticized cigarette advertising for implying "that the lower the 'tar' number, the less harmful the cigarette." 468/ In a footnote, however, it noted:
- This implication may be correct
Finally, as late as the 1978 Report, issued in December 1979, the FTC conceded that "there is evidence suggesting that cigarettes with lower 'tar' and nicotine content are less hazardous . . . . *4 7 0' and that "[t]hough no final assessment can yet be made, the available scientific evidence suggests that cigarettes with low 'tar' and nicotine are less hazardous." 471
A helpful means to defuse the low tar issue might be to construct a chronology of public statements by government and private health agencies concerning the desirability of low
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467. 1970 FTC Report, at 14.
468. 1977 FTC Report, at 6.
469. Id. at 6 n.6.
470. 1978 FTC Report, at 3.
471. Id. at 6.
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tar cigarettes. juxtaposed against these statement might be the sales figures or share of market percentages for the major low tar brands, such as True or Carlton. Hopefully, the chart would show that sales increased in tempo with, or slightly behind the drumbeat of low tar publicity.
- 5. Cognitive Dissonance
- Plaintiffs' Contention
Simply stated, plaintiffs' position on cognitive dissonance asserts that, due to the negative publicity about smoking, smokers are conflicted about their smoking habit. Because of this, they seek both to deny the negatives about smoking and look for positive reinforcement of their decision to continue to smoke. Such reinforcement has been provided by the generic 'open question" ads sponsored by TI, and the public issues ads sponsored by RJR. Brand-specific advertising also serves this function by depicting carefree, happy, healthy, glamorous, and macho models engaged in athletic or social activities in direct derogation of the negative information, i.e., the warning label, contained in each ad. The label itself is intentionally positioned so as to draw minimal, if any, attention. In any event, the warning label, especially the 1970-1985 label, suffered from "wearout," while the ad executions were constantly changing.
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- Supporting Evidence and Documentation
- a. Smokers as Conflicted
A number of studies produced in Cipollone may be read as supporting this aspect of plaintiffs' argument.
A 1972 analysis by Fred Panzer of TI of a Roper opinion poll notes that only 13 percent of smokers are
- personally
An undated (probably mid-1960s) report for TI conducted by Ted Bates & Company concluded: "Because they are still smoking, smokers are
- compelled
- cause
A study of public attitudes of the 1964 Surgeon General's Report. conducted for Hill & Knowlton immediately after the Report was issued, concluded: *Although about one-half of all smokers think they may change their smoking habits in the near future, most declarations of intent appear to be stated with weak conviction," 474/
-------------
472. Memorandum from Fred Panzer to H. R. Kornegay, July 26, 1972 (1002907270). Tab 252.
473. Ted Bates & Company "Confidential Summary Report of 4 Group Interview Sessions with Smokers,- Undated (T 13370 at 13371) (emphasis in report). Tab 253.
474. (1005038380; Provost Depo. Exh. 32; CT Exh. 53)
- 321 -
The survey further indicated that the Report had generated little change in the level of personal concern about smoking.475
--A 1967 letter from Rosser Reeves of Tiderock to Earle Clements of TI commented upon the results of a telephone survey undertaken by Ted Bates: 'Heavy smokers and the younger groups of better educated are a lot less inclined to accept the Surgeon General's report, although the great majority are aware of it.'476 In addition: *A very small percentage [of those under 251 are aware of the health warning -- the smallest being among the heavy smokers.""
--A 1965 survey conducted in Oregon for TI prior to the inclusion of the first package warning *conjectured' that the label "will make heavy smokers still more defensive about their preferences.*""
--The confidential portion of the 1981 FTC Staff Report critically quoted a 1975 report prepared by Ted Bates for Brown & Williamson regarding a proposed campaign for Viceroy: "Thus, the smokers have to face the fact that they are illogical, irrational and stupid . . . the saviours are the
- rationalization
- repression
-------------
475. Id. at 1005038382.
476. (RC 6009660; Bowling Depo. Exh. 61; Kloepfer Depo. Exh. 4).
477. Id. at 6009661.
478. (65009 0507; 65009 2417; Harrington Depo. Exh. 19).
- 322 -
its own rationale." The proposed campaign would be designed to "reduce objections' to the product in order to permit smokers to repress their concerns about smoking and rationalize their smoking.479 The public version of the Report also commented upon the lack of personal relevance to smokers of the adverse information about smoking. 480.
Mr. Bruff of Liggett denied that it was an aim of advertising to reduce smokers' guilt"" or to enhance the social acceptability of smoking. 48? Mr. Horrigan also denied that it was an aim of the company to make smokers feel less guilty.483 In fact, however, the 19821986 Strategic Plan for Reynolds indicates that '[t]he major unfulfilled want of the smoking consumer will be positive support and reinforcement.' To meet this need, the Plan proposed massive advertising/communications efforts to support and encourage the
-------------
479. (T 00458-00461; Kornegay Depo. Exh. 100; 65009 2481-2483; Bowling Depo. Exh. 57).
480. 1981 FTC Report at 4-15 to 4-16. It should be noted, as regards all mention of the 1981 Staff Report, that the FTC took no position on it. See 1980 FTC report, at 2-3 (purpose of Staff Report was to "stimulate an open dialogue" concerning the need for additional governmental or private action concerning cigarette advertising).
481. Bruff Depo. at 97.
482. Id. at 255-17.
483. Horrigan Dewey Depo. at 97.
- 323 -
right to smoke.- Advertising campaigns which portray people in smoking-related situations would be designed to "heighten the social acceptability of smoking while conveying the appropriate brand imagery." The 1984-1988 Strategic Plan proposed a campaign to enhance the self-image of the smoker, and the 1985-1977 Plan"484 spoke of opportune industry efforts to enhance the social acceptability of smoking.
- b. Ads Rendering Warning Inadequate by Reassuring Smokers About Health Concerns
While the May 1981
- FTC Staff Report on the Cigarette Advertising Investigation
A September 1966 confidential report of the Code Authority of the National Association of Broadcasters questioned whether ads should depict smokers being engaged in any athletic activity; whether commercials portraying people smoking both in the morning and at night are encouragements to smoke; whether the mere use of the word "filter" may be misleading; whether cigarette ads make undue use of hero images, popularity, natural surroundings, catchy jingles, premiums, romantic appeals, and smoking on camera, whether cigarette companies should sponsor sporting events; and
-------------
484. Marketing documents for Vantage indicate that Vantage was designed to make smokers feel less guilty about smoking.
- 324 -
whether tobacco should be described as mild or light. 485
--The 1967 FTC Report to Congress described the two principal elements of cigarette advertising as "a portrayal of the desirability of cigarette smoking and assurances of the relative safety of smoking . . . . Thus, cigarette smoking was depicted as being satisfying in itself; associated with desirable persons and pleasurable activities; and carrying relatively little risk." 486
The 1981 Staff Report, based largely upon a 1980 paper prepared for the FTC, 487/ relies upon an abstract versus concrete information distinction to reach the conclusion that cigarette advertising derogates the warning label. it claims that people rely more on concrete that abstract information. The language of the warning is deemed abstract; the 'thematic imagery" of cigarette ads is concrete. Thus, "[i]ndividuals seeing these cigarette ads are much more likely . . . to use the concrete positive images of smoking in deciding whether or not to smoke than they are the abstract general warning." 488
-------------
485. (RC 6007605-7614; Bruff Depo. Exh. 12).
486. 1967 FTC Report at 14-15 (Cullman Depo. Exh. 74).
487. Cohen & Srull,
- Information Processing Issues Involved in the
- Communication and Retrieval of Cigarette warning Information
488. 1981 FTC Report at 4-15.
- 325 -
- C. Positioning the Warning Label
In the deposition of Mr. Keim of Philip Morris, Marc Edell led him through the sequence of the parts of an ad that the eye observes. 489 Among the last items observed is the warning label. Mr. Keim indicated that he had been advised by PM counsel to place the warning label at either the bottom left or the bottom right of the ad. 490 Mr. Merlo (PM) testified that the warning label is already in the ad when it comes from the advertising agency. It is usually located, however, in the lower left or lower right hand corner of the ad. 49? Finally, Ave of Lorillard indicated that ad agencies have wide latitude in deciding where to place the label."" In the end, "aesthetics" dictate the positioning.""
Gene Peck (SH&B) has indicated that Lorillard has produced eye-movement studies. They are not among the documents received to date. Reynolds has at least one occasion utilized eyemovement studies. This has not been produced to plaintiffs. The possibility exists that those documents may support this aspect of the plaintiffs' argument.
-------------
489. Keim Depo. at 76 et seq.
490. Id. at 76.
491. Merlo Depo. at 47.
492. Ave Depo. at 218-19.
492. Id. at 220.
- 326 -
- d . Label as Worn-Out
The contention that the warning label is worn out is drawn directly from the 1981 FTC Staff Report. It argues, en route to its endorsement of rotating warning labels, that the repetition of the same warning label over a fifteen year period had caused the label to become "overexposed." It concludes, without empirical support, that the label is 'no longer read or noticed by most Americans exposed to cigarette advertising 494
- Possible Industry Response
STIC has assembled a stable of experts who will take issue with the concept of cognitive dissonance as a valid psychological premise. Advertising experts will testify concerning the purpose"" and effect of cigarette advertising and express the view, based upon empirical studies, that advertising plays almost no role in the decision to smoke. with respect to the cognitive dissonance issue, it is the warning label which derogates from the ad, not vice versa.
-------------
494. -1981 FTC Report at 4-11.
495. The industry may find an unlikely ally on the advertising issue in Dr. Ernst L. Wynder. In a letter to the editor of The New England Journal of Medicine, Wynder and Dr. Dietrich Hoffman concede that "[t]he main purpose of advertising appears simply to pit one brand against the other.- August 16, 1979 (T 000530). Tab 255.
- 327 -
Finally, warnings experts will testify, based upon FTC-commissioned studies, that there is a virtually universal and unprecedented degree of awareness of the alleged health hazards of smoking. The 1970-1985 warning label was not "worn out.- If people did not read the label in each advertisement, it is because they already knew the information contained in it. People do not read red octagonal traffic signs either; they already know that they say "STOP."
None of the social acceptability campaigns make health claims or deny any charges against cigarettes. The plaintiffs* objection to "social" support for smokers is an extension of the prohibition agreement. The tobacco companies are in the business of selling cigarettes to smokers. The industry should not be defensive about the social acceptability issues whether they are manifested in industry or brand activities.
- 6. Appeals to Youth
- Plaintiffs' Contention
Plaintiffs contend the tobacco companies market cigarettes to persons under 18 who are incapable of understanding the risk involved in cigarette smoking.496
- Supporting Evidence and Documentation
-------------
496. :See Speech by William Townsley, March 21, 1985. Tab B.
- 328 -
Reynolds attests that it does not market to anyone under 18 years of age. 497 "' Representatives of other tobacco companies have testified that their companies do not market to those under 21. 4 9 5 Moreover, Mr. Harrigan has testified that Reynolds does not conduct research on those under 18. 49? However, a number of documents which indicate an occasional interest by Reynolds personnel in the under-18 market. In addition, a review of Reynolds account files at the Batten, Barton, Durstine & Osborne advertising agency uncovered a file folder of public reports concerning the smoking habits of teenagers.500'
Two examples of such material were located in the Cipollone production. In Philip Morris' files was a 1963 survey of teenage smoking habits. 501 In TI's files were
-------------
497. Harrigan Dewey Depo. at 85; Orlowsky Barnes Depo. at 69.
498. Forsythe Depo. at 151; Dey Palmer Depo. at 55-56; Lougee Depo. at 411; Judge Depo. at 305.
499. Harrigan Dewey Depo. at 143-45.
500. Box No. C8343, summarized at BBD&O Document Review at 13-14 (Jan. 9-10, 1986). Tab 256.
501. "Teen-Age Cigarette Purchasing and Smoking Habits In The U.S.A. 1963 An Independent Study by Gilbert Youth Research,' 1963 (1005040495). Tab 257. Merlo of PM also conceded that PM had access to outside surveys of when people begin to smoke. Merlo Depo. at 83.
- 329 -
reports of two 1974 polls of teenage smoking. 502
The most significant indication of an interest in marketing to youth was contained in the confidential version of the 1981 FTC Staff Report. 503 It extensively quotes from a 1975 report prepared for Brown & Williamson by the Ted Bates agency concerning a proposed campaign for Viceroy. The document proposed that B&W: "Present the cigarette as one of a few initiations into the adult world. Present the cigarette as part of the illicit pleasure category of products and activities . . . . In your ads create a situation taken from the day-to-day life of the young smoker but in an elegant manner have this situation touch on the basic symbols of the growing-up, maturity process. To the best of your ability (considering some legal constraints) relate the cigarette to 'pot wine, beer, sex, etc." 504 Forsythe of B&W was questioned about these allegations during his deposition. However, the events in question preceded his employment with B&W and he could not comment upon them.""
-------------
502. Letter from Anne H. Duffin to Burns W. Roper, October 30, 1974 (T 0020986). Tab 258.
503. (TI 000457; Kornegay Depo. Exh. 100).
504. Report at 2-18 (TI 000460).
505. Forsythe Depo. at 99. No action was taken on this proposal. An ad agency proposed it. It was not seriously considered and
- 330 -
The 1967 FTC Report to Congress, 505 in addition to its general criticisms of cigarette advertising, seized upon a Lucky Strike campaign that it claimed complied with the letter, but evaded the spirit, of the Advertising Code: "Lucky Strike separates the men from the boys -- but not from the girls. The report queried: 'In which category -- with 'the men' or with 'the boys' -- would any normal teenage male want to place himself. This same criticism of compliance with the letter of the Code 'while completely flying into the face of the
- spirit
- TV Guide
-------------
505. Footnote Continued From Previous Page
was quickly rejected. it certainly is not evident that cigarette any ads relate to pat, beer, or sex. Plaintiffs should be put to their proof of demonstrating any ads fit this strategy. The B&W incident was an isolated instance. Besides, its' not a sin to think about sin; its' only a sin to actually commit the sin. Brown and Williamson won a libel suit on this issue, so it appears the industry has nothing to fear or hide with respect to this incident. It may well be that rejection of this campaign demonstrates ultimate corporate responsibility. The ad agency suggested a way to increase sales, but B&W rejected it.
506. Cullman Depo. Exh. 74.
507. 1967 FTC Report at 27.
508. Letter from Charles 0. Whitley to Horace R. Kornegay, September 27, 1979 (T 003514). Tab 259.
- 331 -
"a very youthful slender woman in a bathing suit smoking a cigarette, " Rep. Whitley noted that "it is extremely hard to argue that there is not a strong and direct appeal to teenagers in the type of advertising referred to.' Although he recalled that the a ad was for Silva Thins, he might have been discussing executions in the current "Light My Lucky,- Newport, or Salem Spirit campaigns.
- Possible Industry Response
This issue is so subjective and susceptible to emotional appeals as to render it incapable of a reasoned, articulate response. The industry may, of course, point to the Advertising Code, but that will be unlikely to dissuade the juror who is otherwise convinced that, for example, the "Salem Spirit" ads are aimed at youth. In addition, although Reynolds will vigorously resist the production of its marketing studies as proprietary, it will at some point have to release some documentation which highlights its almost obsessive interest in the "18 to 21" year old market.
The best possible way to defuse this issue is to rephrase it.
- Plaintiffs
- defendants
- 332 -
variety of STIC-generated expert witnesses who will testify, based upon empirical studies, that advertising is among the least influential factors in teenage smoking. Parental or sibling example and peer pressure are uniformly the most significant. This data will almost certainly accord with the jurors' own common sense or experience. The argument may then be made that, if the jurors know this by their common sense, so, too, must the tobacco companies. Why, then, would they waste money in appealing to teens?
The plaintiffs' addiction expert, Dr. Jaffe, states the following:
There is general agreement that people begin to smoke for one or more of the following reasons: curiosity; to conform to the norms of a group to which they want to belong; to express rebellion; and to imitate the behavior of people who appear to have greater status, as in the case of young people wishing to appear more grown up. 509
Notably absent is any mention of brand advertising. The deposition outline of plaintiffs' addiction expert should contain a section designed to gain explicit concessions that brand advertising plays little or no role in the decision of young people to begin smoking.
-------------
509 . "
- Tobacco - the devil's weed
- 333 -
The industry should not be defensive about surveys of teenage smoking habits. Nothing prohibits people who work for tobacco companies from learning of the habits and preferences of consumers, including minors. The instances of surveying are not pervasive. In fact, they can be described as "isolated." The discovery does not indicate that any specific marketing action was based on these surveys. The best response as to acknowledge whatever was done, but state no marketing action was taken. Business planning decisions such as whether new plants are needed might be based on projections of the numbers of smokers in the future.
- 334 -
- V1. ADDICTION/ABILITY TO QUIT' 510
- Plaintiffs' Contentions
The "addiction' issue is generally considered to be of central importance in smoking and health litigation. Plaintiffs are expected to contend that there is a subclass among the 55 million smokers whose dependency is so great that they are unable to quit.$' I/ Plaintiffs are also expected to argue that addiction, when combined with the "overpromotion" cigarettes substantially impairs these smokers' ability to make a free choice.""
-------------
510. The Addiction/Ability to Quit section of this Report should be read in connection with the relevant portions of *the 'Addiction Witness Issues," "Summary of Addiction Presentation," "Brief Outline of Key Points on Addiction" and DSM-III. Tabs 176 and 177.
511. In public statements, plaintiffs have cited Surgeon General Koop and a JAMA article for the proposition that the vast majority of smokers have tried to quit. Plaintiffs' Response to Tobacco Industry Defenses, April 17, 1986. Tab 6.
512. Plaintiff's Answers to Defendants' Contention Interrogatories in Cipollone, May 28, 1986. Tab 4.
Plaintiffs may also contend other factors contribute to "impaired capacity." These include:
1. Avoidance of tobacco withdrawal syndrome;
2. The highly overlearned nature of the habit that stems from the repeated effects of nicotine which rapidly
- 335 -
Plaintiffs have stated this contention specifically in
Cipollone:
Mrs. Cipollone's dependency, combined with her lack of understanding of the health consequences of smoking due to the manner in which the defendants marketed and promoted their products, caused her
- not
Rose Cipollone had a strong *need" for cigarettes based on her psychological as well as physiological dependency . . . . Rose Cipollone never fully understood the health hazards of smoking. This lack of understanding combined with her dependency prevented her from stopping smoking. 514
Dr. Jaffe elaborated as follows:
Mrs. Cipollone gives a reasonably typical history of a heavily dependent smoker who after trying to stop but failing thereafter avoids making serious efforts but temporizes by switching to what she felt were safer cigarettes. Even lung surgery did not stop her entirely, but from time to time she had a puff or
-------------
512. Footnote Continued From Previous Page
follow the inhalation of cigarette smoke (75,000 puffs per year); and
3. The likelihood that a desire to use tobacco is elicited by environmental cues, such as the ubiquitous presence of other smokers and the widespread availability of cigarettes.
DSM-III at 177. Tab 177.
513. Plaintiff's Answers to Defendants' Contention Interrogatories in Cipollone, May 28, 1986. Tab 4.
514. Id.
- 336 -
two on a cigarette. She experienced craving and withdrawal. To the degree that dependence reduces anyone's capacity to make rational choices [or to make free and fully flexible choices], Mrs. Cipollone had lost her capacity to respond rationally (in a fully flexible and free way] to the information on risks of smoking provided by the government and other sources of information. 515
- a. Definition of Addiction
At a recent seminar on toxic tort litigation, Alan Darnell devoted approximately half his outline to the topic of addiction."" Although the outline acknowledges several definitions, it appears that the New Jersey plaintiffs and their addiction expert will urge the definition of "tobacco dependence" found in DSM-III 517 The DSM-III 518 definition is as follows:
a. Continuous use of tobacco for at least one month with either an unsuccessful attempt to stop or reduce the amount of tobacco use on a permanent basis, or
-------------
515. Jaffe Depo. Exh. 21. Tab 197. The bracketed material in the text reflects changes made during Dr. Jaffe's deposition. Jaffe Depo. at 61112.
516. A. Darnell, 'Plaintiffs' Response to Tobacco Industry Defenses," April 17, 1986. Tab 6.
517. Indeed, Dr. Jaffe prefers not to use the term addiction." He uses the terms "severe dependence' or "compulsive use."
518.
- Diagnostic and Statistical Manual of Mental Disorders
- 337 -
b . Development of tobacco withdrawal, or
c. Presence of a serious disorder (presumably lung cancer, emphysema, or cardiovascular disease] that the individual knows is exacerbated by tobacco use. 519 DSM-III also identifies eight symptoms of "Tobacco Withdrawal.""" If at least four of the symptoms are present within 24 hours of cessation of tobacco use, tobacco withdrawal is said to have occurred. 521
Plaintiffs' addiction expert's testimony largely coincided with DSMIII, and relied extensively on the arguably interrelated physioactive effects of nicotine and presence of related withdrawal symptoms. With respect to the physioactive effects, Dr. Jaffe testified in some detail about the effects of nicotine on the body, including:
-------------
519. DSM-III at 176.
520. These symptoms are:
1. craving for tobacco
2. irritability
3. anxiety
4. difficulty in concentrating
5. restlessness
6. headache
7. drowsiness
8. gastrointestinal disturbances
DSM-III at 159. See Jaffee Depo. at 262-63.
521. Darnell has asked the industry witnesses if they are aware that some of eight symptoms occur. Most of the witnesses say they are not aware that the symptoms occur.
- 338 -
1. Multiple endocrine effects
2. Effects on specific receptors within the brain which seem to be relevant to its biological actions
3. Alerting effect on the EEG
4. Increased alertness
5. Increased blood pressure
6. Prolonged and profound constriction of blood vessels
7. Acceleration of the heart
8. Stimulation of certain nerve receptors in the adrenal glands producing a release of epinephrine into the circulatory system
9. Stimulation of the gastrointestinal system
10. Rise in the cortisone level
11. Change in neuro hormones
12. Change in growth hormones
13. Release of diuretic hormone from the pituitary gland
14. Change in patella reflex
15. Change in muscle tone
16. Increased concentration
17. Anti-anxiety agent
18. Reduces stress
19. Reduces anger
20. Relaxing
21. Euphoria
339 -
22. Pleasure
23. Facilitation of memory
24. Decrease in appetite
25. Decrease in irritability 522/
Dr. Jaffe, loosely placed tobacco dependence as evidenced by psychoactivity and withdrawal symptoms, on a continuum which ranged from sugar which has no withdrawal symptoms, to caffeine which has some withdrawal symptoms, to nicotine and opiates which have more pronounced withdrawal symptoms. Users of sugar and caffeine exhibit little or no craving. Although the craving for heroin is usually greater than the craving for nicotine, Dr. Jaffe has seen instances where nicotine craving was greater. 523/
The most common way to determine if a smoker is physically dependent upon tobacco is 'to deprive the individual of tobacco and see what happens." 524 Dr. Jaffe was unable
-------------
522. Jaffe Depo. at 160-61, 395-412, 445, 464-81, 550, 703-04, 711.
Note that some of these responses support the benefit side of the risk/benefit analysis. Similarly, many of the physiological changes noted by Dr. Jaffe in the text are supportive of the *health" claims made in old cigarette advertising.
523. Jaffe Depo. at 126-28, 256-59, 286, 330, 397-410, 436-37, 480, 549.
524. Id. at 269.
- 340 -
to say definitively if deprivation of nicotine is the cause of the withdrawal symptoms, but he suspected it was. 525 Dr. Jaffe stressed the obvious: dependence varies in severity, from a mild kind of craving to an intense need or compulsion."" Dr. Jaffe identified a type of person who was "tobacco dependent" but not physically dependent: a seriously ill person in a hospital who sneaks cigarettes three to five times a day. A clinician would 'be within the bounds of the concepts to diagnose tobacco dependency, even though that individual was no longer physically dependent in a way that would even be detectable."' 527 Absence of withdrawal syndrome indicates an absence of physical dependence or neuro adaptation. 528
- b. Corporate Responsiveness: Addiction
The plaintiffs will also contend that while the Industry has known of credible evidence that cigarettes were addictive, it failed to investigate the charges, and failed to warn that cigarettes may be addictive. In order to negate the
-------------
525. Id. at 263.
526. Id. at 111, 221 & 225.
527. Id. at 281-82.
528. id. at 255, 283.
- 341 -
duty to warn, it is incumbent upon the industry to prove cigarettes are
- not
- Supporting Testimony and Documents
Given the importance of the 'Ability to Quit" issue, plaintiffs have devoted relatively little discovery to addiction. The plaintiffs have, however, established, first that neither the companies individually, nor the industry collectively have undertaken to determine whether or not cigarettes are addictive, even though the industry was aware of allegations of the addictive nature of cigarettes. Second, they have gained damaging admissions from industry witnesses and from industry documents that some persons (not among the 35 million smokers who have quit) have great difficulty in quitting. These persons are long term heavy smokers who have certain specific personality traits.
- a. Liggett
In
- Cipollone
- 342 -
exact date of its first awareness of addiction allegations. 529/
Nor has Liggett conducted any research concerning addiction. K.V. Dey stated that he does not know why people smoke, has not seen any research on the subject, and does not think Liggett has done any research on the issue. 530 Mr. Dey denied being aware that some people have difficulty quitting. 531
- b. Reynolds
Reynolds admitted in its answers to interrogatories in Barnes, Berko, and Haines that "Reynolds is aware of articles discussing cigarette smoking and addiction." 532 Reynolds also stated, 'Indeed, claims that cigarette smoking may be habit-forming or addictive have been widely known for centuries -- long before Reynolds was incorporated in 1899.-111/ The answers also cite the 1964 Report to the Surgeon General for the proposition that cigarette smoking is not addictive. In Haines, Reynolds added, 'No study has been
-------------
529. See Liggett Answers to Dewey Inter Interrogatories. Tab 183.
530. Dey Depo. at 257, 260.
531. Id. at 260.
532. E.g., RJRT Answers to Haines Interrogatories. Tab 182.
533. Id.
343 -
conducted since (the 1964 Report] to warrant a change in that conclusion." 534 In Dewey, Reynolds acknowledged that cigarette smoking may become a habit.""
Although the plaintiffs have not vigorously pursued the deponents' definition of addiction,"" Edward Horrigan defined addiction to mean a total dependence and almost total inability to do without or to give it up. Since 30 million people have quit voluntarily, Horrigan concluded cigarettes are not addictive."" He admitted that some smokers are "attached" to cigarettes.538/ Mr. Horrigan also testified that Reynolds does not "have any position" with regard to whether any segment of the smoking population has difficulty quitting. Mr. Horrigan also testified that he has 'never been involved in a discussion" on the subject of whether smokers are "unable to give up the habit at least during some decades of their lives." 539 G. Robert DiMarco stated in Browner that
534 . Id.
535. RJRT Answers to Dewey Interrogatories. Tab 183.
536. Larry Hall testified in Roysdon that he does not know the scientific definition of addiction, but cigarettes do not fit his personal definition. Hall Roysdon Depo. at 38-39.
537. Horrigan Dewey Depo. at 162.
538. id. at 165-66.
539. Id. at 160.
- 344 -
Reynolds does not accumulate data related to addiction because "we don't believe there is addiction,- but if there were a concern Reynolds would rely on CTR."" Although he is aware of allegations that the use of tobacco is addictive,"" DiMarco did not know if CTR has ever funded pertinent research.
Documents produced by Reynolds reflect that relatively little attention was given to addiction literature. Thus, although Dr. Piehl stated in 1979 that he brought to bear on the subject of smoking behavior "10 years of reading and reviewing the most relevant literature in this field,-"" two RJRT documents indicate that Reynolds had not intensively studied the addiction literature as late as 1979.543' In one, Dr. Piehl identified the need for a "behavioral scientist to review, evaluate and coordinate information in the smoking
-------------
540. DiMarco Browner Depo. at
541. DiMarco also stated:
If you define a drug as a material which is physiologically active, yes, (nicotine] is a drug." DiMarco Roysdon Depo. at 29-30.
542. "Smoking Behavior--A Review,' D. H. Piehl, September 1979 (50290 9651). Tab 188.
543. Position Paper
- Behavioral Aspects of Smoking
- Significant Smoking Behavior Publication
- 345 -
behavior area." 544 The other document, an undated (c. 1978) 'Position Paper', 545 similarly stated: "A comprehensive literature review (of smoking behavior including the steps involved in quitting] was not conducted as complete understanding requires a competent behavioral scientist. The field is complex and controversial and we are basically ignorant and dependent on outside evaluation. This issue is based only on general awareness of the literature over the last 5 years, our competitor's activity and personal judgment.-""
Despite the foregoing, some Reynolds documents concede that cigarettes may be extremely difficult to quit. A 1969
-------------
544. Id.
545. RJR Secret Position Paper 'Mission Statement for Behavioral Aspects of Smoking," c. 1978 (50089 2080) Reynolds' documents rarely use the word "addiction.' "Why People Smoke" or *Satisfaction' are arguably code words which encompass the broad concept of addiction. Tab 187.
546. Id. This "Position Paper" also states that PM has been studying various behavioral aspects of smoking for the last 15 years with its own professional staff headed by a research psychologist, Dr. William Dunn. Dr. Dunn will likely surface as a deponent. He is the editor of a book,
- Smoking Behavior: Motives and Incentives
- sustaining
- 346 -
memorandum to R. A. Blevins from T. P. Haller contains a number of damaging admissions:
a. "Habituation is . . . a very compelling phenomenon and the potential threat of cigarette deprivation is a serious matter to many smokers.'
b. "[P]eople, once over the initial novelty of starting, smoke in order to regulate their feelings.
c. 'The most persistent pre-condition for the establishment of the smoking practice in an individual is a high degree of - - . stress
d. "[O]nly those who smoke for purely physical reasons (taste, etc.), or those who find an alternative outlet for emotional release can be successful quitters. The best information to date suggest (sic) that less than one-third of the people who make a serious effort to stop smoking are successful for any significant period of time."
e. "The partial failure of drugs confirms that smoking is not simply a physiological need, but a deep-rooted psychological one."
The memorandum describes in some detail the psychological profiles of the 'man who cannot quit' and the *woman who cannot quit." 547 The 1979 memorandum in which Dr. Piehl identified the need for a behavioral scientist, also contains the following damaging admissions:
-------------
547. memorandum from T. P. Haller to R. A. Blevins, Jr., "Important Psychological And Pharmacological Aspects Of Cigarette smoking," June 4, 1969 (50479 0813). Tab 189.
- 347 -
a . "Personality may determine a predisposition to start and stop smoking."
b. "Smoking is a strong habit, easy to start but hard to stop."
c. "Serious smokers smoke to prevent withdrawal symptoms."'548/
These statements support plaintiffs' contention that a subclass of smokers exists which has great difficulty in quitting.
In 1979, Dr. Piehl also reported that two independent researchers had found six distinctive patterns of motivation for smoking. As a convenience for plaintiffs' attorneys, Dr. Piehl included a chart summarizing the six types of smokers which could be displayed to the jury. The fifth group is:
- Addictive
A sixth category accounted for 15% of the 60 million smokers. "They tend to smoke heavily, to have a manual occupation, to have friends who smoke,
- and find it very difficult to stop moking
-------------
548. Dr. Piehl noted on another occasion that the conference sponsored by BAT in 1978 concluded 'Serious smokers smoke to prevent withdrawal symptoms." See Tab 186.
549. Dr. Blau is on record before Congress as stating, "Some who smoke seem unable to give up the cigarette habit, at least during certain decades of their lives.' See Horrigan Depo. Exh. 9. Tab 190.
550. D. H. Piehl, "Smoking Behavior - A Review,- September 1979 Tab 196.
348 -
According to Dr. Piehl's memo, a 40-50 percent abstinence" rate at the end of two years is the best abstinence rate obtained by cessation clinics, which is up from a 25-30 percent abstinence rate that has usually been the norm, regardless of the approach of the cessation clinics. Cessation was viewed a matter of concern and of challenge. The "Position Paper" referred to above suggests that marketing concerns (avoiding a reduction in the number of smokers) was a major concern with respect to the addiction issue:
For the first time progress in the area of smoking modification research presents a potential serious threat to the future of RJR Tobacco. Implementation of a successful smoking cessation program could significantly reduce the number of smokers.
Although motives and incentives for smoking are very complex, increased understanding can be both an opportunity and a threat to the future of RJR Tobacco. A breakthrough in behavioral scientists' understanding could be used to develop programs to severely limit the number of new smokers . . . . To meet the R&D and marketing needs of the business in the 1980's we must have a better understanding of the smoker." 551
Prior to 1980. very little research was conducted or funded by RJRT to evaluate the possibility that cigarettes possess habituating or addicting properties. Mr. Horrigan
-------------
551. See Tab 185.
- 349 -
admitted that Reynolds has the research capability to measure nicotine and how it affects the body and has studied the effects of nicotine. 552 He said he was unaware of any RJRT research "to determine why those people who miss it do miss it." 553/
Internal documents describing the effects of nicotine are also problematic. Plaintiffs have selected at least one Reynolds' document, 554/ and will probably obtain a plethora of them from various sources, concerning the physiological effects of nicotine on the human body. The typical language contained in these documents is highly technical and sounds "worse" than it really is. 555
-------------
552. Horrigan Dewey Depo. at 166, 168-69.
553. Id. at 167.
554. Memorandum "Nicotine Research,* from W. M. Henley to D. H. Piehl, November 9, 1976 (50053 6141). Tab 203.
555. For example:
Nicotine interacts with cholinoceptive receptors at neural junction and thus initiates normal impulses. Those functions of the body which are normally under neural control by a steady-state normal rate of nerve impulses will thus be increased when nicotine reacts with these cholinoceptive nerve junctions. A nerve impulse is normally transmitted across a neural junction by the chemical acetylcholine. Nicotine is able to very effectively imitate the action of acetylcholine. Nicotine thus augments the stimulation of those tissues which have cholinoceptive receptors.
- 350 -
More generally, Dr. DiMarco admitted that nicotine is a drug--one which is physiologically active.""' At least two RJRT documents compare opiates and nicotine and find that they are "quite similar." 557
Other internal RJRT documents authored by Claude Teague discuss nicotine as the single constituent in cigarette
-------------
555. Footnote Continued From Previous Page
The body functions which are controlled by cholinergic nerves are mostly parts of the autonomic nerve system. Included in these functions are the gastrointestinal tract (stomach, intestinal muscle contractions), heart rate control, peripheral blood vessel constriction and skeletal (postural) muscle control. The influence of nicotine on these functions leads to the following symptoms:
1. Elevated heart rate
2. Elevated coronary flow
3. Elevated blood sugar level
4. Lowered cutaneous temperature at extremities
5. increased blood flow in skeletal muscles
6. Reactive release of adrenalin
7. Alteration of brain electrical potential pattern
8. Inhibition of patellar reflex
Memorandum, 'Nicotine Research," November 9, 1976. Tab 203. These symptoms are confirmed by plaintiffs' addiction expert, Dr. Jaffe.
556. See note 323, supra.
557. Research Dealing with Nicotine and Erkephalins, from T. A. Perfetti to D. J. Piehl, January 5, 1981 (50298 1328). Tab 206; Research Proposal, from T. A. Perfetti to D. J. Piehl, February 17, 1978 ( ). Tab 207.
- 351 -
smoke that is responsible for its habit-forming effects and urge the company to exploit these effects commercially. For instance, in a 1972 memorandum Dr. Teague wrote, "[n]icotine is known to be a habit-forming alkaloid, hence the confirmed user of tobacco products is primarily seeking the physiological 'satisfaction' derived from nicotine." The memorandum continues, "our industry is then based upon design, manufacture and sale of attractive dosage forms of nicotine." In fact, Dr. Teague referred to nicotine as the
- sine qua non
One further document deserves mention. In 1976, Reynolds considered advertising for reintroduction of the defunct charcoal-filtered Tempo cigarette which opened with the following proposed copy:
If you've switched to low 'tar' cigarettes only to find that you are smoking more than ever to get the full satisfaction of your previous higher 'tar' brand, Tempo is for you. Tempo is lower in
-------------
558. Id. at 33-34 (footnotes omitted).
- 352 -
'tar' than 98% of all brands sold. But unlike any other low 'tar' Cigarette, Tempo contains the unique Carbon-12 System... that actually opitimizes
- nicotine
Unless Reynolds specifically repudiated this campaign at the time it was proposed, the ad contains admissions related to the ability to quit issue. It recognizes that smokers compensate to maintain a certain level of nicotine. Compensation is an indication of tolerance which is, in turn, an indication of addiction.
Whether or not Reynolds ran the ad, the documents indicate Reynolds developed a method of reducing tar but maintaining nicotine levels. *Carbon-12 System' folds nicely into Claude Teague's strategy to develop a method of maximizing nicotine delivery. Thus it appears Reynolds accepted Dr. Teague's thesis, at least to the extent of developing a marketable method of maximizing nicotine delivery and developing an advertising campaign to support it.
At least one Barnes selected Reynolds' document indicates major compensation for reduced nicotine occurs above certain levels.560
-------------
559. Advertising copy from Latham Laird & Kudner, Inc., July 6, 1976 (50099 6135 to 6140). Tab 208.
560. Memorandum "Topline Summary: FFLT Nicotine-Satisfaction Study,' from C. L. Newmann to 0. H. Piehl and R. A.
353 -
- c. Philip Morris
Joseph Cullman (PM) stated in his deposition that he was aware that *a lot of people haven't been able to stop smoking." He testified he did not know the reason they were unable to stop,"" and denied awareness of any industry-funded studies to determine why people can't stop smoking. Plaintiffs then presented two documents to Mr. Cullman. In 1968, Dr. Maurice Seevers, Chairman of the AMA's Committee for Research on Tobacco and Health, reported to executives and general counsel of the tobacco companies that "smoking is a partly psychological and partly pharmacological drive.'" 563/ Dr. Seevers also reported: "Increases in heart rate and blood pressure suggest that one of the drives to smoke may be a blood pressure too low to be comfortable." 564/ The
-------------
560. footnote Continued From Previous Page
Lloyd, March 23, 1981 (50051 0780). (Dr. Rodgman is copied). Tab 200. See also Report "Pharmacologic Factors Related To The Influence Of Smoking And Nicotine On Behavior,' from ADL to Reynolds, September, 1981 (50326 0514). Tab 201. 561. Cullman Depo. at 239. 562. Cullman Depo. at 239-40.
563. Meeting of the Committee for Research on Tobacco and Health, January 30, 1968. See Tab 163.
564. Id.
- 354 -
other document is a consumer letter, typical of hundreds which no doubt exist in industry files, which states the consumer is unable to stop smoking. 565
Dr. Dunn, PM's research psychologist, has publicly stated cigarette smoking is a 'difficult habit to discontinue." 566 Dr. Dunn also edited a book entitled
- Smoking Behavior Motives and Incentives
- d. Lorrilard [sic]
Dr. Spears, Lorillard's research director, was questioned at length about addiction. Dr. Spears stated that in some people, psychological and emotional problems are factors in the ease or difficulty in. giving up smoking. Although these factors have been known since the 1960's, Lorrilard has never advised people who had these types of problems that it would be difficult for them to stop smoking."" Dr. Spears was aware of a series of NIDA
-------------
565. Letter from George M. Boosalis to the Tobacco institute, January 23, 1970. Tab 195. Some products liability cases hold that complaints from consumers may be enough to trigger a duty to warn. See, e.g., Feldman v. Lederle Laboratories, 479 A.2d 374, 387 (N.J. 1984). Tab 184.
566. Article, Arkansas Gazette, "Jury Still Out on Smoking Psychologist Says," June 16, 1976. Tab 191.
567. Spears Depo. at 327-29.
- 355 -
monographs suggesting that cigarette smoking is addictive. Furthermore, Dr. Spears is unaware of any papers stating that cigarettes are not addictive."$ 568 Because the total process of addiction, pharmacology and biochemistry is not understood, no one can prove that smoking is not addictive. Despite the acknowledgment of the possibility of the addictive nature of cigarettes, Dr. Spears has never conducted any investigation to find out why people have difficulty in stopping smoking. SIC/
Curtis Judge acknowledged that some people have difficulty stopping and some do not, but Lorillard has never done any research to ascertain why that is so. He does not know why Lorillard has not conducted addiction research.' 7 Mr. Judge said he does not know if people develop psychological dependency on cigarettes. He has thought about it, but has drawn no conclusion."" He has not done anything to ascertain whether cigarettes smoking results in
-------------
568. Spears Depo. at 339-40.
569. Spears Depo. at 339-44.
570. Spears Depo. at 342-44.
571. Judge Depo. at 618.
572. Judge Depo. at 619.
- 356 -
dependency. 573/ Mr. Judge does not know if people who smoke ultra-low tar cigarettes tend to smoke more than they had previously. He has done no studies and is aware of none.""
- e. American
Sometime around 1960, American sponsored and published 'A Review of Recent Biologic Research on Tobacco and Its Use" which, among other things, concluded that "
- with some individuals
- f. TIRC/CTR
Studies funded by TIRC in the Fifties support the plaintiffs' contention that personality or "constitutional" differences account for the inability of some persons to quit.
-------------
573. Judge Depo. at 625.
574. Judge Depo. a-, 628.
575. 'A Review of Recent Biologic Research on Tobacco and Its Use," sponsored and supported by The American Tobacco Company, undated (50281 3582-3643). Tab 204.
576. Heimann Rogers Depo. II at 91.
577. Heimann Rogers Depo. I at 130.
- 357 -
In a section entitled 'Who Can Stop Smoking?', TIRC-funded researchers found the following:
As every habitual smoker knows to his sorrow, ability to quit or cut down decreases as smoking increases . . . . The sheer amount of tobacco so far consumed is by far the largest difference between the group of men who can stop and the group who, at least so far, cannot..
. . .
Whether a man can alter his smoking habits seems to be most "deeply" determined. Efforts to quit or cut down seem to be normal, since smoking is quite widely seen as a "small vice," even by smokers. Whether a man can succeed in these efforts is first of all a function of how much tobacco he has consumed in his lifetime. Certain personality variables are also relevant. In general, it is the needs that lead to heavy smoking after the habit has begun that also Militate against quitting or cutting down. The social variables that were related to starting to smoke play little role in inability to quit. The effects of oral gratification at the breast may be relevant to control excessive smoking, once a great deal of tobacco has been consumed.578
In 1960, a researcher reported at a conference sponsored in part by TIRC that nicotine causes the release in the brain of norepinephrine which accounts for the increased
-------------
578. "The Psychology of Smoking,- 56 J. Abn. & Soc. Psych., 267, 272, 274-75, March 1958 (CTR 1455; 65008 1042) . Tab 192. The differences in personality types between heavy smokers, moderate and non-smokers which may lead to inability to quit are outlined in another published study which was funded by TIRC. Health AMA Archives of Internal Medicine, "Differences Between Smokers and Non-Smokers," February 1958 (CTR 1433; 65008 1030). Tab 193.
- 358 -
feeling of cheerfulness and a sense of relief from fatigue experienced by smokers. He also noted nicotine could aggravate heart rhythm irregularity.""
- g. Tobacco Institute
In a very recent article, Tobacco Institute personnel commented on the 'addiction" issue. Walker Merryman, a T.I. Vice President, was quoted as follows:580
"Sure, I think smoking might cause cancer.' he shrugs, glancing briefly at the cigarette burning in his hand. *Nobody here is arguing that smoking is
- good
- chose
- not
more problematically, Jack Kelly, T.I. Regional Vice President in Sacramento, confessed to being a nicotine fiend. 581/
'Hell, yeah. I don't doubt that I'm addicted, I have no problem with the term," he declared, as he set
-------------
579. Newspaper articles, March 25, 1960 (50050 6573 & 6574). Tab 205.
580. 'Where There's Smoke," Los Angeles Times Magazine 11, at p. 14 (Aug. 24, 1986) (emphasis original).
581. Id. at 26 (emphasis in original).
- 359 -
in his office across from the state capital, puffing away at his Benson & Hedges.
"All I know is, I'd hate like
- hell
- try
- hands
- h. Tobacco Working Group
The Tobacco Working Group of the NIH (less hazardous cigarette project) identified "at least two distinguishable groups of dependents.' The Tobacco Working Group further stated:
In one group psycho-social factors appear to be predominant, stopping smoking is relatively easy and withdrawal symptoms are slight or absent. In the other the dependence is harder to break and withdrawal symptoms may be severe but are inadequately described. It appears that in this group the dependence may have a pharmacological element. 583
-------------
582. The traditional dogma was recently echoed by TI's Scott Staph:
You got a really tough selling job to say those people were addicted when they can just walk away from it.
"Nicotine Hooks You, Just Like Heron," U.S.A. Today at p. 1-D (June 20, 1986).Tab 199.
583. "Group 1 -- Addiction, Habituation, Pharmacology of Tobacco, Recommendations; ions; Chairman C. M. Fletcher, C.B.E., M.D.," (PM 1002609875). Tab 194.
- 360 -
- Possible Industry Responses
The longstanding industry position has been that cigarette smoking is not addictive."" That proposition is subject to increasing scientific criticism and lay skepticism. Undue emphasis on it also creates a risk of losing focus on the narrower issue of impaired capacity in a subset of smokers. In addressing this narrower issue, the defense should avoid referring to both 'addiction' and 'impaired capacity.- The defense should refer to it as the *Ability to Quit' issue. Indeed, jury research indicates that jurors resent and disbelieve defense testimony that smoking is not addictive, while they are receptive to evidence that plaintiffs can quit. 585
- a. Definition of Addiction
Although the focus must remain on the 'Ability to Quit" issue, the defense must not concede that cigarette smoking has been proved to be addictive. Indeed, there are
-------------
584. The industry position is presented in an undated document, "The Question of Addiction," prepared by Shock, Hardy & Bacon. Tab 179. Some copies do not bear the name of Shook, Hardy & Bacon and may be produced in Barnes. Tab 180. Dr. Colby endorsed this paper. Inter-Office Memorandum from F. G. Colby to J. R. Peterson, January 19, 1978 (50327 5002). Tab 181.
585. See Tab 176; Report on Galbraith Trial, Jan. 28, 1986, at
p. 17;
- Smoking and Health Litigation Tactical Proposals
August 10, 1995, at p. 46.
- 361 -
substantial benefits to be derived over waging a definitional battle. Among those are the following:
€ By relying on a definition contemporary to pre-January 1, 1966, we will be able to minimize failure to warn claims.
€ By pointing out the definitional "evolution," we will be able to rely on numerous helpful references in the antismoking literture. [sic]
€ By identifying scientifically acceptable alternatives to DSM-III, we preserve the credibility of the industry's position.
€ By identifying a multiplicity of definitions, we may blunt some industry documents which refer to addiction or dependence.
€ By advocating a rigorous definition, we specify a better battleground for cross-examination.
A key definition of "addiction" is found in the 1964 Report to the Surgeon General. There the Advisory Committee employed scientifically rigorous definitions and concluded that cigarette smoking is an "
- habituation
- addiction
- 362 -
Drug Addiction
Drug addiction is a state of periodic or chronic intoxication produced by the repeated consumption of a drug, natural or synthetic. Its characteristics include:
I. An overpowering desire or need (compulsion I to continue tak. ing the drug and to obtain it by any means;
2 A tendency to increase the dose;
3 A. psychic (psychological) and generally a physical dependence on the effects of the drug;
4 Detrimental effect on the individual and on society.
Drug Habituation
Drug habituation is a conditioin resulting from the repeated consumption of a drug. Its characteristics include:
I A desire (but not a compulsion) to continue taking the drug for the sense of improved well-being which it engenders;
2 Little or no tendency to increase the dose;
3 Some degree of psychic dependence on the effect of the drug, but absence of physical dependence and hence of an abstinence syndrome;
4 Detrimental effects, if any, primarily on the individual.
Throughout the 1960s, cigarette smoking was
- not
Surveys indicate there is greater public awareness of the health hazards of smoking now than ever before, and that a majority of Americans want something done about it. But we cannot assume that the momentum of action now underway will carry us to an early solution.
There is a wide gap between public awareness of the health hazards of smoking and the individual decision to do something about it. Dr. Moore knows this as well as anyone.
- The frustrating part of getting people to quit, according to those who have studied the dynamics of the change process, is that most smokers are competent to quit by themselves, without any help at all. But they must have the will to do it.
- The fact is cigarette smoking is a habit too deeply ingrained to be broken easily
- 363 -
of cigarette advertising and by skeptics who seek to discredit the medical evidence or confuse the relationship between cigarettes and disease and disability. 586/
Dr. Stewart's views are fully consistent with those contained in the 1964 Report. Indeed, in 1969 Dr. Stewart ratified the conclusions set forth in that Report: 587/
5. There has been comment to the effect that cigarette smoking is 'physiologically addictive.' Do you agree or disagree with this?
We would disagree with the contention that cigarette smoking is 'physiologically addictive.' The position of the Public Health Service on this matter is stated in the 1964 report of the Surgeon General's Advisory Committee on Smoking and Health. The Report says (page 354):
The tobacco habit should be characterized as an habituation rather than as addiction, in conformity with accepted World Health organization definitions, since once established there is little tendency to increase the dose; psychic but not physical dependence is developed; and the detrimental effects are primarily on the individual rather than society. No characteristic abstinence syndrome is developed upon withdrawal.
-------------
586. Address by W. H. Stewart, M.D., June 14, 1966, Buffalo, New York (1003042335) (emphasis added). Tab 198.
587. Letter from W. H. Stewart, M.D., Surgeon General,
- reprinted in
- 364 -
References to cigarette smoking as a "habit" also appear in other governmental reports, including the FTC's 1967 annual report to Congress. 588/
The "addiction' label has also been rejected by a variety of antismoking organizations and individuals. 589/ For example, in 1976 Dr. Daniel Horn employed "personal-choice' language to describe smoking: 590/
Cigarette smoking represents one of the problems which can be called personal-choice health behavior.
. . .
[W]e must learn to accept the fact many thoughtful people will still make choices that they perceive as being in their own self-interest even though we deplore the choice.
The retreat from habituation to addiction seems to have been instigated by zealots like John Banzhaf, and gained
-------------
588. 1967 FTC Report to Congress at pp. 8, 24.
589. Evidently Dr. Wynder has been quoted as stating that cigarette smoking is not addictive. A reference is not available. Similarly, in a 1976 pamphlet submitted to Congress, a Yankelovich study prepared for the American Cancer Society stated; Smoking is not addictive -- but there are other far more powerful reasons for not smoking." "Summary of Findings," Yankelovich, Skelly and White, Inc. (Feb. 1976), reprinted in Hearings on S.2902 before the Subcommittee on Health of the Committee on Labor and Public Welfare, United States Senate, 94th Cong., 2d Sess. (1976).
590. D. Horn, "Why People Smoke," Dec. 1975 (50029 2301). Tab 202
- 365 -
considerable momentum during Secretary Joseph Califano's 1978 war on smoking. 591/ Before a House Subcommittee, Secretary Califano declared that "It is extremely difficult to quit because smoking can often be addictive.' He pledged that HEW would continue to study "the addictive properties of nicotine as well as the efficacy of various smoking cessation methods." 592/
Subsequent comments and reports by the Surgeons General have employed the term addiction to describe cigarette smoking. Indeed, it seems to have become a permanent part of Surgeon General Koop's vocabulary -- quite likely due to an effort on his part to aid plaintiffs in this litigation. Fortunately. Dr. Koop is also reported to have identified playing video games as addictive as well.
The employment of the term "addiction, to describe smoking behavior has been subjected to criticism. For example, Dr. Jaffe said 'the word 'addiction' has crept into popular
-------------
591. The charge seems to have had both politically and economic motivations, that is to taint cigarette smoking and to bring smoking cessation assistance within the coverage of group insurance plans.
592. Hearings on "Antismoking Initiatives of the Department of Health, Education and Welfare" before the Subcommittee on Health and the Environment of the Committee on Interstate and Foreign Commerce, United States House of Representatives, 95th Cong., 2d Sess. at pp. 8, 10 (1978).
- 366 -
parlance . . . to mean so many things it hardly means anything." 593/ Dr. Jaffe further testified:
I believe that the word addicted has been used by so many people that it is often a fruitless exercise to talk about what an addiction is in American society.
Do I believe Congress is addicted to deficits? I have a list of contexts in which the term addiction is used. it is very long. It is an English word whose use with non drugrelated phenomenon long antedate its use with drugs. Parenthetically, the first drug to which the word addiction in the English language was ever applied was tobacco. But that's historical.
The question is can people be addicted to other things. Well, certainly in the 18th century one would be addicted to card playing, addicted to gambling. That was the older use of the term. Obviously evolved, taken on other meanings, been used in other contexts, and frankly, it doesn't have as much scientific utility as it might have had it not been used in all of these other contentions [sic?].594'
Dr. Jaffe added that some professionals in mental health use the word addiction as a "very catchy title for an article or a book" that is used to refer to a "strong urge to continue to engage in behavior" 595
-------------
593. Jaffe Depo. at 655.
594. Id. at 293-94. Dr. Jaffe was not asked to produce his .long list" nor was he asked to enumerate all of the contexts in which addiction has been used. Undoubtedly, the list would have contained many everyday items that would be useful to the defense.
595. Id. at 295.
- 367 -
It is perhaps for this reason that DSM-III identifies a 'tobacco dependence disorder" rather than "addiction.' Even then, however, it is to be noted that DSM-III contains explicit disclaimers about the validity of its own definitions. 596/
This abbreviated chronology puts in context (among other things) plaintiffs' failure to warn of addiction claims. Specifically, during the 1960s there was wide scientific
-------------
596. The OSM-111 disclaimers are:
DSM-III provides specific diagnostic criteria as guides for making each diagnosis since such criteria enhance interjudge diagnostic reliability. It should be understood however, that for most of the categories the diagnostic criteria are based on clinical judgment, and
- have not yet been fully validated
DSM-III at 8 (emphasis added). Tab 177.
The purpose of DSM-III is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose, communicate about, study, and treat various mental disorders. The use of this manual for non-clinical purposes, such as
- determination of legal responsibility
Id. at 12 (emphasis added). Tab 177.
- 368 -
acceptance of the proposition that cigarette smoking was not addictive. The perversion of that term ensued in the 1970s.
Some helpful testimony was added by Dr. Jaffee:
A. Well, in 1962 or '63 1 can say I wasn't thinking very seriously about the concept. . . .
. . .
Q. why was it at that time, if you can tell me, that you weren't very seriously considering cigarettes as dependent or addictive?
. . .
A. it wasn't being widely written about in the medical literature.
. . .
. . . (lilt wasn't being written about very much in the medical literature in any way.
Q. When did you first conclude that cigarette smoking was either a drug dependency or a drug addiction?
A. . . . [I]t might have been sometime between 1964 to 1970, in that range . . . .
Q. would it be fair to say that there was a dispute in the 60's in the real scientific community as to whether or not there was a withdrawal syndrome connected with the cessation of tobacco smoking?
A. I think that would not be an unfair statement.
. . .
Q. Would the differences of opinion, as you described them, continue on through the 70's?
A. I think that there was a clear and progressive shift beginning in the early 70's toward more and more consensus among the real scientific community that there was a withdrawal syndrome albeit one that is
- 369 -
difficult to define in man and exceedingly difficult to measure in animals.
. . .
Did the differences of opinion in the real medical community . . . extend into the 1980's?
A. Differences of opinion continued . . . 597
Thus, even under the plaintiffs' definition, the duty to warn did not arise until about the same time that warning label appeared on packages. DSM-III which recognized "Tobacco Dependence" and "Tobacco Withdrawal' was not adopted until 1980, and the subcommittee which formulated the definitions was not formed until sometime after 1974.
- b. Dependence/Ability to Quit
The traditional response of the Industry to both "addiction" and 'dependence' allegations has included the proposition that 35 million smokers have quit; accordingly plaintiff could have done so as well with a sufficient commitment. Those propositions must remain a centerpiece of the defense strategy
In documents, industry employees have acknowledged that some smokers have difficulty in quitting and that smoking
-------------
597. Jaffe Depo. at 370-71, 694, 696, 698, 700. Dr. Jaffe notes some scientific evidence of addiction in the Forties.
- 370 -
causes dependence and/or addiction. Fortunately, the terms 'dependence' and "addiction" are frequently used without any referrent definition. Nevertheless, these and other documents support the DSM-III propositions that cigarette smoking is physioactive and that abstinance causes withdrawal symptoms in some smokers.
Furthermore, plaintiffs will contend that the 35 million smokers who have quit are not in issue. The 35 million quitters are obviously among the smokers described by researchers as those who able to quit without difficulty. Rather, the issue is whether plaintiff was among the subclass of the current 55 million smokers whose dependency is so great that they cannot quit.
Some Industry documents conveniently (for plaintiffs) identify subclasses of dependent smokers. Moreover, the Industry suggested for years that there are "constitutional" difference between smokers and nonsmokers which may account for the increased incidence of lung cancer in smokers. Some of these "constitutional" differences are now being cited as characteristics of those unable to quit. Thus, the constitutional theory as an alternate causation theory Creates problems for the defense on the 'ability to quit' issue. Before any industry witness or expert suggests a "constitutional" theory as an alternate cause of lung cancer,
- 371 -
the implications with respect to the ability to quit issue should be carefully evaluated.
While Industry documents and "admissions' create difficulties in dealing with dependency issues, plaintiffs are still vulnerable on a number of critical points. Thus, one can take each element of the definition of "addiction" set forth in the 1964 Report to the Surgeon General and secure admissions from plaintiffs and their experts that
- none
Second, the issue of personal commitment to quit typically favors the Industry. It is commonly accepted that the traits most clearly predicitive of success in cessation efforts are commitment and self-efficacy. Moreover, plaintiffs have had difficulty in defining what is essential to establish "a serious attempt to stop smoking," and their conclusions are transparently self-serving. For example, Dr. Jaffee could not
-------------
598. DSM-111 at 163-79. See Tab 177.
599. Jaffe Depo. at 587.
- 372 -
give a definite answer but believed 'most clinicians" would not require "the seeking of professional consultation" 600 as threshold evidence of a serious attempt to quit. He acknowledged that it was an important and "provocative' question."" He would consider flushing cigarettes down the toilet followed by at least a half day's cessation, switching to a pipe, or switching to a low nicotine cigarette as "serious attempts. to 602
The Industry may be faulted for not monitoring the addiction literature, for not conducting addiction research, and for not warning of addiction. An overzealous attack by plaintiff on these issues could, however, backfire. Industry witnesses could be (and correctly should be) indignant over accusations that loose definitions adopted in 1980 should have governed their conduct 20 to 30 years earlier. Moreover, even if one were to concede the contemporary appropriateness of DSM-III's definitions, Monday morning quarterbacking has never altered Sunday's game plan or won a game.
Nevertheless, the Industry's position can and should be strengthened. Industry deponents should be fully prepared
-------------
600. Id. at 619.
601. Jaffee Depo. at 574-76, 617-28.
602 . Id. at 622-23.
- 373 -
on addiction issues. They should study the "habituation" and "addiction" definitions in the 1964 Report to the Surgeon General, and should become familiar with DSM-III. Similarly, witnesses should not be overly defensive in this area. A response that for some people cigarette smoking is difficult to stop merely concedes the obvious. Every juror will already believe that some people have difficulty in quitting. On the other hand, the witness should add that with appropriate commitment, anyone who wants to quit can do so.
Industry witnesses should also avoid technical definitions. If pressed, one can assume the jury will react adversely to the technical testimony of the effect of nicotine on the brain and central nervous system just as the jury research indicates they react adversely to learning of constituents and additives contained in cigarettes.
Industry witnesses and experts should be prepared to translate the technical jargon into lay language to lessen the adverse effect of testimony about the affect of nicotine on "cholinoceptive receptors," etc. They should also compare the effect of nicotine to that of other common substances or activities such as caffeine, chocolate candy, soft drinks, exercise, sleep, stress, etc. The comparison will lessen the adverse effect of the technical nicotine testimony and evidence. The 1964 Report to the Surgeon General compares
- 374 -
nicotine to other common substances and is useful as a starting point . 603
The challenge for defendants with respect to the addiction issue is to establish factually that plaintiffs could stop if they really wanted to. Just as plaintiffs have obtained much helpful information from the defense, so also might the defense obtain helpful information from plaintiffs and their addiction experts. A deposition outline for cross-examination of plaintiffs' addiction experts is beyond the scope of this Report, but the following are areas of inquiry which should be pursued:
€ The expert should be pinned to a clear and unambiguous definition of addiction.
€ The expert should be forced to concede that there have been multiple definitions of addiction, and that the definition in the 1964 Report was credible and state-of-the-art in 1964 and in 1969.
€ The expert should be forced to concede that
- none
€ To the extent that the expert identifies any physioactive aspects of smoking, he should be
-------------
603. "Smoking and Health Litigation Tactical Proposals, August 10, 1985 at 47-48 contains other suggestions.
- 375 -
"set up' to corroborate the old advertising themes (e.g., smoking aids digestion), including any found by the FTC to be false and misleading.
€ Similarly, the physioactive aspects of smoking may be directly relevant to the benefit side of the risk/benefit equation, with plaintiffs' addiction expert serving as an unspecting (sic) supporter of our contentions.
€ As part of the definitional examination, the expert should be forced to provide a comprehensive check-list for identifying "addicted" or 'dependent" smokers. It is quite likely that either the plaintiff will fail to satisfy some criteria, or that the expert will have disabled himself from other litigation.
€ If possible, admissions with respect to the reliability of various other literature, or other experts should be obtained. Undoubtedly, sharp distinctions can be made in this area which is characterized by loose definitions and even looser thinking. Similarly, such literature may equate nicotine with other common substances.
€ If the expert paints an extreme picture addiction, it may be possible to wrest admissions
- 376 -
that it is folly to argue that advertising could have had any impact on smoking continuation.
- c. Addiction: A Self-Fulfilling Prophesy
Another potentially strong point for the defense is that the addition" label can become a self-fulfilling prophesy. Thus, those who believe themselves addicted wil (sic) cite their "addiction" as an excuse for not quitting or even attempting to quit. In other words, antismoking organizations which use the term "addiction' to stigmatize cigarette smoking are engaging in a self-defeating activity.
- 377 -
- VII. PUNITIVE DAMAGES ISSUES
Plaintiffs will undoubtedly argue that the industry's conduct as detailed above was egregious and in and of itself warrants the awarding of punitive damages. Moreover, after establishing a prima facie case of liability and "egregious' conduct, the scope of the evidence can expand greatly to encompass a broad range of corporate conduct having little relationship to the specific plaintiff. Brotherton v. Celotex Corp., 493 A.2d 1337 (N.J. Super. 1985); Fischer v. Johns-Manville Corp., 472 A.2d 577 (N.J. Super. 1984), cert . granted, 483 A.2d 137 (N.J. 1984); see also Hilliard v. A. H. Robbins Co., 196 Cal. Rptr. 117 (Cal. App. 1983). Thus, plaintiffs may seek to introduce other evidence of "misconductto the type described below.
- A. A Grant Clarke
- Plaintiffs' Contentions
A. Grant Clarke headed the so-called "Camel Cigarettes medical Relations Division,- but in fact was employed by the William Esty advertising agency. His job was to recruit physicians to support advertising campaigns communicating medical endorsements of smoking. In addition, Mr. Clarke was instrumental in creating the original TIRC Scientific Advisory Board.
- Supporting Testimony and Documentation
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The Old Camel ads list Grant Clarke as the head of the 'Camel Cigarettes Medical Relations Division.' Further, the "Medical Relations Division" was the subject of one set of New Jersey interrogatories. This, so far as is known, is the extent of, the plaintiffs' knowledge of Mr. Clarke. Dr. Colby (RJRT) and William Smith (RJRT), however, are somewhat knowledgeable about Grant Clarke, and plaintiffs may obtain some of the following information at future depositions.
Mr. Clarke was an employee of the William Esty advertising agency until December 31, 1956. He died shortly after leaving the agency. While working for Esty, Clarke acted on behalf of Reynolds, 604 which reimbursed Esty for Clarke's salary and office expenses. It is uncertain whether Clarke ever employed by Reynolds; its personnel office has no record of his employment and all Personnel files before 1955 have been destroyed. However, a 1954 draft of an answer to an interrogatory in
- Cooper v. RJRT
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604. William Esty memorandum, January 31, 1957. Tab 286. Also, in Dr. Colby's interview dated July 10, 12, 17, 1985 at 2, Colby stated that Clarke was an Esty employee. See Memorandum 'Dr. Frank Colby Interview Conducted on July 10, 12 and 17, 1985," by J. Clare (WCS&R), September 9, 1985. Tab 287. See also May 19, 1986 conversation with Mark Holton (WCS&R). Tab 288.
605 . Draft Interrogatory Answers, Cooper v. RJRT, October 27, 1954 (50050 2748, at 2754). Tab 290.
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that Clarke was not directly employed by Reynolds.
As an Esty employee, Clarke ran the Camel Medical Relations Division ("CMRD") for Reynolds between 1942606' and 1953.407' The CMRD was housed in the same building as Esty but was financed directly by Reynolds."" The Medical Relations Division appears to be "nothing more than an address through which the ad agency (Esty) could mail out articles in the smoking and health area." 609 The address, One Pershing
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606. Smith Interview at 2. Tab 289. Smith emphasized that the medical relations program was simply a sampling program, nothing more. Id. at 3.
The exact date that RJR moved the program in-house is unknown. Also, the last known letter from Clarke with a Camel Medical Relations Division letterhead is dated February 15, 1954. See Letter from Grant Clarke to E. A. Darr (50194 1838). Tab 291. This letter indicates that
1) RJR moved the program in-house in 1954 or
2) When RJR moved the program in-house in 1953, Clarke continued to work on the program or
3) Clarke used stationery with the CMRD letterhead while he was the Director of the Bureau of Research Information.
See letter from Clarke of the Bureau of Research Information to Henry Ramm (March 26, 1954). Tab 292.
607. Draft witness statement of James Houlahan (Esty president), "Not A Single Case Of Throat Irritation--The Thirty-Day Smoking Test" (March 17, 1958) (50017 5900-5901). Tab 293.
608. Id.
609. See Tab 295.
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Square, is the side door of the William Esty Advertising Agency." 610 In the 1940's, Reynolds ran Camel ads in medical journals et al. touting certain beneficial aspects of smoking Camels; for example, Camels are slower burning and therefore smokers receive less nicotine. If smokers were curious about the studies upon which the ads relied, they were advised to write to the "MRD" in New York. 611 '"
In addition, approximately six people attended medical conferences across the country and interviewed the doctors in an effort to substantiate the "More Doctors Smoke CAMEL" advertising campaign of that era. The Esty groups also