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
- 378 -
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
-------------
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.
- 379 -
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
-------------
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.
- 330 -
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 sampled doctors and their employees in their offices." 612 According to William Smith, former Reynolds vice-president, Esty's involvement in the Camel Medical Relations Division ceased when Smith began handling this in 1953.613 Smith said that the entire medical convention program was brought in-house and once Reynolds controlled the program, it no longer. sampled the doctors in their offices.614 The CMRD was transferred to
-------------
610. Tab 288.
611. Tab 295.
612. Smith Interview at 2. Tab 289.
613. Id.
614. Id,
- 381 -
the Sales Department. 615
Dr. Colby shared an office with Clarke at the William Esty Agency in the early 1950s. Colby said that Clarke looked at literature for Reynolds but did not mail out unfavorable literature so as not to upset "higher-ups" at Reynolds in Winston-Salem.616 Colby believes Clarke misinformed management and he called Ken Hoover (Director of Research in the 1950s and a member of the Board of Directors from 1953-64) to tell him that Clarke was a quack. 617 Colby does not know to whom Clarke was reporting, but said it was probably to whomever was at the top of Reynolds from 1951-52.618
Once the Camel Medical Relations Division went in-house, Clarke remained an employee of Esty and was the director of its Bureau of Research Information. The exact date is unknown, but it was some time between February 15, 1954 and March 26, 1954. 619 Documents referring to this Bureau date
-------------
615. Tab 288. William Smith has no knowledge of any responsibility or effect by Clarke to keep Reynolds informed of smoking and health issues and science. Smith interview at 2-3, August 29, 1985 at 2-3. Tab 289.
616. Colby Interview, July 10, 12, 17, 1985 at 2. Tab 287.
617. Tab 288. See Tab 294.
618. Tab 287.
619. (50194 1838; 50050 2507). Tabs 291 and 292.
- 382 -
from March 4, 1954 to September 19, 1956. Clarke's duties as the director were to collect, summarize and circulate current medical literature to counsel for all tobacco defendants.""
Grant Clarke was a member of the original Industry Technical Committee of T.I.R.C. The Committee was formed on January 18, 1954 and consisted of Research Directors of member companies. Clarke's affiliation is stated as the "Bureau of Research Information (for R.J. Reynolds Tobacco Co.)' Also on the Committee were seven Directors of Research of tobacco companies, a Vice-President of Research and a Vice-President of Manufacturing.
The Research Directors screened those people who were being considered for membership on the Scientific Advisory Board. Following that, these Research Directors acted as an Industry Technical Committee to provide technical information to the SAB concerning tobacco, its constituents, pyrolysis and other data as requested.
Clarke was also involved in gathering expert witnesses for tobacco litigation.621 According to Ed Jacob, Clarke
-------------
620. Letter (page 9) to Harry McCall, Esq., August 17, 1955 (50017 5676). Tab 296. See (50050 2507). Tab 292. And see letter from A. Grant Clarke to Henry H. Ramm, April 15, 1954 (50050 2504). Tab 297.
621. Letter from H . H - Ramm to A. Grant Clarke (April 22, 1954) (50050 2499). Tab 298.
- 383 -
credited quacks as expert witnesses.622
Clarke left Esty in 1956. His disassociation from Reynolds was apparently due to personal problems. Specifically, "he drank too much, went after women too much and was promiscuous with the doctors" he was trying to secure as witnesses. 623
- Possible Industry Responses
The first line of defense to Grant Clarke's activities with respect to obtaining witnesses and monitoring health literature is that his work was done for lawyers in anticipation of legal proceedings and is, therefore, opinion work product. Further, since his activities were over thirty years ago, a weak argument could be made that they are not "of consequence to the determination of the action."' However, if the ads which resulted from Clarke's work are relevant, then the information behind them may be also.
As far as the substance of Grant Clarke's action, the best answer may be that no one is very familiar with what he did, but he was taken off the medical Relations program and was
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622. "Briefing for Sam Witt by Ed Jacob and Frank Colby (April 5, 1977)- (50028 9605, at 9606). Tab 299.
623. Id. See also Tab 300.
624. See Fed. R. Evid. 401.
- 384 -
eventually "let go." The most important point is: The less said the better. No response to whatever plaintiffs are able to uncover may be the best response.
- B. The Kent Micronite Filter
- Plaintiffs' Contentions
The Kent "Miracle" Micronite Filter apparently contained asbestos. Some of the anti-tobacco forces once suggested this as a basis for criminal prosecution of Lorillard executives. As a result of the "synergistic' effects of asbestos, liability of Lorillard is arguably absolute under the Beshada case.
- Supporting Testimony and Documentation
The alleged composition of the Kent filter is a matter of public knowledge. A document entitled "A Note on Public Policy Issues in the Cigarette Industry" authored by Joe B. Tye (who has written several other anti-tobacco articles) quotes from an interview with Dr. Blum (who is a representative of "Doctors Ought to Care"). Mr. Tye attributes the following remarks to Dr. Blum:
There is no doubt in my mind that within my lifetime there will be criminal trials of cigarette company executives. There is ample documentation that they have been dishonest and deceptive concerning the health implications of smoking, have deliberately directed advertising and promotion at children, have included dangerous additives in their cigarettes--like the asbestos in Kent's
- 385 -
Micronite filter--and have influenced commercial transactions and the political process through inappropriate and sometimes illegal payments.625/
The above information is obviously available to plaintiffs. It was recently repeated by Mr. Tye in the TPLR.626 The source of Dr. Blum's information is unknown. The time period during which asbestos was allegedly used needs to be pinpointed. But some of the early Kent ads made arguable health claims: "Only Kent goes to the extra expense to protect you with microscopic filtering" and " . . . Kent's Micronite Filter takes out more nicotine and tar . . . protects you as no other filter can." 627
- Possible Industry Response
On this issue, Lorillard must be prepared to defend the accusations, whether or not it is a defendant. If the Lorillard product contained asbestos, it is fundamentally different from other cigarettes. Our witnesses and other industry witnesses should stand clear and let Lorrilard defend accusations about the Micronite Filter.
-------------
625. "A Note On Public Policy Issues In The Cigarette Industry," Joe B. Tye, Stanford Graduate School of Business, April 15, 1985. Tab 301.
626. Tye, "Selling Death By Promising Health: Sixty Years of Health Claims on Cigarette Advertising," 1.8 T.P.L.R. at p. 4.66 (1986).
627. Kent Advertisement, Saturday Evening Post, (November 13, 1954). Tab 302.
- 386 -
Presumably Lorillard knew nothing of the alleged dangerous propensities of asbestos. Second, the filter itself may have protected against the inhalation of asbestos. This issue requires further investigation.
- c. Deceptive Cooperation with the Surgeon General's Advisory Committee 1962-1963
Plaintiffs' Contentions
The Industry attempted to reinforce the smoking public by appearing to cooperate with the Advisory Committee to the Surgeon General, while planning to attack its findings. While the Advisory Committee investigated the smoking and health issue, the Industry issued public statements predicting that the Advisory Committee would conclude the issue was an 'Open Question,' despite its conviction that the Advisory Committee would conclude cigarette smoking was a cause of lung cancer. Dr. Colby recognized this inevitable result when he testified at his deposition that the "establishment" position for forty years has been that cigarette smoking causes lung cancer.
The plaintiffs will attempt to undermine the Industry's attack on the 1964 Report by demonstrating that the Industry could have vetoed any of the Committee members but failed to do so. Furthermore, the Industry praised the credentials of the Committee members.
- Supporting Testimony and Documentation
- 387 -
In July 1962, Surgeon General Terry and members of his staff met with representatives of voluntary health associations such as the ACS and AMA as well as George Allen. President of TI and TIRC's Dr. Little. George Allen distributed his notes of the meeting to . members of the Industry. 628 Surgeon General Terry stated the purposes of the meeting were to discuss the formation of the committee to study the question of smoking and health and to discuss the names of individuals to be chosen. Dr. Little submitted a list of persons to be considered for the Committee. Dr. Hundley, the Assistant Surgeon General stated: 'Everyone is requested to strike the names of any person to whom he objects. We hope to appoint men to whom no one objects." Dr. Hundley further stated that the list he had prepared excluded anyone who he knew to be biased and excluded everyone who had volunteered. The Industry did not veto any of the panel members. Earle Clements later denied that the Industry had any role in the selection of the members of the Advisory Committee.""
-------------
628. Memorandum from George V. Allen, to Members of the Institute Committee on Legal Affairs Public Relations Committee, "Surgeon General's Meeting--July 24, 1962, July 26, 1962 (1002609785). Tab 303.
629. Notes of "Conference at Office of the Secretary of Health, Education and Welfare, May 2, 1968," May 3, 1986 Draft (1002609317). Tab 304.
- 388 -
George Allen described the Surgeon General's Committee as "composed of qualified scientists.- In a conversation with Surgeon General Terry in November 1962, George Allen told the Surgeon General: 'Dr. Little had informed me that the talents and experience of those named were impressive and broad enough to carry out a study which 'will be concerned not only with tobacco but all other factors which may be involved, such as air pollution, automobile exhausts, etc...'"630
As indicated above, the Industry announced its cooperation with the Surgeon General's Committee in advertising. 6 3 631/ A few weeks after its meeting with the Surgeon General, the Industry mapped a far different strategy. 632/
We are all agreed that we want to do whatever can be done to put us in the strongest position possible to counter negative public reaction to the so-called health scare and to counter possible punitive administrative orders or
-------------
630. Memorandum of Conversation between George V. Allen and Surgeon General Terry, November 7, 1962 (1002609776). Tab 305.
631. Background on Tobacco and Health (August 1962) (65011 9445) - See Tab 306; a statement about Tobacco and Health (undated). See Tab 267.
632. Memorandum from The Tobacco Institute to Members of the Executive Committee, October 22, 1962 (1002609370). Tab 307. See also TI document of unknown date and origin (Tab 29), which reiterates the strategy to avoid "offending the Surgeon General's Committee."
- 389 -
legislation on both the State and Federal levels. 633/
Dr. Little and members of the Industry were to prepare to "evaluate constructively and critically and to publicize at about the time of the release of the report any deficiencies, inadequacies or bias The strategy also provided:
In the meantime, the Institute and the tobacco industry should manifest an attitude of complete cooperation in the development of the report and also manifest confidence that a thoroughly objective and unbiased study and appraisal will be made and that such study and report will indicate that we do not now know what causes lung cancer or any other kind of cancer.
The strategy document concluded, "we should be ready to hit hard and effectively at the time the report is made . . . "
The basis for the Industry's apprehension of an adverse finding are not hard to appreciate. In 1957, a study group, which included Drs. Shimkin and Sing (later an SAB member), was appointed by the Surgeon General. Their report--entitled The Health Consequences of Cigarette Smoking--concluded that smoking caused lung cancer. 634/
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633. Dr. Little was scientific director of TIRC but he "took orders" from TI on this occasion, as well as on many other occasions. See Cullman Depo. at 212-18.
634. See Heimann Rogers Depo. I at 136. Note that the text accompanying this footnote are based on Mr. Townsley's questions. Documents have not been located.
- 390 -
indeed, Surgeon General Burney stated that statistics indicated that excessive cigarette smoking was a causative factor in lung cancer. Secondly, in 1962, the prestigious British Royal College of Physicians and Surgeons had concluded that cigarette smoking caused lung cancer. Accordingly, there was no reason to doubt that the Advisory Committee would not follow suit.
Nevertheless, the Industry wanted to appear to be cooperative.
In April 1963, the Assistant Surgeon General, Dr. Hundley, asked TI "to supply information which might be of interest to the Surgeon General's Committee on Smoking and Health.""' George Allen, the President of TI at the time, replied that Philip Morris would submit "analytical data" to the committee. 636/
Soon after the Report was released, the Industry began attacking it. The immediate objective was to avoid extreme restrictive measures by the Government. The attacks occurred even though the Industry recognized that the 'declaration that cigarette smoking is a health hazard" was the official policy
-------------
635. Letter from J.N. Hundley to G.V. Allen, April 1963 (0002609786; Cullman Depo. Exh. 39).
636. Letter from George V. Allen to Dr. James N. Hundley, April 11, 1963 (1002609751); letter from Joseph F. Cullman, 3rd to George V. Allen, April 11, 1963. Tab 308.
- 391 -
of the U.S. Public Health Service, and was accepted by most major health groups, a committee of the AMA, the press and other media, including science writers, and the public.637 The Industry even appeared to Consider accepting the finding, itself.""' The goal, as was the case when the Surgeon General first announced the formation of the Committee, was to "buy time." After the report was issued, the goal was to reestablish' the open controversy rather than to perpetuate it. 639
Subsequent Surgeon General Reports were also attacked. 640 The Industry also attacked the reports of the Royal College of Physicians. 641 Surgeon General Stewart
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637. See letter from Carl Thompson to James C. Bowling, February 24, 1964 (1005038562). Tab 309. "Notes of Comment on Report of Surgeon General's Advisory Committee on Smoking and Health', February 25, 1964 (10050385631 Tab 310.
638. Id.
639. Id.
640. See, e.g., Evaluation of the 1967 Report (1002609258). Tab 311.
641. Informational Memorandum from Horace R. Kornegay to Chief Executives, January 12, 1971 (1002906706) . Tab 312.
- 392 -
recognized the continuing tactic of feigning cooperation while attempting to perpetuate the discredited open question.""
- Possible Industry Responses
Industry cooperation with the Surgeon General's Committee is not inconsistent with preparing contingency plans. Nor do the documents establish that the Industry's cooperation was a sham. Other documents which plaintiffs have selected indicate that Industry representatives met with the Surgeon General or the Secretary of Health, Education and Welfare on numerous occasions.643/ Therefore, the response ought to be: The Industry cooperated and has continued to cooperate with the Surgeon General even though it disagrees With the conclusions he draws. The Industry could perceive no purpose in deliberately alienating the Surgeon General's Committee by failing to cooperate.
-------------
642. Letter from William H. Stewart to Senator Thurston B. Morton, December 21, 1967 (1002609348). Tab 313. The Surgeon General commented:
[I]ndustry spokesmen repeatedly urge negotiations and cooperation while simultaneously maintaining a rigidity both unrealistic and unchanged in the four years since the landmark smoking and health report.
643. Conference between Secretary Wilbur J. Cohen, Surgeon General William H. Stewart, Senator Earle C. Clements and others, April 1, 1968; Conference at the Office of the Secretary of Health, Education and Welfare, May 2, 1968. Tabs 314 and 315.
- 393 -
- D. True Magazine
- Plaintiffs' Contentions
In late 1967 and early 1968, the tobacco industry commissioned an article by a sportswriter, Stanley Frank, entitled
- To Smoke or Not to Smoke -- That Is Still the Question
- National Enquirer
- Most Medical Experts Say: Cigarette-Cancer Link is Bunk
- 70,000,000 Smokers Falsely Alarmed.
-------------
644. S. Frank, True, 'To smoke or not to smoke - that is still the question" (1968) (65011 9625; T 12687; Thompson Depo. Exh. 36). Tab 316.
645. Letter from Reginald B. Wells to Senator Earle Clements, December 6, 1967 (65009 2463; T 13769; Bowling Depo. Exh. 54). Tab 31.7.
- 394 -
Finally, to disseminate the article beyond the relatively downscale readership of True and the Enquirer, the Tobacco Institute, through a public relations agency, Tiderock, mailed reprints of the True article to doctors and other "opinion leaders" throughout the country. Nowhere in the mailing, however, was TI identified as the distributor. Instead, the reprints stated: "As a leader in your profession and community, you will be interested in reading this story from the January issue of
- True
- Wall Street Journal
- Supporting Testimony and Documentation
The 1968 FTC Report to Congress alleges that the idea for the
- True
- True
-------------
646.
- True
- 395 -
(identified in the 1968 FTC report only as an unnamed attorney for another tobacco company). An outline of the article was submitted to
- True
- True
- True
Tiderock had significant advance notice of both the fact and substance of the Frank article. A November 20, 1967 document entitled 'The Cigarette Controversy - An Action Program' authored by Tiderock,'"' included as parts of its 'Suggested Mailings" both the
- True
- Esquire
-------------
647. 1968 FTC Report, at 26.
648. Id. at 30.
649. Judge Depo. at 240,
650 . (T 13.106; Kloepfer Depo. Exh. 37, at 2) .Tab 275.
- 396 -
True article." 651/ In reference to the latter, Mr. Reeves must have had sufficient advance access to the
- True
- Esquire
- True
The "Action Program' also listed as an objective: 'Generation of free-lance articles (
- Esquire
- True
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651. Letter from Rosser Reeves to Senator Earle C. Clements, November 29, 1967 (T 12868). Tab 320.
652. Informational Memorandum '
- True
653. (T 13206; Kloepfer Depo. Exh. 37, at 2). Tab 275.
654. In his deposition, Kloepfer denied that, however defined, any such effort had been undertaken. Kloepfer Depo. at 385 .
- 397 -
Many documents included in the production detail both the tobacco companies' and TI's reprinting and distribution of the article. These include substantiation of:
- distribution of tens of thousands of copies to the individual companies; 655/
- distribution to tobacco growers and dealers; 656/ and
- distribution to physicians, dentists, media personnel, scientists, educators, government figures, securities analysts, lawyers, insurance company and other executives (total: 414,820 copies). 657
True reprint costs are listed as $82,363. 658/
There is a collection of largely illegible correspondence and memoranda concerning inquiries by Wall Street Journal reporter Ronald Kessler concerning the True project. 659/ Among the significant points are:
-------------
655. Letter from Seymour Henck to William Kloepfer, Jr., January 17, 1968 (T 12655). Tab 322.
656. Letter from William Kloepfer, Jr. to Seymour Henck, February 12, 1968 (T 12657); Letter from Seymour Henck to William Kloepfer, Jr., February 16, 1968 (T 12650). Tab 323.
657. Letter from Seymour Henck to William Kloepfer, Jr., February 20, 1968 (T 12652). Tab 324.
658. Letter from Reginald B. Wells to Senator Earle C. Clements, April 22. 1968 (T 13783). Tab 325.
659. These documents are compiled at Tab 326.
- 398 -
-- That Earle Clements told Mr. Kessler that TI had not paid for the Editor's note an the reprints. 660/ He also indicated that there was "nothing particularly unusual" about the concealment of TI sponsorship of the mailing; 4 & 661/ and
-- That TI saw the forthcoming Kessler article primarily as a vehicle for presenting its side of the smoking and health controversy. To that end, it supplied Kessler with various bibliographic references. 662/
When the
- Journal
- True
- Journal
- Congressional Record 664
-------------
660. However, the Editor of
- True
661. (T 14085-86). Tab 326.
662. (T 14089; T 14050; T 14051). Tab 326
663. "True' Magazine and The Cigarette Industry, A Comment from The American Cancer Society (T 14065); "Copy of American Cancer Society News Release issued March 21, 1968 in New York City' (T14091); "For Physicians, Medical Bulletin on Tobacco' (vol. VI, no. 1, April, 1968) (T 15099). Tab 327.
664 . Congressional Record - Senate S 3415 "The 'Truth' About Smoking and Health'. March 27, 1968 (65011 9635; T 12664; Thompson Exh. 39). Tab 328.
- 399 -
alert them to the origin of the article. 665/ Inquiries were also initiated by the FTC 666 and, in order to determine whether a violation of the Code of Professional Standards for the Practice of Public Relations had occurred, by Coudert Brothers. 667/
These events prompted a spate of denials and fingerpointing by all involved parties:
- Hill and Knowlton denied knowledge of the
- True
- True
- TI took offense at this H&K letter and objected that it had not been informed of H&K's employment of Frank and that
-------------
665. Memorandum "Magnuson Mailing Re
- True magazine
666. Letter from Brice M. Clagett to Alfred Lindeman, Esq., June 6, 1968 (T 12581). Tab 330.
667. Letter from Bert C. Goss to Coudert Brothers, June 10, 1963; Letter from William Kloepfer, Jr., to Coudert Brothers, September 1, 1968; Letter from Coudert Brothers to William Kloepfer, Jr., August 28, 1968 (T 12582-586). Tab 331.
668. Letter "Tobacco Story and Stanley Frank" from Bert C. Goss to All H&K Officers, March 21, 1968 (T 12627). Tab 332.
669 . Letter from Bert C. Goss to Senator Clements. March 22, 1968 (T 12628). Tab 333.
- 400 -
Frank had been permitted to author the second
- Enquirer
-- Perhaps in reaction to the above exchange, H&K pondered whether to withdraw from the TI account. 671/
-- Meanwhile, TI, too, was denying involvement in the authorship of the articles,"" and, "because of the aftertaste of the True thing,' American Tobacco declined to join in any ads signed by TI."'/
- Possible Industry Responses
There are two separate issues here. The first concerns alleged industry collusion in the authorship of the article; the second deals with the article's distribution. Thus, regardless of whether the Industry would be capable of defusing the allegations contained in the 1968 FTC Report, it will still be faced with the fact of the concealment of TI's sponsorship of the mailing.
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670. Letter from Earle C. Clements to Bert C. Goss, March 28, 1968 (T 12624). Tab 334.
671. Confidential Memorandum from Carl Thompson to William Kloepfer, May 2, 1968 (T 12616). Tab 335. H&K terminated the account on December 31, 1968.
672. (T 14045; Kloepfer Depo. Exh. 68). Tab 336.
673. Confidential File Memo. July 9 (T 15116). Tab 337.
- 401 -
- a . Authorship
If the FTC account of the episode is accurate and representatives of more than one tobacco company were involved in the commissioning and development of the article, it would be difficult to characterize the affair as the product of individual "loose cannons.' On the other hand, to the extent that there is no documentation of TI involvement, it cannot be said that this was an instance of organized institutional activity on the part of the Industry. The "best" Industry response, therefore, might be to lay this stage of the affair at the doorstep of an overreaching editor and a few frustrated tobacco company employees. That B&W ultimately supplied the initial $500.00 is damaging, but that sum is not so large as would alert upper management that a significant plot was afoot. Neither the FTC in its investigation nor the plaintiffs during discovery have uncovered a "smoking gun" to prove otherwise.
As regards the issue involving the employment of Frank, the rash of post hoc fingerpointing letters substantiate the position that perhaps one hand really did not know what the other was doing. Although the coincidences involved are enormous, the Industry should assert that the events unfolded in a manner such that the Industry never had full knowledge of or control over them. This depiction will be directly at odds
- 402 -
with the plaintiff's portrayal of the Industry as a monolith. if convincingly made, however, this response may reap collateral benefits in other areas in which the plaintiffs also seek to depict an omniscient behemoth, the component parts of which always function in lockstep.
- b. The Mailing
It is an inadequate response to state, as did Earle Clements, that anonymous mailings are not uncommon in the public information business. 674/ 7 4' Such a response would not only sound cynical, but also, due to its cynicism, make a more significant impact on the juror than this minor episode deserves. After all, as documented by the responses to the reprint offer, which generally ranged from outrage to obscenity, the ploy was ineffective.
As with the bad ad campaigns, perhaps the best response is simply to acknowledge it was done, point out that it took place almost twenty years ago, and highlight that it had backfired. Why was it done? The scions of the Tobacco institute might here also confess to being human. 675 Having
-------------
674. Indeed, Carl Thompson of H&K asserted that sources of such information should be disclosed. Thompson Depo. at 261.
675. Kloepfer would have difficulty with this "confession." For several pages of his deposition, he steadfastly asserted that he did not recall the True mailing and denied that anything could refresh his recollection. Kloepfer Depo. at 535-50.
- 403 -
generally failed in various forums in presenting the "other side" of the controversy to the public, TI turned to this mailing out of frustration. Both Bowling 676 and Kornegay 677 7 7' admitted to such frustration during their depositions. It should be noted as well that the addressees of the mailing were not "conflicted smokers," but educated individuals who, had they received mail with TI listed as the sender, might shred before reading. Much as exculpatory in-house smoking and health research might immediately be dismissed as biased, so, too, might a mailing overtly emanating from the tobacco industry's trade association. This response does not excuse; it explains. In sum: we did it; we're human; we goofed.
- E. Discrediting of the Auerbach "Smoking Beagles" Experiment
Plaintiffs' Contentions
Fundamental to the Industry's position that cigarette smoking has not been proved to cause lung cancer is the claim that animal experiments involving the inhalation of fresh whole smoke have consistently failed to cause human-type lung tumors. That, however, plaintiffs will contend is not true.
-------------
676. Bowling Depo. at 139. Bowling also believed that Kloepfer was frustrated. Id. at 485-86.
677. Kornegay Depo. at 691.
- 404 -
In 1970, Dr. Oscar Auerbach reported that he had induced invasive squamous cell carcinoma in beagle dogs exposed to cigarette smoke through inhalation. The Industry, however, did not accept the findings of this eminent scientist, but rather began a smear campaign unequalled in American history. The Industry response to the Auerbach study is an admission that the Open Question is a sham and that the Industry knows cigarettes cause lung cancer.
- Supporting Testimony and Documentation
In the 1950s, the cigarette industry's standard response to its critics was that no substance carcinogenic to humans had been detected in cigarette smoke.678 When that position became untenable (with the discovery of PAHs in tobacco smoke), the Industry's stock answer became and remains "no one has ever produced squamous cell cancer of the lungs in any experimental animal using whole smoke.' 679
Then, on February 5, 1970, E. Cuyler Hammand of the American Cancer Society ("ACS") announced that. in a smoke inhalation experiment conducted by Dr. Oscar Auerbach, human-type cancers had been induced in the lungs of "smoking
-------------
678. See, _________________Tab 338.
679. "A LOOK AHEAD - Smoking and Health Where Do We Stand?" by Arthur Furst, Research Consultant, CTR, January 15 1970 (CTR 4234; Gertenbach Depo. Exh. 14-KK). Tab 33;
- 405 -
beagles . The ACS report received quite extensive media coverage.
The tobacco industry responded with a massive campaign designed to discredit the Auerbach study. On February 27, 1970 Joseph F. Cullman, 3rd, Chairman and. CEO of Philip Morris and Chairman of TI's Executive Committee, wrote the ACS, stating, inter alia, that:
Since the American Cancer Society asserts that the present study is of considerable import to smokers, I believe that the industry is entitled to have a full understanding of the nature and significance of the findings as quickly as possible. In the interest of accomplishing this aim, I request that the Society permit a thorough evaluation of the experiment and its results by a panel of independent scientists with wide experience in areas relevant to the data.680
The ACS replied to Mr. Cullman on March 12, 1970:
Your appraisal and suggestions are based on a summary which was prepared for the edification of science writers. It is expected that the full report will be published in the very near future. This will show the meticulous work that went into this latest scientific experiment which we believe meets the highest traditions and protocol of scientific investigation.
. . . We suggest a study of their formal papers will satisfy any scientific or other
-------------
680. Letter from Joseph F. Cullman, to William B. Lewis ACS, February 27, 1970. (1002906557; Cullman Cipollone Depo. Exh. 15). Tab 340.
- 406 -
questions regarding their findings without further investigation.681
Mr. Cullman then reiterated his request in a second letter to the ACS on March 20, 1970, threatening to bring the controversy to public attention if the ACS remained unresponsive The ACS replied on April 17, 1970:
Your request is without precedence in the scientific community. The study under question was the result of three and a half years of diligent and brilliant work by two eminently qualified scientists whose findings have been validated by distinguished pathologists of worldwide reputation. In addition, other leading pathologists, highly regarded by the scientific community, have visited Dr. Auerbach's laboratory, seen his slides and praised the work.
We do not intend to ask that these two eminent men submit their findings to any selected committee chosen by the Tobacco Institute, or any other group. 682/
The Industry countered with a massive advertising campaign designed to challenge the study and discredit the ACS. The TI budgeted $500,000 for newspaper and other announcements concerning the ACS's alleged refusal to make the
-------------
681. Letter from William B. Lewis, ACS, to Joseph F. Cullman, 3rd, March 12, 1970 (1002906599; Cullman Cipollone Depo. Exh. 16). Tab 341.
682. Letter from William 5. Lewis, ACS to Joseph F. Cullman, 3rd, April 17, 1970 (1002906562; Cullman Cipollone Depo. Exh. 17). Tab 342.
- 407 -
Auerbach data available. 683 One such advertisement was boldly headlined:
The Tobacco Institute believes the American public is entitled to complete, authenticated information about cigarette smoking and health.
The American Cancer Society does not seem to agree.684/
On October 9, 1970 the Tobacco Institute sent letters to member of Congress, stating, inter alia:
This letter is being sent to you to reveal the facts acts about what may be
- one of the great scientific hoaxes of our time.
Eight months ago--just as House and Senate conferences were about to meet and resolve different versions of the 1970 cigarette bill--the American Cancer Society called a news conference at the Waldorf-Astoria Hotel in New York City. It announced that two researchers had 'for the first time" produced lung cancer in dogs as a result of heavy cigarette smoking.
It was, in the Cancer Society's view, a "significant achievement," which should have a "significant impact' on cigarette smoking, lead to "a reassessment" of cigarette
-------------
683. Minutes Of The Thirty-Fourth Meeting Of The TI Executive Committee, May 15, 1970 (No LIS; 04209443) . Tab 343; see also, "TOBACCO INSTITUTE MAY 1970 CAMPAIGN," May 12, 1970 (6013066; 65009 0437) (detailing estimated $399,200 advertising campaign). Tab 344.
684. TI Advertisement, undated (Cullman Depo. Exh. 23). See, e.g.: "Correspondence between The Tobacco Institute and the American Cancer Society February 27, 1970/April 29, 1970" (010139) (similar to 6009463, 65009 0447); "Remarks of Joseph F. Cullman, 3rd Overseas Press Club, New York City, April 30, 1970" (010149). Tab 345.
- 408 -
advertising, and "effectively refute" the cigarette industry's contention that previous charges were "only statistical.'
The mass media accepted the unevaluated and unverified findings at face value, duly displayed the story on front pages, and exposed it on prime-time television. The Cancer Society did not reveal that the experiment was as yet unpublished in any professional journal and had not been evaluated by any independent scientific reviewers.
Walter Cronkite broadcast the Society's claim that "this is the first such direct causeeffect link between cigarettes and higher animals made to inhale."
. . .
One of the researchers who conducted the experiment was quoted in newspapers as declaring: ". . . We have snapped the last link in the chain . . . There is no question that there is a cancer causing agent in cigarette smoke."
Today, long after the initial publicity, we can report that:
--The research is
- still
--Two prestigious medical journals have declined to publish the study
--One of the researchers has now publicly retreated from claims (a) as to the number of lung cancers produced and (b) as to the significance of the study to humans.
It now appears likely that
- none
- 409 -
The Tobacco Institute believes that "the case of the smoking dogs" is a misuse of science. - - 685 TI also published -- selectively -- its correspondence with the AC S over the "smoking" beagles.686/ It did
- not
I have read with care your most recent letters . . . I note that you as a spokesman for a part of the tobacco industry continue to question the Auerbach-Hammond findings which have been reviewed and accepted by distinguished pathologists. Your recent views are much the same as those the cigarette industry has expressed since 1954 when the first American Cancer Society report on the risks of cigarette smoking was made.
- As you know
- we wrote the Surgeon General asking that he appoint a committee of scientists to review the AuerbachHammond work. His answer is enclosed - while this was sent to you at the
-------------
685. Letter from Horace R. Kornegay (TI) to Members Of Congress, October 9, 1970 (1002607131; Cullman Cipollone Depo. Exh. 25) (emphasis in original). Tab 346.
686. In a letter addressed to a scientist who had written Mr. Cullman concerning his (published) correspondence with the ACS, James Bowling stated that "the Tobacco Institute has made every effort to determine the truth concerning' Auerbach's study. Letter from James C. Bowling to Professor Ralph Grawunder, August 3, 1970 (1002906440). Tab 347.
- 410 -
- time we made it Public, I am inclined to believe from your a statements that you have not had a chance to read it carefully.
In his response to the ACS, the Surgeon General stated:
We have carefully reviewed your request that I as Surgeon General establish a committee of scientists to conduct a formal analysis of the Auerbach-Hammond study. Sympathetic as we are to the reasons which have led to this request, we do not believe such a formal review is necessary in order to establish the validity of the study.
- It is contrary to fact that scientists have been Prevented from reviewing the AuerbachHammond study or that any data have been withheld
- We understand that a number of scientists outside the Government have also_ gone over the study in detail, and that The opportunity continues for review by other persons, including scientists representing the tobacco industry.
-------------
687. Letter from William B. Lewis (ACS) to Joseph F. Cullman, 3rd, July 2, 1970 (emphasis added) (1002906536; Cullman Cipollone Depo. Exh. 20). Tab 348. See also Letter from William B. Lewis (ACS) to the Editor of The (New York) Times, May 7, 1970 (May 13, 1970 issue) (announcing ACS decision 'because of the great public interest . and because of the advertising campaign initiated by the Tobacco Institute to cast doubt on the validity of the dog study" to request the Surgeon General "to appoint an impartial scientific body to conduct an analysis of the Auerbach-Hammond study data." (6013074; 65009 0445). Tab 349.
- 411 -
. . . The procedures they [Auerbach and Hammond] have followed have been fully described in the literature; they have issued what appears to be an adequate report of their study; and they have opened their data to the inspection of other scientists. We do not know what more can be expected of investigators, especially those with the reputations for excellence and probity enjoyed by Drs. Auerbach and Hammond.
Dr. Berg has told us that he has no doubt but that the progressive changes in the bronchial tissues of the animals studied where as Dr. Auerbach has described them, and that among other conditions found were early invasive squamous cell carcinoma in the bronchial tubes of two of the dogs.
- If the quest-ion at issue is whether human-type lung cancer has been discovered in the lungs of dogs exposed to cigarette smoke. then the answer is yes
It is not necessary to go to this study to support the conclusion that cigarette smoking causes lung cancer in human beings. There was enough evidence six years ago to cause the Surgeon General's Advisory Committee on Smoking and Health to come to this conclusion, and this evidence has been strengthened in the years since. The Auerbach-Hammond study adds one more element of certainty to a conclusion which the world's medical and health authorities already consider certain.""
-------------
688. Letter from Surgeon General to Jonathan E. Rhoads, M.D., ACS, June 12, 1970 (emphasis added) (1002906537; Cullman Depo. Exh. 20). Tab 350. Philip Morris later belittled the Surgeon General's letter, describing it as an endorsement of the "validity of this study on the basis of hearsay reports." Letter from J. Bowling to Professor R. Grawunder, August 3. 1970 (1002906440). See Tab 347.
- 412 -
Even after receiving this letter, the Industry maintained its attack upon the ACS and the soundness of Auerbach's study. It called off its public relations campaign only after the study was published. 689/ To this day, the
-------------
689. Hammond & Auerbach,
- Effects of Cigarette Smoking on Dogs
- Arch. Environ. Health
- 11. Pulmonary Neoplasms
Shortly after publication of the Auerbach study, Mr. Kloepfer authored a memorandum to Mr. Kornegay concerning "a special industry group (which] met in New York December 1 to develop suggestions for you for follow-up to the publication in
- Archives
- Scientific critique
- Archives
Informational Memorandum from William Kloepfer, Jr. to Horace R. Kornegay, December 7, 1970 (T 26846; 65009 2461; Bowling Depo. Exh. 53). Tab 352. For an indication concerning the particular purposes inspiring formation of the 'Ad Hoc Legal Committee' to which Mr. Kloepfer referred, see, Letter from Horace R. Kornegay to Joseph F. Cullman, III, September 18, 1970 (1002607139; Cullman Depo. Exh. 21) (anticipating publication by Hammond and Auerbach). Tab 353.
There is no indication in the record of these cases that the industry every followed through with this "suggestion", Or, that, if it did, it ever made the results known.
-------------
- 413 -
Industry's scientific witnesses repeat the 15-year old allegations that Auerbach refused to permit independent pathologists to examine his data, in particular his slides. Curtis Judge testified he was not advised that Dr. Sommers was invited by Dr. Auerbach to examine the data. He said he would be surprised to find out if this had really happened.
On May 7, 1970, the American Cancer Society wrote all of the editors of the publications which carried the TI ad. The ACS acknowledged that it refused the TI request that TI be allowed to appoint a committee to review the findings of the Auerbach study. The ACS, however, stated:
There has never been any restriction against individual scientists' visiting the Veteran's Administration Hospital . . . and reviewing the research with Drs. Auerbach and Hammond. A number of distinguished scientists have already reviewed the findings. 690/
The ACS also requested the Surgeon General to appoint a scientific body to review the Auerbach data. 691 The TI was aware of this offer on June 1, 1970. 692
-------------
690. May 19, 1970 and May 7, 1970 letters from American Cancer Society. (50000 4732-4733). Tab 354.
691. Id.
692. Id.
- 414 -
Dr. Sheldon C. Sommers, the present-day Scientific Director of CTR, 693 however, testified as follows in the Duke and Rogers cases on December 18, 1985:
Q. What was the nature of his (Auerbach's] study? Are you familiar with it?
A. Yes. He used a tracheaostomized dog mode -- these were beagles -- and into the tracheaostomies with the bellows arrangement was pumped cigarette smoke. The dogs drooled mucous out of the tracheaostomy and out of their mouths. After the experiment came to an end. it turned out that only five percent of a rather small number of dogs had what Dr. Auerbach called lung carcinoma, and it turned out that twenty-five percent of the controlled beagles also had lung cancer. This has never been emphasized.
- Then, the slides, both shown as pictures in the articles, both of the American Cancer Society and of the publication already mentioned, are not convincing of cancer
Q. You seem to be very familiar with the the study. How did you become familiar with it? Have you talked to Dr. Auerbach about it?
A. I have not talked to Dr. Auerbach about it,
- but I have attempted in those years to be allowed to examine the slides myself since I am also a pathologist
-------------
693. or. Sommers' appointment as the CTR's Scientific Director was announced at the SAB's May 16-18, 1969 meeting. CTR confidential Report, SAB Meeting, New York, New York, May 16-18, 1969' (CTR 2926; 65008 2895; Gertenbach Duke/Rogers Depo. Exh. 12-0-2). See Tab 142.
- 415 -
Q.
- Have you requested Dr. Auerbach to present the slides for your examination
A.
- No, to allow me to visit his laboratory or to bring the slides or to send the slides any way so that I could examine the microscopic slides.
You've asked Dr. Auerbach, though, to allow you access to the slides? I think you started your answer --
A.
- Well, I made every reasonable effort to be permitted to examine the microscopic slides.
Q.
- Has Dr. Auerbach ever offered to present the slides to you?
A.
- No
Q. Dr. Sommers, I'm going to hand you Plaintiff's Exhibit No. 6 for you to take a good at it. (Tendering Exhibit)
A. (witness examining document)
Mr. Rayhill: I . . . note that Exhibit 6 does not have a CTR number. Could you tell us for the record where this came from?
Mr. Hanks:
- These were provided to the plaintiffs by -Dr. Oscar Auerbach.
Mr. Rayhill: And you represent that Exhibit 6 came out of the files of Dr. Auerbach?
Mr. Hanks: Yes
BY MR. HANKS:
Q. Dr. Sommers, can you tell us what Plaintiff's Exhibit No. 6 is?
A. Well, I best read it, hadn't I?
- 416 -
Yes.
. . .
A. There is no heading on the paper, no organization, institution, or return address on this photocopy. It is dated June 3, 1970, 151B, "Dr. Sheldon ?C. Sommers" --
. . .
A. "Dr. Sheldon C. Sommers, Director of Laboratories, Department of Pathology.' That's a totality. Pardon me. "Lenox Hill Hospital, 77th Street and Park Avenue, New York, New York.
Dear Charlie, we hear that you have some questions as to the nature of the lesions which we found in the lungs of our 'smoking dogs'. If so, your impression must be based upon the study of a few black and white photographs of the lesions in questions. Surely you will agree with us that it is easier to form an opinion by microscopically examining histologic sections than by looking at a black and white print.
Several histologic sections have been prepared from each lesion and we have shown them to a number of highly qualified pathologists, including some of our mutual friends. We would have been glad to show them to you at any time.
- The purpose of this letter is to invite you to visit our laboratory and examine the sections
With best regards, sincerely, Oscar Auerbach, M.D." - not signed, typed - "Senior Medical Investigator. E. Cuyler Hammond, SC.D.," - not signed - 'Consultant to the Senior Medical Investigator.- That ends the letter.
- 417-
Q. Dr. Sommers, do you recognize this letter?
A
- No
Q. Have you ever seen it before?
A. It's a photocopy, but
- I've never seen it before.
Q. You did not receive a copy of it?
A
- No
Q. I'm going to hand you Plaintiff's Exhibit No. 7 to take a look at.
A. (Witness examining document)
Q. Dr. Sommers --
Mr. Rayhill: Before you ask him any questions, could you tell us where you obtained Plaintiff's Exhibit 7?
Mr. Hanks: This was not something that we obtained from CTR.
- Dr. Auerbach has provided us a copy of it.
. . .
BY MR. HANKS:
Q. Dr. Sommers, can you tell us what this is, Plaintiff's Exhibit No. 7?
A. It's a photocopy of a letter, which is addressed to Oscar Auerbach, M.D.; and it's signed by Dorothy Gordon.
Who is Dorothy Gordon?
A. Dorothy Gordon is presently Chief Laboratory Secretary, Lenox Hill Hospital, Pathology Lab.
Q. In June of 1970 was she your secretary?
- 418 -
A. I believe so.
Q. Have you ever seen a copy of this letter before?
A. Not to my knowledge.
Q. would you mind just reading it into the record, please?
. . .
Mr. Rayhill: It's your exhibit. we've never seen it before. Why don't you read it into the record.
Mr. Hanks: On the top of Exhibit 7 it's got the heading of Lenox Hill Hospital, and it's got the address. It's dated June 11, 1970. It's addressed to Oscar Auerbach, M.D., veterans Administration Hospital, East Orange, New Jersey, 07019.
'Dear Dr. Auerbach, thank you for your letter of June 3 with regard to your experiment with 'smoking dogs'.
Dr. Sommers is out of town until June 29. 1 am sure he will be in touch with you as soon as possible after he returns.
Yours truly, Dorothy Gordon,'" and there's a signature by Dorothy Gordon also, "Secretary to Dr. Sommers."
BY MR. HANKS:
Q. The letter says you were out of town until June 29. Do you remember being out of town on June 11, 1970?
. . .
A. Yes. As refreshed, I was in Australia at that time, and I received a cable with reference to that.
Q. You received a cable with reference to what?
- 419 -
A. Well, what should I say? In reference to my being allowed to examine some microscopic slides of Dr. Auerbach.
Q. Whom did you receive the cable from?
- A. I believe it was from the President of Council for Tobacco Research.
Q. would you have a copy of that cable?
A. I believe not.
Q. What was the nature of the cable, if you remember?
- A. The nature of the cable was to the effect that permission on the part of Dr. Auerbach for you to review slides from the dog experiment has been withdrawn.
Q. Did you send Dr. Auerbach a cable from Australia?
A. I don't recall.
Q. How about from New Zealand?
A. I don't recall.
Why don't you take a look at Exhibit No. 8?
A. (Witness examining document)
. . .
BY MR. HANKS:
Q. Dr. Sommers, have you taken a look at Plaintiff's Exhibit No. 8?
. . .
BY MR. HANKS:
Q. Have you looked all it, Dr. Sommers?
- 420 -
A Yes.
Q. Do you know what it is?
A Yes.
Q. Would you tell me what it is?
A. It's a - -
. . .
Mr. Rayhill: It's your exhibit. I want you to read it into the record.
. . .
Mr. Hanks: Plaintiff's Exhibit No. 8 is headed "Western Union.: It's got a date on it of June 16, 1970. It appears to be a telegram. It's got the location Auckland, New Zealand. It was sent to Dr. Oscar Auerbach, East Orange, New Jersey. The text of it reads: '
- Am informed of your invitation for me to review your and Hammond's Beagle experimental material stop believe desirable also to permit other independent experts to see the slides- and protocols since as Research Director Council for Tobacco Research the review by me-alone might be considered biased
- would appreciate further opportunity for discussion Regards S.C. Sommers
. . .
BY MR. HANKS:
Q. Now, can you tell me what Plaintiff's Exhibit No. 8 is?
A. It's a photocopy of western Union Telefax, T-E-L-E-F-A-X.
Q. Did you send this telegram to Dr. Oscar Auerbach?
- 421 -
A. I believe so.
Q. were you in Auckland, New Zealand on June 16, 1970?
A. I can't remember but can find out - were you in New Zealand in June 1970?
A. I believe so.
. . .
- After you returned from your New Zealand trip, did you ask Dr. Auerbach to see his slides?
A. No. 694/
- Possible Industry Responses
The Industry probably gave more attention to Auerbach's study than it would have otherwise received. Even though the Industry contested the findings, it repeatedly placed the fact that an independent researcher found that inhalation of whole cigarette smoke produced human-like lung cancer in the media. Thus, all the Industry did was to
-------------
694. Sommers Depo. at 154-71 (emphasis added).
NOTE: Dr. Sommer's testimony effectively undercuts one of Dr. Colby's principal criticisms of Auerbach's experiment: that Dr. Sommers told him (on the basis of looking at Auerbach's data) that 'the responses were not clearcut invasive cancer." (Colby Barnes Depo. at 243-45).
- 422 -
emphasis an adverse finding. 695/ No plaintiff could have reasonably ignored the Auerbach study and chosen to be "reassured" by this Industry attack. In any case, the Industry should be able to demonstrate that the plaintiffs never heard of either the smoking beagles or the Industry response.
The circumstances surrounding Dr. Sommers' apparent ignorance of his opportunity to review the Auerbach slides needs investigation. It appears either Dr. Sommers was incorrect in his deposition testimony or that someone at TI or CTR prevented Dr. Sommers from seeing the slides. It is difficult to judge which scenario is worse. In any case, the real hoax appears to be one by TI on the public. A forthright confession of the facts is probably the best response.
Other than the fact that the Industry was offered the slides, the Industry response which is to report the smoking beagles controversy in detail is not inappropriate. It appears the industry was unfairly ambushed by a report that was not entirely valid. The detailed criticism of the Auerbach study in contrast to faded memories and lack of knowledge on other
-------------
695. TI conducted a study of reactions to the TI ads. Two-thirds of the reaction was negative. For instance one respondent said: "I didn't pay too much attention to it. I feel it is just propaganda on the part of the tobacco companies." See Research & Forecasts, Inc. "Reactions to Tobacco Institute Advert Advertisement , ' May 1970 (50000 4737 at 4748). Tab 355.
- 423 -
smoking and health issues, however, provides a basis for the plaintiffs to argue that the Industry witnesses lack credibility. Selective memory of favorable events should be avoided.
The TIRC conducted inhalation tests ten to fifteen years before the Auerbach study was released. In late 1958, the chairman of TIRC, Timothy Harnett announced: 'Animals that have been induced to inhale tobacco smoke have failed to develop lung cancer.""' The studies conducted by Cecilie and Rudolph Leuchtenberger found that mice exposed to whole cigarette smoke did not develop lung cancer." 697/ These studies may or may not withstand scrutiny of outside evaluation and review.
Later studies also have failed to produce squamous cell cancers in the lungs. Therefore, the Industry's vehement reaction may have been justified.
-------------
696. Newspaper article, 'Lung Cancer Research Will Get '59 Emphasis,'
- Anderson Mail
697. "Smoking Mice,"
- Scientific Research Reports
(50050 7764). Tab 357.
- 424 -
- F Other Efforts to Discredit Prominent Smoking and Health Critics.
- Plaintiffs Contention/Supoorting Testimony and Documentation
Legal counsel for some of the major tobacco companies apparently engineered a plan to "embarrass' Dr. Hammond. A 1971 note from C. B. wade (RJRT) notes that "Dr. Sterling is the man Shinn and Hardy are working with on this project to embarrass Hammond and raise questions in scientific community. 698 Correspondence between Dr. Sterling and Dr. Hammond indicates the project was at least partially implemented. The episode supports the inference that the open question was without scientific basis.
- Possible Industry Response
Very little is presently known about this episode. Full factual development is a predicate to attempting to defuse it.
- G. Improper Pressure on the Media
- Plaintiffs' Contention
The tobacco industry is the single largest advertiser in the United States. As a consequence of this -- and particularly since the electronic media advertising ban, after which dollars theretofore spent on television and radio
-------------
698. Memorandum from CBW, May 27, 1971 (65000 5918) (produced and selected in Barnes). Tab 175.
- 425 -
advertising flowed to the Print media -- cigarette ads are the lifeblood of many newspapers and magazines. Moreover, both the Industry and the print media are well aware of this. Consequently, the tobacco industry is well-positioned to exert its financial influence -subtly or overtly -- in order to enlist the media to support it in its opposition to a variety of public health initiatives, such as the curtailment or prohibition of cigarette advertising. In addition, an empirical case can be made that the influence of the Industry, although rarely, if ever, recorded in writing, has caused the media to refrain from publishing stories which would fully educate the public about the most preventible cause of death in our society, cigarette smoking.
- Supporting Evidence and Documentation
The documents are replete with instances in which the tobacco. industry, acting principally through the Tobacco institute, initiated direct contact with publishers in order to enlist their efforts in opposing restrictions on cigarette advertising. There are other documents which record meetings of TIRC and TI officers with media representations as well. These, however, appear to have taken place in order to provide the publisher with the Industry's viewpoint on particular issues.
- a. "Motivational" Meetings and Correspondence
- 426 -
-- A March 1963 memorandum of a conversation between George Allen (TI) and Robert Swezey, director of the Code Authority of the National Association of Broadcasters, indicated that Mr. Swezey had heard of potential congressional efforts to limit tobacco advertising on television to "adult listening hours." Mr. Swezey indicated that he "planned to draft something very tentative" and that 'the NAB was most anxious to work in collaboration with the tobacco industry in this regard. " 699/
-- A November 14, 1968 letter from Earle Clements. President of TI, to the Director of Code Authority of the National Association of Broadcasters which was a "formal complaint under the NAB Radio Code of Good Practices.' The letter alleged four anti-smoking announcements were "false, misleading and deceptive.* The letter presents statistics and other information to substantiate the complaint. 700
-- The November 4, 1970 minutes of the Communications Committee of TI indicated that Bowling (PM) had addressed the American Newspapers Publishers Association. ANPA board members had urged that their 'top staff people" receive
-------------
699. Letter from George V. Allen to Joseph F. Cullman, 3rd, March 22, 1963 (1005040430; 65009 2499; Bowling Depo. Exh. 58). Tab 358.
700. Letter from Earle C. Clements to Stockton Helffrich, November 14, 1968 (50002 3010). Tab 359.
- 427 -
briefings on the smoking and health Controversy. 701/
-- A series of TI documents offered publishers material, which TI urged that the publishers run free-of-charge, as a balance to "anti-smoking material which was then being run. I 702 Few publications accepted the offer. 702
-- Also in 1971, TI undertook to determine from the Magazine Publishers Association: 'What magazines, if faced with a loss of cigarette advertising, would find themselves in a net loss revenue position?'"" Advertising expenditure figures were sought from individual companies as well. I 705/ The express objective of the latter request was to motivate the publishers to write their congressmen and editorialize against a proposed FTC print media advertising ban. In his deposition, however, Kornegay
-------------
701. Communications Committee Minutes (As Approved 12-15-70) Wednesday, November 4, 1970, at the Institute Office (04209270; 65005 1842). Tab 360.
702. The Tobacco Institute, Inc. Documents Offering publishers material from William Kloepfer, Jr. to 'It May Come As a Surprise, Mr. Publisher...,- undated (10030411261131). Tab 361.
703. Project Report: Donated Smoking/Health Advertising, June 1971 (1003041125). Tab 362.
704. Letter from Marvin M. Gropp to Norman S. Halliday, October 1, 1971 (T 002694) . Tab 363.
705. Draft Letter to 'Dear Jim,' undated (T 010400-412) Tab
364
- 428 -
indicated that these figures had been collected only "for curiosity," and not to enlist assistance in opposing the FTC. 7 "' When confronted with the document which expressed a political motive, Kornegay testified that such a purpose was not his and was inconsistent with TI policy.
-- An October 1974, letter from Horace Kornegay to Stanford Smith, President of the Newspaper Publishers Association, cites a recommendation of the National Cancer Advisory Board that cigarette advertising be banned. Mr. Kornegay urged wide dissemination of the letter and noted that "neither of us as a matter of principle can continue to permit such unchallenged attacks on advertising." 708/
-- In March 1974, Horace Kornegay addressed the Government Relations Committee of the American Newspaper Publishers Association. In preparation therefor, a memorandum was prepared for him which detailed the cigarette advertising revenues of the attendees. 709/ In his
-------------
706. Kornegay Depo. at 395-96.
707. Id. at 397-99.
708. Letter from Horace R. Kornegay to Stanford Smith, President Newspapers Publishers Assn., October 29, 1974 (T 002388). Tab 365.
709 . Confidential letter to H. Kornegay in preparation for Kornegay's talk with newspaper representatives regarding cigarette advertising in '74, undated (T 004317). Tab 366.
- 429 -
deposition, Kornegay testified that his message to the group had only stressed the freedom to advertise. 710
-- In 1977, The American Cancer Society announced its 'Target 5" anti-smoking program and organized a number of 'forums" around the country concerning smoking and health. In response, Bowling met with Jack Kauffman of the Newspaper Advertising Bureau who, in turn, wrote a number of its members and urged them to meet with Bowling.?"' Some did.712
-- In October 1978, Kornegay addressed the Magazines Publishers Association Convention in Arizona. He informed the publishers that cigarette revenues accounted for 10 percent of all advertising revenues. 713/ In his deposition, Kornegay explained that his purpose had been to demonstrate that the publishers had an interest in their ability
-------------
710. Id.
711. Letters from Jack Kauffman to various members of the Newspaper Advertising Bureau, May 4 & 10, 1977 (003866). Tab 367. In his deposition, Bowling did not specifically ecall contacting publishers in connection with Target 5. Bowling Depo. at 150. He also denied that he had discussed the advertising revenue figures with the publishers. Id. at 156.
712. Letters to Jack Kaufman from various members of the Newspaper Advertising Bureau regarding Jim Bowling, May 9-12, 27, 1977 (003864). Tab 368.
713. Kornegay Depo. Exh. 52. Tab 369.
- 430 -
to continue to do business with the tobacco industry.
-- In 1978, HEW Secretary Califano and FTC Chairman Pertschuk apparently appealed to the broadcast media to provide more time for public service announcements. TI responded to this by running a "Dear Broadcaster' open letter in
- Broadcasting
-- In 1980, Marvin Kastenbaurm, [sic] the 'Director of statistics" at TI, wrote the editor of
- Science
-------------
714. Kornegay Depo. at 423-24.
715. Letter from William Kloepfer, Jr. to Messrs. Ave, Blalock, Bowling, Pickett, Provost, Shinn and Tucker, June 1, 1978 enclosing June 5, 1978 'Dear Broadcaster" letter from William F. Dwyer (T 0015832). Tab 370.
716. Letter from William Kloepfer, Jr. to James C. Bowling, May 5, 1978 (T 0015828) . Tab 371.
- 431 -
not suitable for publication in
- Science
-- In 1981, the American Medical Association wrote to publishers and asked them to refuse advertising for tobacco products.
- Life
In his deposition, Kornegay also indicated that
- He had met with a Vice-President of
- Time
- He had met with ANPA concerning the 1981 FTC Staff Report. 722
-------------
717. Letter from Marvin A. Kastenbaum to Philip H. Abelson. April 10, 1980 (500881643) . Tab 372. This document was located in the Reynolds files. It is not among the documents used by plaintiffs but presumably was produced by TI.
718. Letter from Charles A. Whittingham to James C. Bowling, May 21, 1981 (65009 2168; T 003569). Tab 373.
719. Letter from James C. Bowling to Hoyt D. Gardner, May 26, 1981 (T 003567; Cullman Depo. Exh. 34). Tab 374.
720. Bowling Depo. at 365-66.
721. Kornegay Depo. at 425-26.
722.Id. at 435.
- 432 -
He had met with representatives of the Outdoor Advertising Association of America concerning threatened restrictions on advertising. 723/
- b. Informational Meetings and Correspondence
- A June 1956 letter from W. T. Hoyt (TIRC) to Henry Luce of Life sought to set up a meeting between Mr. Luce and Dr. Little. The apparent impetus for the meeting was on anti-smoking article which had appeared in Life. I 724/
- A June 1958 telegram from Hill Knowlton informed Cullman (PM) that a Newsweek editorial assistants had indicated that the 'story will try to avoid discussing health charges." 725
-- A March 1958 letter from Bowling (PM) to Cullman chronicles a meeting "several years ago' between Dr. Little and Time and Life representatives. A scientific progress report' to those publications by Dr. Little is proposed. 726/
-------------
723. Id. at 437.
724. Confidential letter from W.T. Hoyt to Henry R. Luce, June 11, 1956 (1005039031). Tab 375.
725. Confidential Western Union Telegram from Hill and Knowlton, Inc. to Joseph Cullman, 3rd, June 11, 1958 (1005036802). Tab 376.
726. Confidential letter from Jim Bowling to Joseph F. Cullman, 3rd, March 17, 1958 (00026075995; Cullman Depo. Exh. 4A). Tab 377.
- 433 -
-- A May 1959 letter from James Monahan (
- Reader's Digest
-- A January 1960 letter from Richard Darrow (H&K) to Max Ascoli (
- The Reporter
-- A December 1963 memorandum from H&K to Bowling indicates that informational material concerning TI was sent to selected media personnel.729/
-- A March 1965 letter from Carl Thompson (H&K) to various industry executives indicates that an
- Esquire
-------------
727. -Memorandum Pertaining to the Visit Of Mr. James Monahan, Senior Director,
- The Reader's Digest
728. Letter from R.W.D. to George Weissman, January 15, enclosing letter from Richard W. Darrow to Max Ascoli, Editor
- The Reporter
729. Confidential Informational Memorandum "Attached Background Materials" from Hill and Knowlton, Inc. to James C. Bowling, December 18, 1963 (1005038489). Tab 380.
- 434 -
note indicates that the reporter had been referred to George Allen of TI. 730/
-- A May 1966 letter from Provost (L&M) to Dr. Kensler (ADL) notes a prospective meeting between Provost and Walter Ross. The text indicates that Ross also intended to see Wynder and others. 731/
-- In September and October 1967, respectively, TI furnished materials to James J. Kilpatrick, then a columnist for the
- Washington Evening Star
- Barron's
-- A November 1967 letter from Carl Thompson to Earle Clements (TI) informed Sen. Clements that
- Time
-------------
730 . Confidential letter from Carl Thompson to Messrs. Haas, Hetsko, Ramm, Russell, Smith, Yeaman, Bass, Blalock, Bowling, Heimann, Provost and Wade, March 8, 1965 (1003043953). Tab 381.
731. Letter from Dan Provost to Charles J. Kensler, May 27, 1966 (Provost Depo. Exh. 2). Tab 382.
732. The
- Barron's
733. Letter "
- Time Magazine
- 435 -
- c. Intimidating the Press
No documents have been located which indicate that the tobacco industry ever attempted to use its financial clout to suppress anti-smoking stories in any publication.734/ Nonetheless, it is a recurring theme at plaintiffs' seminars that publications which receive substantial revenues from cigarette advertising do not aggressively cover anti-smoking issues. 735/
- Possible Industry Response
It may well be that there is no 'optimal' industry response to plaintiffs' arguments concerning the media issue. Instead, the industry may wish to point to the 'facts of life" in attempting to influence legislation or other initiatives
-------------
734. Instead, deposition testimony indicates that H&K would encourage magazines to publish articles about the 'other side" of the S&H controversy, Thompson Depo. at 217-18, and try to 'influence' stories by providing the authors with information, both in situations in which the authors have requested it and in which H&K had learned of an article in progress and provided information without a request. Id. at 235, 237.
735. An illustrative passage, taken from Tye,
- A Note on Public policy Issues in The Cigarette Industry
- The Relevance of Overpromotion in Tobacco Products Litigation
- Cigarette Advertising and Health
- New Eng. J. medicine
- 436 -
which have been openly aimed at the industry's jugular, while displaying righteous indignation at the initiatives themselves.
The response begins with the premise that cigarettes are a lawful consumer product which Congress had determined in 1965 and on several occasions thereafter should continue to be marketed, albeit subject to certain unique restrictions. That basic decision has not been disturbed. By responsibly marketing its lawful product within those restrictions, the tobacco industry is exercising its First Amendment right to engage in protected commercial speech. It is the FTC and private health agencies which have periodically sought to upset that compromise scheme and, by seeking to legislate or otherwise enforce their own version of what is good for the public, stifle the industry's freedom of expression. To combat these proposed deprivations of constitutional rights, the tobacco industry quite naturally sought allies. It found them in the media, a group which is particularly sensitive to initiatives which implicate censorship.
In response to plaintiffs' argument that magazines and newspapers which accept cigarette advertising soft-pedal anti-smoking issues, the Industry should simply put plaintiffs to their proof. If it is empirically true that, for example,
- Newsweek
- 437 -
circulated by anti-smoking groups is simply old news. In any event, for this argument to succeed, plaintiffs would not only have to impugn the integrity of several major publications, but also establish that this "suppression' led to an uninformed public. Polling data clearly indicate the contrary.
- H. Improper Pressure on the Insurance Industry
- Plaintiffs' Contentions
No sector of the American economy has been exempt from the organized coercion of the tobacco industry. Even the most indirect allegations of the adverse health effects of cigarette smoking seem to incite the Industry's basest survival instincts. A classic example concerns life insurance.
Beginning in 1973, certain life insurance companies recognized a competitive advantage in offering to nonsmokers lower premiums on life insurance policies. Such a premium differential is based upon both actuarial and financial truths, ;.i.e., that nonsmokers will live longer and be susceptible to fewer diseases than nonsmokers, such that the reimbursable medical costs incurred by them will be less than for smokers. This differential does not penalize smokers; rather, it recognizes reality and rewards nonsmokers for their selection of a healthier lifestyle.
Even this minor discount, however, drew the ire of the tobacco industry. Publicized nonsmokers' discounts, after all,
- 438 -
would provide additional information to the smoker concerning the ill effects of smoking. For several years, therefore, on each occasion in which a nonsmokers' discount was brought to its attention, the tobacco industry brought to bear on the offending insurance company the organized might of its powerful lobby. In addition, the Industry sought to attack the validity of the underlying actuarial data, much as it has historically sought to impugn the scientific studies which have linked smoking with disease.
Perhaps the most cynical part of this whole affair, however, involves the position of Loews Corporation, the parent corporation of Lorillard. Loews is also the parent of CNA Insurance, a company which offers nonsmokers discounts. Thus, while touting the "Open Question" position through one of its subsidiaries, Loews also pursued the nonsmokers through another, thereby, at least implicitly, accepting the damning actuarial data upon which it was based. Note that Franklin Life insurance Company is an affiliate of American, 736/ although it is not known whether Franklin offers nonsmokers discounts.
Although the two positions are inconsistent on the issue of smoking and health, they are consistent in seeking to exploit the consumer for financial gain.
-------------
736. Heimann Rogers Depo. I at 39.
- 439 -
- Supporting Testimony and Documentation
The earliest nonsmokers' discount controversy documented in the production concerned automobile insurance, not life insurance, rates. The Farmers Insurance Group, apparently a midwestern concern, had advertised and offered lower rates to nonsmokers than smokers apparently based upon a Columbia University survey which concluded that nonsmokers have fewer automobile accidents than smokers. Various Better Business Bureaus took issue with these statistics. apparently prior to and independent of tobacco industry involvement. The documents indicate that the Industry was ready to intervene in the dispute, but did not have to do so. 737/
The first extensively documented 738 life insurance battle involved Allstate in 1979. The documents reveal that
- The Leo Burnett Agency informed Bowling (PM) of the discount and provided him with copies of the advertising. Bowling informed Kloepfer (TI). 739/
-------------
737. Letter from William Kloepfer, Jr. to Dennis Durden, May 10, 1975 (T 0016860; T 0016865-870). Tab 386.
738. In a January 25, 1973 speech, Kornegay had spoken of TI's success in "prevent[ing) a major insurance company from introducing a non-smokers policy.* Kornegay Depo. Exh. 63. Tab 387. Although the company was unnamed, in his deposition, Kornegay recalled that TI's first involvement in the issue concerned an offering by Metropolitan Life. Id. at 488.
739. Let ter from James C. Bowling to William Kloepfer, July 12, 1979 (65009 2446-2452; T 0016872-878 Bowling Depo. Exh. 48). Tab 388,
- 440 -
Kloepfer responded that "[W]e will see what we can do promptly." 740/
-- Kornegay thereafter informed the TI Executive Committee of the situation. He noted that tobacco state governors, insurance commissioners, and members of Congress and tobacco organizations were being alerted and that Ross Millhiser was going to contact the Allstate CEO. Allstate's parent company, Sears, Roebuck, was also targeted. 741/ In deposition. however, Kornegay stated that no political pressure was brought to bear on Sears.742/
-- Bowling characterized the rate structure as "a total phony." 743/
-- Kastenbaum (TI) raised questions about Allstate's definitions, E.g., what does 'work at keeping healthy" mean, and concluded that premiums would probably be raised for
- all
-------------
740. Letter from William Kloepfer, Jr. to James C. Bowling, July 18, 1979 (T 0016871). Tab 399.
741. Letter from William Kloepfer, Jr. to James C. Bowling, July 18, 1978, attachment: Confidential "Remarks of Horace Kornegay. 70th Executive Committee Meeting, September 13, 1979" (65009 2454-2459; T 0016871; T 004854-858; Bowling Depo. Exh. 50). Tab 390.
742. Kornegay Depo. at 508. He indicated that TI was satisfied with having had the opportunity to meet with a Sears Vice-President. Id.
743. Letter from James C. Bowling to William Kloepfer, Jr., July 23. 1979 (T 0016869). Tab 391.
744. Letter "Lower Insurance Rates for Healthy Americans," from Marvin A. Kastenbaum to W. Kloepfer and T. Frankovic, July 24, 1979 (T 0016879). Tab 392.
- 441 -
-- A memorandum (no author indicated; probably Kloepfer) indicates that a further factual investigation concerning the actuarial soundness of the discount was needed. Possible courses of action, including approaches to the insurer and/or its advertising agency and complaints to state insurance authorities, are outlined. Finally, it is suggested that Shook, Hardy and Covington & Burling be consulted. 745
-- A memorandum from Panzer to Kloepfer, responding to the memo noted above, notes that the FTC had recently held hearings on life insurance cost disclosure and that there were then efforts underway in the Senate to repeal the McCarran-Ferguson Act and place regulation of the insurance industry under federal control. 746'
-- A memorandum from Kleopfer to Frankovic reports the results of TI's investigation.* Inter alia, it notes that "there is a good likelihood that any policy offered now at 'reduced rate" is genuine, rather than amounting to a raised rate for smokers and only a comparably lower rate for nonsmokers." 747/
-- The Tobacco Growers Information Committee, Inc., addressed a letter to
-------------
745. Memorandum 'Insurance Policy Assignment," to F. Panzer, M. Kastenbaum and T. Frankovic, July 27, 1979 (T 0016865-867). Tab 393.
746. Memorandum 'Insurance Project' from Fred Panzer to Bill Kloepfer, August 3, 1979 (T 0016879). Tab 394.
747. Memorandum 'Insurance Assignment' from William Kloepfer, Jr. to Tom Frankovic, August 15, 1979 (T 0016888-889). Tab 395.
- 442 -
tobacco producers, informing them of the Allstate discount. It claimed that Sears, Roebuck was "now turning on usand urged a letter-writing campaign on the issue.748/ A memorandum from Kloepfer to Frankovic asserted that TI had learned of this letter from a ,broadcast media source' and that, although TI "provides substantial support to TGIC, but it does not have any position on the TGIC board nor does it participate in TGIC policy decisions." 749/
In 1980, Occidental Life advertised lower life insurance rates for nonsmokers. Its ads cited statistics which alleged that smokers had a "higher death rate at all ages" than nonsmokers. The headline read 'Stop smoking and breathe easier." 750
- A January 10, 1980 memorandum from Kastenbaum to Bowling contested the statistics cited in the ad.? 751/ Ironically, the principal authority for Kastenbaum's position was the 1979 Surgeon General's Report.
-------------
748. Letter from Billy Yeargin to Tobacco Producers, September 10, 1979 (65009 2460-2461; T -15583-574; Bowling Depo. Exh. 52). Tab 396.
749. Memorandum from William Kloepfer, Jr. to Tom Frankovic, September 17, 1979 (T 0015572). Tab 397.
750. Advertisement "Stop Smoking and breathe easier. (A Healthful Reminder from Occidential Life)-, undated (T 00630-631). Tab 398.
751. Confidential Memorandum 'Advertisement by Occidential Life for Reduced Non-Smokers Insurance Rates -- PRELIMINARY COMMENT," from Marvin A. Kastenbaum to James C. Bowling, January 10, 1980 (T 003596). Tab 399.
- 443 -
-- Three weeks later, Kornegay wrote the President of Occidental Life and cited these alleged errors. He noted that such advertising was "a disservice to the public as well as to the hundreds of thousands of individuals earning their livelihood in an industry which contributes some fifty billion dollars annually to the U.S. Gross National Product. . 752 /
-- The Second Vice President of Occidental responded to Kornegay and identified the source of the statistics as the American Cancer Society. He indicated that he would discuss Kornegay objections with the ACS."" Kornegay, in turn, promptly responded by pointing out for Occidental the strong anti-smoking bias of the ACS. 754/ This letter was a greatly muted version of a draft which had been prepared for Kornegay and cleared by Shook, Hardy. The draft had cited three "transgressions" of the ACS, including a discussion of the Auerbach affair, which it described as the most abusive single episode in ACS' campaign against tobacco. 755/
-------------
752. Confidential letter from Horace R. Kornegay to Mino T. Lake, January 31, 1980 (T 000627). Tab 400.
753. Letter from Robert W. Graf to Horace R. Kornegay, February 28, 1960 (T 000625). Tab 401.
754 . Letter from Horace R. Kornegay to Robert W. Graf, March 6, 1980 (T 000623). Tab 402.
755. Memorandum from George E. Schafer, Jr. to Mr. Kornegay, undated, attachment: Confidential draft letter to Mr. Graf, undated (T 003522). Tab 403.
- 444 -
Also in 1980, TI was alerted by the Virginia Tobacco Company that J.C. Penney was offering a ten percent nonsmokers' discount. 756/ Together with a proposed response to Virginia Tobacco, Panzer suggested to Kornegay that he "might want to organize an effort similar to that used with Sears." 757/ That "effort" apparently refers to the mobilization of tobacco state governors, congressmen, insurance commissioners, and growers discussed earlier.758/
The final documented involvement of the tobacco industry in the insurance business involved a paper prepared for the 1980
- Transactions
-------------
756. Confidential letter from H. S. Meade to Horace R. Kornegay, November 21, 1980 (T 004401). Tab 404.
757. Memorandum "JC Penney Insurance" from Fred Panzer to Horace Kornegay, December 1, 1980, attachment: Proposed letter from Horace Kornegay to H. S. Meade, December 1, 1980 (T 004400, 004399). Tab 405.
758. See text accompanying note _____, supra.
445 -
the mortality of smokers and non-smokers. 759/ Kastenbaum appeared satisfied that he had wrested some concessions from the authors 760 and that his comments had appeared together with the paper in
- Transactions
Curtis Judge testified that CNA one of Lorillard's sister companies, offers nonsmokers a discount on life insurance premiums. 762/ Thus, Loews has specifically recognized the validity of the health claims when it is profitable to do so but refuses to admit or recognize the validity in the cigarette context. Loews is attempting to play both sides of the controversy at the same time. This fact strongly undermines the validity of the Open Question, especially the position that statistical association is valid only to justify "more research.'
-------------
759. Letter from Michael J. Cowell to Marvin A. Kastenbaum, September 16, 1980, attachment: 'Morality Differences Between Smokers and NonSmokers," by Michael J. Cowell, FSA and Brian L. Hirst, FSA, "Author's Review of Discussion," undated (T 000577-604). Tab 406.
760. Confidential letter 'Lower Life Insurance Premium for Nonsmokers" from Marvin A. Kastenbaum to Horace R. Kornegay, October 16, 1981 (T 000667668). Tab 407.
761. Confidential letter 'Status Report - Nonsmoker Insurance Premiums - State Mutual Manuscript," from Marvin A. Kastenbaum to Horace R. Kornegay, September 25, 1980, attachment: Volume XXXII 'Society of Actuaries Transactions," 1980 (T 000563; T 000687-764). Tab 408.
762. Judge Depo. at 265-66.
446 -
- Possible Industry Response
A starting point to the Industry's response to allegations of attempting to influence the insurance business ought to be that any evidence of this is irrelevant to the smoking and health litigation. whatever addition advertised nonsmokers' discounts might make to the public awareness of the allegedly harmful effects of smoking is dwarfed by the anti-smoking information already in the public domain. In short, it is at best a collateral issue.
It may also be worthwhile to note that, despite the heavy-handed methods used, e.g., contacting tobacco state governors, congressmen, and insurance commissioners, the Industry did have a good faith dispute with the statistical and actuarial underpinnings of, for example, the Occidental ads. Indeed. Kornegay testified that he believed the ads to have contained "gross inaccuracies.-" The fact that the Occidental ad was based upon ex parte discussions with ACS may cause the jury to believe that it was only fair that the tobacco industry be given an opportunity to present its side. That certain of Kastenbaum's objections to the State Mutual
-------------
763 . Kornegay Depo. at 493. Similarly, he testified that TI never sought to "prevent" an insurance company from offering a non-smoker's policy; rather the tobacco industry only sought to learn the data upon which such a policy would be based. Id. at 487.
-447 -
paper were taken to heart by its authors is some evidence of a sound basis for the Industry's objections.
Finally, a little education in the world of
- realpolitik
- either
The response to one Loews subsidiary recognizing the validity of the health claims lower life insurance rates for nonsmokers, while another denies the validity is more problematical. The first line of defense ought to be that the action of CNA is not admissible as an admission by Lorillard. The plaintiffs must also be prevented from asking Lorillard executives whether they "agree" with the discounts.
-------------
764. Bowling Depo. at 520, 508.
765. Id. at 516.
- 448 -
The approach is basically terrible. The response outlined above that the nonsmoker discounts are nothing more than a marketing gimmick makes Loews look doubly deceptive and doubly greedy. James Bowling testified he thought the discounts were "a purely exploitive selling device.- This is after the CNA disc discounts were brought to his attention. He said they were "phony" and "misleading." 766/ More thought is required on this issue.
A response analagous to that concerning the marketing of filters and low tar cigarettes may be in order: we do not accept the motivations underlying the consumer demand for these policies, but, as realistic businessmen, we must respond to that demand. Therefore, we offer these policies. For CNA, health is not the issue; market demand is. If CNA was a "leader" or pioneer in offering the discounts, this response is inappropriate.
Paul G. Crist
William E. Marple
Stephen J. Kaczynski
Thomas L. Abrams
-------------
766. Bowling Depo. at 516-20.
- 449 -
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