Tobacco.org

• EDITORIAL: Cynicism and Big Tobacco  

handing off tobacco to the EPA makes about as much sense as its nearly completed pass to the Food and Drug Administration. A bill expected to be voted on soon would impose new restrictions on marketing, raise cigarette taxes, and police the ingredients in tobacco products, including nicotine levels. Any reckless FDA policy is bound to be popular . . .

it contradicts the premise of the federal government's case against Big Tobacco. Initiated by Janet Reno and continued by the Bush Administration, the federal suit argued that the industry committed fraud by falsely implying that light or low-tar cigarettes were healthier than standard smokes. Now Congress wants the FDA to mandate less nicotine and tar - the very practices it once claimed to find so odious.

In a final irony, the politicians backing this bill, especially sponsors Ted Kennedy and Henry Waxman, are the same ones demanding that the FDA crack down on "Big Pharma." They say it isn't doing enough to protect the public from risky but possibly beneficial new drugs. So: Lend the FDA imprimatur to an inherently dangerous product to fatten it up for taxation, while at the same time slow down or block the approval of life-saving therapies that treat disease instead of cause it. Congressional priorities are rarely so grotesque.

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EXCERPTS FROM JUDGE GLADYS KESSLERS’ FINAL OPINION IN Civil Action No. 99-2496 (GK) United States v. Philip Morris, et al.* (PDF) 

Finally, despite Defendants’ claims that they have materially altered their management and are now “new” companies, the evidence demonstrates that they have not changed their policies or personnel in any meaningful way. For example, Philip Morris’ current top executive staff is composed entirely of veteran employees with an average of fifteen to twenty years of company experience. The assertion that such longstanding, faithful employees will usher in dramatically new corporate policies seems reasonably unlikely.

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UC tobacco money ban delayed -- again 

The recent decision by the University of California Board of Regents to delay ruling on whether to ban research funding from tobacco companies extends a long period of division among UC faculty and administration. . . .

Last August, the district court of the District of Columbia found Philip Morris guilty of manipulating and misrepresenting scientific data, violations of the federal Racketeer Influence and Corrupt Organizations (RICO) act. The company was cited for the Center for Indoor Air Research, created and operated by Philip Morris under the auspices of an independent research facility, which produced data that furthered Philip Morris's economic goals. The Center funded a study led by James Enstrom, a University of California, Los Angeles researcher, who the Judge directly implicated in the misconduct.

Many University of California faculty members say they are frustrated by the board's hesitation to vote on the ban, especially in light of foul play on the part of the tobacco companies.

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• US v PM , U.S. and Joint Accepted & Offered Trial Exhibits 

This is a set of both the offered and accepted U.S. and Joint trial exhibits from U.S. v. PM.

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Tobacco Ruling Hurts Companies  

The Tobacco Companies are back in the Appellate Court after a Federal Judge ruled that they violated anti-racketeering laws by promoting lite cigarettes as safe. . . .

You might soon start to see the newspaper ads that Judge Kessler ordered the tobacco companies to place across the United States in which the companies are to make corrective statements regarding the health risks of smoking. Next we will need to see whether the actions of these companies amounted to misleading their own investors. There has got to be someway that Wall-Street can make money out of this deal.

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• Uphold tobacco verdict, U.S. asks 

The U.S. government asked a federal appeals court to uphold a ruling that Altria Group Inc.'s Philip Morris USA and other U.S. cigarette-makers violated anti-racketeering laws by marketing low-tar cigarettes as healthier alternatives to full-flavored brands.

U.S. District Judge Gladys Kessler in Washington issued her 1,653-page decision in August 2006. The manufacturers won a delay of the ruling while they appeal.

"The district court's opinion reveals a decades-long coordinated campaign to deceive American consumers about the toxicity and addictiveness of cigarettes," the government said in a filing Monday with the appeals court in Washington. . . .

In briefs filed with the appeals court Aug. 10, the tobacco companies argued that they couldn't be found to constitute a racketeering conspiracy under the law and that Kessler applied a wrong legal standard in finding that they were likely to commit future racketeering violations.

They also argued that her judgment conflicted with the Federal Trade Commission's policies and that the labels weren't meant to defraud consumers.

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• U.S. wants ruling upheld against cigarette-makers 

The U.S. government asked yesterday that a federal appeals court uphold a ruling that Philip Morris USA and other U.S. cigarette-makers violated anti-racketeering laws by marketing low-tar cigarettes as healthier alternatives to full-flavored brands.

Gladys Kessler, a U.S. District Court judge in Washington, issued her 1,653-page decision in August 2006. The manufacturers won a de­lay of the ruling while they appeal.

“The district court’s opinion re­veals a decades-long coordinated campaign to deceive American consumers about the toxicity and addictiveness of cigarettes,” the government said in a brief filed with the U.S. appeals court in Washington.

The government argued that Kessler did not abuse her discretion when she ordered the cigarette-mak­ers to stop labeling products “light” or “low-tar.”

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• ENSTROM: Defending legitimate epidemiologic research: combating Lysenko (PDF) 

The instantaneous attack on our paper appears to have been a coordinated effort, primarily organized by the ACS and Glantz. Glantz is a well-known anti-smoking activist who has worked closely with the ACS for many years [10]. As part of this coordinated effort, Glantz organized a May 15, 2003 Miami, Florida press conference involving a panel of "international experts" in order to "debunk" our "Marry a Smoker, Get Less Cancer" study before the press embargo ended [11]. At the time of the ACS press release and the Miami press conference, neither the ACS, Glantz, or the other Miami "experts" had access to the full ten-page version of our paper, let alone time to read it and carefully analyze it. The full version of our paper was not posted on the BMJ website ("www.bmj.com") until the press embargo lifted at 7:01 PM EDT on May 15, 2003 [1]. The only version available when the embargoed BMJ press release was issued on May 13, 2003 was the abridged five-page paper that appears in the print version of the BMJ [12]. Obviously, these critics chose to hastily write a press release and hold a press conference based on limited information. They did not have the integrity or objectivity to read our full ten-page paper or to contact the authors before beginning their attack, which included erroneous claims about the paper's content and quality. . . .

On March 8, 2005 Glantz participated with other UC faculty members in a San Francisco based• KQED radio program entitled "Funders and Academic Research: Forum assesses the• controversy surrounding the relationship between funders and academic research," which can be• listened to on the Internet and audio files [61]. During this program Glantz attempted to• discredit well qualified scientists and their peer-reviewed research publications by• inappropriately linking them to the tobacco industry. The "scandal" about me and my BMJ study• was discussed during minutes 17-19 of this 52 minute program, when Glantz made several• clearly false and inflammatory statements. First, Glantz claimed that the BMJ study "was not• funded by the American Cancer Society," but was "done with Philip Morris' money." Actually,• the study was funded by ACS from 1959 to 1990, by the UC Tobacco-Related Disease Research• Program from 1991 to 1997, and by the Center for Indoor Air Research (CIAR) from 1998 to• 2003. Philip Morris provided no direct funding for this study and had no role in its conduct. • Then, Glantz stated that I was "a damn fool" who was told by ACS that I "made inappropriate• use of the data", an unsubstantiated claim made only after Glantz and ACS learned of my results. • Then, Glantz implied that I was "advocating a pro-tobacco position" when I have never done. • Finally, Glantz claimed "the science that the UCLA study did was crap", whereas it clearly• conformed to the standards of epidemiologic research. These statements indicate the• unprofessional approach used by Glantz to attack scientific findings with which he disagrees and• to advocate positions that are not supported by the facts.• . . .

Glantz cited my• BMJ study as one rationale for such a ban in written documents [65] and in a January 18, 2007• presentation before the UC Regents [66]. The UC Regents requested advice on this issue from• the UC Academic Senate, which spent several months carefully evaluating the matter [67]. My• perspective, including a defense of my research, my funding, and my scientific integrity, was• presented to the UC Academic Senate in April 2007 [68]. In May 2007 representatives of the• UC Academic Senate voted almost unanimously (15 to 1 by the Academic Council and 44 to 5 by the Academic Assembly) in favor in academic freedom and against a proposed ban on• tobacco industry funding advocated by Glantz [69-71].• . . .

The attack described above was quite startling to me as someone whose honesty and scientific integrity had never been questioned during the 33-year period from July 1970, when I received my Ph.D., until May 2003. . . .

Although I have refuted the erroneous statements in their May 15, 2003 press release, the ACS has shown no interest in correcting the record with regard to me and my research. Their press release has been posted on up to 1,000 locations on the Internet during the past four years, based on Google searches of the phrase "American Cancer Society Condemns Tobacco Industry Study." It is still posted on many websites in addition to ACS's own website. Our BMJ and Lancet letters and our new meta-analysis defending the validity of our BMJ paper are being ignored by the ACS. . . . One particularly pernicious aspect of the attack described above is the fact that my BMJ paper is now part of the largest ($280 billion) Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuit ever filed, United States of America v. Philip Morris USA, et al. [Civil Action No. 99-CV-02496(GK)] [94,95]. My research and I are described in a defamatory way on pages 821-830 within the section "Defendants Used Their Jointly Controlled Organizations to Promote Their Agenda Through Symposia, Publications and a Roster of Long-time Paid Scientists" of the 2543-page pretrial "UNITED STATES' FINAL PROPOSED FINDINGS OF FACT (July 2004)" prepared by the U.S. Department of Justice (USDOJ) [96]. The trial took place in front of U.S. District Court Judge Gladys Kessler from September 2004 though June 2005 [94]. Additionally, my research and I are described in a defamatory way in several places in the 2454page post-trial document "UNITED STATES' FINAL PROPOSED FINDINGS OF FACT (Incorporating Errata of August 16, 2005)" prepared by the USDOJ [97]. Specifically, my BMJ paper is listed on page vii of the Table of Contents under the category "Cooking the Books: The Manufacture of False Science to Support the Industry Position on ETS." On page 493 it is included among "examples of scientific fraud" and on page 589 it is described as "at best a contamination of the scientific literature and at worst a scientific fraud." It is discussed in detail on pages 609-615, where there are numerous false statements and distortions, such as, "the Enstrom/Kabat study is yet another self-serving, unreliable, and scientifically questionable product of the industry's unabated effort to attack the scientific consensus on passive smoking." Although no actual evidence was presented of errors in my study or of scientific misconduct on my part, the lawsuit makes it appear that I have engaged in scientific fraud. The available evidence indicates that insertion of the BMJ paper was a collaborative effort of Glantz and Sharon Y. Eubanks (D.C. Bar No. 420147), Director of the USDOJ Tobacco Litigation Team from 1999 until December 2005, when she resigned from the USDOJ [98]. The following brief in Civil No. 99-CV-02496 (GK), "REPLY IN SUPPORT OF THE UNITED STATES' THIRD MOTION TO COMPEL PRODUCTION OF DOCUMENTS WITHHELD BY BROWN & WILLIAMSON BASED ON ASSERTIONS OF PRIVILEGE OR PROTECTION," was prepared by Eubanks and signed on December 5, 2003. This brief is posted on the same listserv that Glantz has used to post other defamatory information about me [99]. Pages 8, 9, and 14 of this brief contain a misleading and distorted presentation of my alleged "ties" with the tobacco industry going back "nearly 30 years." This presentation later appeared in the July 2004 and August 2005 Findings of Fact of the USDOJ lawsuit. This 2003 brief does not present any evidence challenging my honesty as a scientist or the validity of the findings in my BMJ paper. It is simply an attempt to smear my reputation with inappropriately constructed "ties" to the tobacco industry, based on the fact that I had correspondence with the tobacco industry regarding my epidemiologic research. . . .

the Judge identified no specific errors in the study and identified no scientific misconduct by me. At no time was I ever given an opportunity to challenge or refute the statements made about me and my research in the USDOJ Findings of Fact, in the trial itself, or in the Kessler opinion. I am now in the process of clearing my name in connection with this lawsuit and this paper represents a major step in that process. . . .

On page 1234 she states: "The Court accepts and credits Dr. Samet's conclusions, based on his expertise, as well as the other factual findings herein, that exposure to secondhand smoke causes lung cancer and coronary heart disease in adults and a number of respiratory diseases in children." It is worth repeating the allegations in the Kessler decision, first to point out that they are the same false and misleading claims about the Enstrom/Kabat study by the ACS, Samet, Glantz, and others that are described above, and second to show how obviously incorrect they are. The Enstrom/Kabat study was not "CIAR-funded and managed" and was not "funded and managed by the tobacco industry through CIAR and Philip Morris." Although the study was partially funded by CIAR, it was not managed by either CIAR or Philip Morris. Indeed, CIAR assigned its entire award for the study to UCLA in 1999 just before CIAR was dissolved as a condition of the Master Settlement Agreement [105]. CIAR did not even exist when my study was being completed. The study was conducted and published without any influence from the tobacco industry. . . .

Based on the record presented above, Eubanks has obviously dealt extensively with both Glantz and Samet regarding the issue of my BMJ paper and the USDOJ lawsuit. She injected herself directly into the UC tobacco industry funding ban issue with a lecture before the Regents on July 18, 2007, when she described the USDOJ lawsuit and its connection to UC [110]. She claimed that Judge Kessler was "a neutral fact finder, a federal judge, who made her findings of conspiratorial conduct objectively" based on "a full and fair record." However, she knows that the record is not objective and that I was never given any opportunity to defend myself and my BMJ paper during the trial. In an eloquent defense of academic freedom at UC, the 2006-2007 UC Academic Senate Chair John B. Oakley challenged Eubank's linkage of the USDOJ lawsuit to UC and raised the issue of whether Judge Kessler's opinion would ultimately be upheld upon appeal . . .

In order to explain the phenomenon that has made this defense of my epidemiologic research necessary, Geoffrey Kabat, Sheldon Ungar, and I presented a symposium entitled "Reassessment of the Long-term Mortality Risks of Active and Passive Smoking" at the 2nd North American Congress of Epidemiology in Seattle, Washington on June 24, 2006 [127]. We described major misrepresentations that are currently occurring with regard to the epidemiology of both active and passive smoking, as well as the silencing of science associated with this area of epidemiology. . . .

concluded our Symposium by drawing an analogy between the current situation involving ETS epidemiology in the United States and the historical situation involving agronomist Trofim Denisovich Lysenko and plant genetics in the Soviet Union during the period of 1927-1962 . . .

Funding of this paper is the same as that of reference 39. The content of this paper is based on the knowledge I have acquired during my entire epidemiologic career, during which I have had many funding sources. My competing interests are fully discussed in the text of this paper and in reference 1 and are known worldwide thanks largely to the efforts of Glantz, Thun, and Samet. My personal stake in the matters discussed here should be self-evident. In order to address concerns about my competing interests, this paper is entirely transparent and its contents can be verified with the references cited.

References

1.

Enstrom JE, Kabat GC. Environmental tobacco smoke and tobacco related mortality in a prospective study of Californians during 1960-98. BMJ 2003;326:1057 [http://www.scientificintegrityinstitute.org/BMJ051703.pdf] [http://bmj.com/cgi/reprint/326/7398/1057.pdf]. . . .

Enstrom JE, Kabat GC. Environmental tobacco smoke and coronary heart disease mortality in the United States – a meta-analysis and critique. Inhalation Toxicology 2006;18:199210

[http://www.scientificintegrityinstitute.org/IT030106.pdf] [http://www.journalsonline.tandf.co.uk/link.asp?id=tu644n1t32650134].

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Special Report: Department of Justice Civil Lawsuit: Timeline 

3/16/07 Judge Kessler denies motion by tobacco company defendants to continue to use deceptive terms such as "light" and "low-tar" in marketing cigarettes overseas.

11/9/06 Public health intervenors file notice of appeal with intent to appeal the remedies portion of Judge Kessler’s final judgment and order

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Special Report: Department of Justice Civil Lawsuit: Letters from Congress and Other Officials 

Letters from Congress and Other Officials

Letter from Members of Congress Requesting Justice Department Investigation (June 8, 2005)

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Special Report: Department of Justice Civil Lawsuit 

Update On October 31, 2006, the U.S. Court of Appeals for the DC Circuit granted the tobacco companies' request for a stay of Judge Kessler's judgment and order while the case is on appeal. It is not unusual for the appeals court to grant a stay while the appeal is pending, and this stay is not indicative of the eventual outcome of the appeal. The effect of the stay is to stop any implementation of Judge Kessler's order until the appeal is resolved or the stay is otherwise lifted.

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• About the Collections 

United States Department of Justice

The United States Department of Justice collection is a special collection of documents that defendants in United States v. Philip Morris, et al., No. 99-CV-2296 (D.D.C. filed Sept. 22, 1999), initially withheld from production to the United States on grounds of privilege or other protection. Over the course of numerous privilege challenges by the United States, the defendants withdrew their privilege assertions for many documents and voluntarily produced them to the court. Separately, the court held that a number of documents were not to be protected by attorney-client privilege and the defendants were ordered to produce these documents. This collection includes both voluntarily-produced documents and documents produced subject to court compulsion.

* The documents considered for this collection were first compared against documents already in the Legacy Tobacco Documents Library to avoid duplicates. Thus, the absence of a particular document from this special collection - at least if it is already present in another part of the library - does not indicate whether it was or was not produced in United States v. Philip Morris, et al. . . .

* The United States Department of Justice collection was added to the Legacy Tobacco Documents Library in October 2007.

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• Doctors slam Health Canada for attending tobacco industry conference 

Outraged medical experts say Health Canada's participation at a U.S. tobacco conference this week lends credibility to an industry that's been slammed for racketeering and fraud.

They accuse the federal government of hob-nobbing and sharing research with a sector that last year was found by a U.S. judge to have deceptively chased profits for decades without regard for related suffering and death.

This, as several provinces have launched or are paving the way for similar legal action.

"The industry lied about addiction, lied about the risks of its products, lied about lite and mild cigarettes, lied about marketing to children," said Garfield Mahood, executive director of the Non-Smokers' Rights Association.

"And the various conferences that the industry sponsored over the years were judged to be part of the racketeering and fraud."

He is among 44 doctors, nurses and health advocates who signed an open letter to Health Minister Tony Clement demanding answers. . . .

Adding insult to injury, says the letter, is the fact that several Health Canada officials have pulled out of a national conference starting Sunday in Edmonton on how to reduce smoking. . . .

Seven Health Canada officials went to the Tobacco Science Research Conference in Charlotte, N.C., presenting findings on such topics as "Nicotine Trends in Canadian cigarettes from 1968-2005."

"Our scientists have been attending this conference for the past 10 years," Smith said.

Officials will continue to go to such events, she said, despite the damning findings of fact made against American tobacco giants last year. U.S. District Judge Gladys Kessler pounded the industry in a case brought by the Department of Justice.

"This is a science-based ministry," Smith said. "People here don't respond to judges who may say: 'Racketeering, non-racketeering.'

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This is a science-based ministry. People here don't respond to judges who may say: 'Racketeering, non-racketeering.'
Rita Smith, a spokeswoman for Canadian Health Minister Tony Clement, on Health Canada's attendance at tobacco-sponsored conferences in light of Federal Judge Kessler's decision in the 2005 DOJ RICO lawsuit.

• UC regents OK steep fee hikes 

Garamendi also was one of the regents who opposed the tobacco restrictions, which had been debated at two previous board meetings. Thursday's discussion led to tense exchanges between faculty leaders -- who argued the measure would cause "collateral damage" -- and regents.

Regent Richard Blum dismissed faculty claims that the board should not be interfering in academic research, angrily telling Academic Senate Chairman Michael Brown that regents were responsible for protecting the university's reputation.

A recent federal racketeering case proved that tobacco companies, which have given millions to support UC research, are interested only in controlling the conclusions of academic studies, Blum said.

"If al-Qaida wanted to come here tomorrow and give you money to study other religions, would you take it?" Blum asked Brown. "I guess you would."

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If al-Qaida wanted to come here tomorrow and give you money to study other religions, would you take it? I guess you would."
University of California Regent Richard Blum angrily telling Academic Senate Chairman Michael Brown that regents were responsible for protecting the university's reputation in light of the DOJ decision.

• Trial Tech Smokes Out Big Tobacco 

Senior counsel Sharon Eubanks, a 22-year veteran attorney at the U.S. Department of Justice, quit her job on the cusp of the most significant legal victory of her career. She left in December 2005, just eight months before a judge would decide the huge tobacco case she had devoted six years to prosecuting.

She was not the only lawyer to leave a Justice post abruptly, citing interference from politicians in the Bush administration. Echoes of Eubanks' allegations reverberated in this year's scandal involving accusations that Attorney General Alberto Gonzalez and his top deputies fired nine U.S. attorneys for failing to follow the administration's political line. Gonzales has apologized for the manner in which the attorneys were fired, but insists that "nothing improper occurred," according to CNN.

Eubanks' decision to leave such a high-profile case could not have been easy. She led the largest civil racketeering and conspiracy case in U.S. history: United States of America v. Philip Morris Inc. et al. (Civil No. 99-CV-02496).

The massive litigation included three years of discovery and trial preparations. Both parties processed millions of documents and generated thousands of exhibits, including complex animations. . . .

Animation was a critical component of Justice's presentation. For the five months leading up to trial, Eubanks, Brody, and several of their expert witnesses worked to create exhibits on smoking, basic respiration and other matters with Denver-based trial exhibits company Z-Axis, led by CEO Alan Triebitz.

Perhaps the most compelling of the animations was the depiction of a smoker. . . .

Defense attorney Dan Webb says the courtroom technology helped keep a 116-day trial fresh and interesting. "Very little time was spent during the course of [trial] where a witness wasn't being examined about an exhibit or demonstrative, being confronted with prior testimony, or being asked to pay attention to a diagram or easel as the examining attorney wrote on it."

Justice and tobacco companies shared most of the courtroom equipment and split the cost, explains Jamey Johnson, senior managing director, FTI Consulting Inc., who oversaw the trial technology for the defense. The total shared equipment cost for the duration of trial was approximately $70,000, according to another trial participant who asked not to be named..

The litigation services division of CACI International Inc. managed the Justice Department's courtroom technology. . . .

Today, Eubanks, 51, lives just outside Washington, D.C., in McLean, Va. Of course, she's working on a book about her experience at the Department of Justice.

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