You have to admit: Law firms defending the behavior of cigarette companies, especially from 1950-1980, really have their work cut out for them. Their mission is to defend a client who for decades systematically misrepresented the truth about cigarette smoking and health.
In a remarkable, confidential, internal document (now available on the internet; see http://www.tobacco.org/Documents/jonesday1.html ), lawyers from the firm Jones and Day present a roadmap of their clients' lies and deceptions starting in l950, and in numerous places show their disgust at the stupidity, arrogance, and chutzpa of the very clients they are now representing. The document is undated, but given its content, it is likely it was prepared in the late l980s.
Some examples of the brutally candid advice tobacco lawyers gave their squirming clients:
The Tobacco Institute (TI), which represented the major manufacturers since the early l950s, maintained for decades that there was no evidence that cigarettes caused disease, or that at worst the issue was still an "open question". The Jones and Day memo calls the TI statements that deny causation "conservatively speaking, imprudent and impolitic," noting "no member company of TI has ever disassociated itself from TI statements."
The memo continues, "even if the tobacco companies believed [that tobacco and health was an open question] in l954, industry documents demonstrate that the industry has had grave doubts about its validity for over 25 years."
Remember, this charge is being related by the attorneys who were advising and representing Big Tobacco in court.
"For example," the memo continues, "a l967 document prepared by J.S. Dowdell (RJRT) acknowledged that 'the industry has little, if any, positive evidence' to refute the health charges. To a similar effect is a l962 letter from W.S. Crutchens (B&W) to Bowman Gray (RJRT). Of greater concern is a l968 memorandum in which William Kloepfer (from the Tobacco Institute) concedes: 'our basic position in the cigarette controversy is subject to the charge, and may be subject to a finding, that we are making false and misleading statements to promote the sale of cigarettes'. Nevertheless, the campaign continued. Indeed a l972 Tobacco Institute memorandum outlines a 'holding' strategy as consisting of 'creating doubt about the health charge without actually denying it.' The proposed strategy was to assert alternative causation theories as a mechanism to avoid addressing the primary health issues."
Did tobacco executives know about the dangers of smoking, and when did they know?
The answer is "you bet they knew years before almost anyone else did." Consider this candid statement by Jones and Day, in the course of a text that lamented how ignorant cigarette executives appeared when asked in public about the literature linking smoking and health:
"Although information dating to the l930s was sufficient to put the tobacco companies on notice (and trigger both duty to investigate and a duty to warn), evidence linking cigarette smoking and cancer clearly existed and was universally known in scientific circles during the period l950-l954. By the same time, credible evidence linking smoking with cardiovascular and nonmalignant pulmonary diseases emerged."
Further, and even more damning, the memo notes: "Plaintiffs will contend that the companies knew or should have known of scientific data linking cigarettes and lung cancer during the l930s, or at least the l940s. In any event the evidence is irrefutable that the companies were aware by l954 of the early epidemiological studies and the l953 Wynder-Graham mouse skin painting study."
These are statements from the same law firm that, during multiple depositions with me, has argued that the Industry knew nothing about cigarettes causing disease because the data were not available to support such a view.
Drawing Attention to Flawed Research
Beginning in the l980s, I began to write regularly to the head of the Tobacco Institute, noting that while the Industry rejected the causal link between cigarettes and disease and the thousands of studies that documented this link, the Industry had never set forth exactly what its criteria for causation were that is, what type of evidence they would accept as proving causality.
Jones and Day in their memo made exactly the same charge toward their own clients when they wrote "to this date, no industry witness can identify the quantity or quality of evidence it would take to convince him that there is a causal relationship between cigarette smoking and lung cancer or other diseases."
Tobacco companies and their lawyers have long maintained in public that the research they funded and the research of the Tobacco Industry Research Council (TIRC) was completely independent, not influenced by cigarette companies.
The Jones and Day memo clearly explodes that lie: "although the Industry funded a number of other 'outside' research programs, it did so only when it received clear advance assurances of a 'favorable' outcome. For example, Dr. Gary Huber, then of Harvard, solicited industry funds with his view that 'the number of people at potential risk from tobacco consumption is extremely small relative to the very large number of people who now smoke.' Philip Morris and others in industry, including Reynolds, contributed funds to the Sloan Kettering Institute in an attempt to partially muzzle Dr. Ernst Wynder (a prominent tobacco researcher). The industry also funded a project at UCLA Medical School but only after the Medical School reassured the industry that nothing damaging to the industry would be discovered."
The TI and the individual member companies long maintained that TIRC was an independent research group dedicated to getting the real facts about smoking and health. But the Jones and Day document flatly states that the Industry consider TIRC a pure public relations tool, and indeed all projects funded under TIRC had to be approved in advance by the attorneys for the Industry.
For those who still maintain that the tobacco industry was in the dark for decades about the spectacular health dangers of smoking and thus should be forgiven for not warning the public about those dangers in the early l950s the Jones and Day document will be an insurmountable obstacle. The Industry knew and chose to misrepresent and deny the risks. The attorneys currently representing them in litigation know this better than anyone else.
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| Responses:
March 5, 2002 Dear Elizabeth, I challenge your position on the responsibility of smokers versus tobacco companies. Of course, consumers are aware of the dangers of smoking and should know better than to take the risk. But the fact is that people's addictions are not dictated by rational decision-making. Tobacco companies develop their product with this in mind, finding better and better ways to make their cigarettes more addictive. Your editorials suggest that the smoker should accept complete blame for his inability to overcome his addiction. So essentially, you've made the victim the guilty one and granted the perpetrator of the crime immunity. There is no justice in your argument. Sincerely, Robert Grillo March 11, 2002 Dr. Whelan, Whether the tobacco companies knew or didn't know about the risks of cigarette smoking is irrelevant; the general public has long been aware of the danger. Tex Ritter's hit song "Smoke That Cigarette" talked about the health hazards as common knowledge back in the '40s. The terms "coffin nails" (circa WWI) and "cancer sticks," terms used by smokers themselves, are strong evidence of that knowledge. All but the most stupid people alive today have always known that cigarettes can kill you. Any smoker who says he didn't know is lying. So who's responsible for the smoker's cancer? The cigarette industry? Or the people who smoked, knowing full well the risks they were taking and continue to take? Sure, the cigarette companies were selling a dangerous product. But everybody knew it, and nobody was forced to buy it. Stop perpetuating the hypocrisy. Mike LaBrier St. Louis, Missouri Dr. Whelan replies: In reading the responses from Mr. Grillo and Mr. LaBrier, I am aware now of how editorial commentaries related to smoking and health can prompt diverse criticism. Mr. Grillo complains that my editorial blamed individual smokers for the consequences of cigarette smoking, while Mr. LaBrier claims that since everyone "knows" the dangers of smoking, the tobacco industry should bear no responsibility for the health consequences of smoking even if the Industry misrepresented those risks (as the internal memo I cited indicated they did). To Mr. Grillo I must say: I think you misread my piece. Indeed, the whole purpose of my commentary was to document that the Industry withheld critical information on smoking and health, and the Industry's own lawyers confirm this in the document I cited. Surely, then, the Industry should be held accountable for marketing a product they knew caused health havoc while at the same time denying that any link between cigarette smoking and disease had been "proven." Mr. LaBrier's accusations that everyone knows the dangers of smoking are quite familiar to us at ACSH. Four points are relevant here: First, smokers may "know" in the generic sense of the dangers of smoking, but very, very few understand the specifics. I recommend to Mr. LaBrier the ACSH publication Cigarettes: What the Warning Label Doesn't Tell You. The overwhelming majority of smokers have no clue as to the role of smoking in the causation of blindness, impotence, hearing loss, infertility, not to mention a spectrum of malignancies other than lung cancer. Even physicians have acknowledged that the specific risks of smoking are not fully known to them. Second, in addition to not knowing the specific risks, smokers for the last fifty years have not been informed about the "dose" necessary for elevated risk of cigarette-related disease, that is, how much you have to smoke. For decades, commentaries in the media have referred to "heavy smoking" as a risk factor for disease when indeed smokers are at increased risk of myriad maladies from smoking four or more cigarettes a day, and most smokers smoke far more than that daily. Third, smokers and would-be smokers are unaware of the irreversible effects of smoking (see ACSH's publication on Irreversible Effects of Smoking) and the grim reality that a smoker cannot simply return to the health profile of a never-smoker after a decade or more of smoking. The elevated risks remain. Fourth, Mr. LaBrier, in arguing that everyone "knows" the risk of cigarette smoking, appears to want to obscure the reality that smokers almost always begin the habit as children, often under the age of fifteen. Given the addictive nature of cigarette smoking and the frequency of initiation in the teen years, Mr. LaBrier's premise that adults are making informed decisions seems baseless. April 7, 2002 Dr. Whelan: Mike LaBrier writes, "Whether the tobacco companies knew or didn't know about the risks of cigarette smoking is irrelevant; the general public has long been aware..." Can you imagine any other liability situation where the tortfeasor is not held liable just because some people know he's up to some vaguely dangerous activity? Let's say my grandmother kept telling me: be aware of the danger and don't ride roller coasters, youngster. Would that absolve the manufacturer and operator of the duty to warn me if the roller coaster had no seatbelts and a thousand people flew right out of the coaster every day? Tex Williams' (not Ritter's) song was about the addictive nature of nicotine more than of any health hazards. But what if he had sung instead about these dang roller coasters? What if in the song he were dead, having flown off the coaster, but was telling St. Peter, hold on, he wants one more ride? The coaster people would be laughing all the way to the bank. After all, what better advertising for attracting thrill-seeking kids? I did interview Tex Williams once, by the way, for a little country music column I wrote in the 70s, and he was still smoking, which doesn't say much for the "warning" effect of his song. Taylor Caffery, Baton Rouge |
