Influence Of Attorneys Over Public Relations

On November 2, 1985, Anne Johnson, a member of the BAT legal department, wrote a lengthy memo containing a detailed discussion of

what BAT's stance should be with regard to smoking and health {1828.02}. Her memo is labeled an "Attorney Work Product" and is divided into sections titled "Smoking and Health Issues," "Scientific Information," "Reasons for Making Public Statements on Smoking and Health," "Areas for Response," and "Proposed Response." The basic premise of Johnson's memo is that BAT cannot afford to remain silent on issues related to the health effects of tobacco. By remaining silent, the company will be implying that it agrees with claims that its products are hazardous to health. Under the heading "Reasons for Making Public Statements on Smoking and Health," Johnson states:

If we fail to make the facts and our views known on smoking and health, we run the risk of seeing the introduction of more and more restrictions—some unacceptable and unwarranted—on our products, our commercial objectives and our freedom to operate. If we have no statement to make, then we lose credibility with government, and the public (including shareholders and employees).

We have a responsibility—both legal and moral—as a cigarette manufacturer to ensure that people are aware of thefactsrelating to our products, that a factual and balanced picture is presented, and that inaccuracies and imbalance are corrected.

This applies not merely to the BAT Companies, but also to the National Manufacturers Associations in each country. The NMA's are often seen and indeed are set up to be the spokesman for the industry as a whole and, even more than individual companies, are expected by government and other institutions to respond effectively on smoking and health issues. In the case of the N.M.A.s other member companies may wish to take some action or make a response and we need the ability to participate with those companies [italic emphasis added]. {1828.02, p. 4}

Nevertheless, Johnson notes, even discussing causation might be dangerous in view of the ongoing lawsuits in the United States:

Since the New Jersey Law Suits [probably a reference to the Cipollone, Haines, and other cases] and the RJ Reynolds campaign were commenced we have effectively taken no action and made no response in deference to the US legal constraints.

We recognize that there are legal constraints in the US which we must observe and we appreciate the practical problems of discussing causation and in particular the possible impact of causation on the voluntary assumption of risk defence [emphasis added]. {1828.02, p. 6}

This position precluded any objective discussion of the scientific evidence that smoking causes disease; such a conclusion was simply not acceptable on legal grounds.

Johnson is acknowledging that comments made by BAT officials might have an impact on lawsuits against the industry in the United States. She is concerned that the industry's assumption of risk defense, which depends on the plaintiff's knowing the risks of his or her actions, might be endangered if it were to be revealed that the industry actually possessed information about the causes of smoking-related diseases and had not shared that information with the public. In that event smokers, in fact, could not have known the full risks of smoking or, at least, could not have known the extent of those risks. As noted in chapter 7, this defense has been largely responsible for protecting the industry from liability in the wave of lawsuits that began in the mid-1980s. Johnson continues:

We have no wish or intention to "overplay" the causation argument or to mislead consumers (or anyone else) into thinking that smoking is free of risk, or that the risks are minimal, or that they can ignore the potential risks or health warnings.

However for the reasons mentioned above the effective silence which the BAT Companies have maintained over the last few months cannot be sustained.

As science is the basis for the smoking and health arguments, we wish to put third parties in possession of a balanced view of smoking and health issues based on the scientific information set out in the appendix [discussed below]. {1828.02, p. 6}

Thus, although Johnson recommends that BAT not remain silent, she also advises that the company should not take an aggressive stand regarding the health effects of smoking. Instead, the company should provide third parties (presumably, scientists, politicians, the media, and the general public) with a "balanced" view of the issues, a tobacco industry euphemism for making the public believe that there is a controversy as to whether cigarettes are dangerous. The implication here is that BAT should provide third parties with scientific research supporting the position that the causal relationship between smoking and disease has not been proven. As discussed in chapter 8, the industry has funded research through its lawyers that was specifically designed to develop this sort of contradictory scientific evidence.

The memo then provides a general outline of the argument that BAT should make about the health effects of smoking:

There is a lot of evidence which links smoking statistically with certain diseases ...

Statistics alone cannot prove cause and effect ...

Research is needed to clarify the situation. {1828.02, pp. 6–7}

These are the same arguments that the tobacco industry has been making since the 1950s, when it established the Tobacco Industry Research Committee (discussed in chapters 2 and 8). They are also the same arguments that the tobacco industry is using in current discussions over the health effects of environmental tobacco smoke.

The memo ends with an interesting cautionary note:

The views expressed above[,] which incorporate warnings to the consumer, creates [sic ] problems in countries where warnings are not required on packs or advertising and this situation should be reviewed. {1828.02, p. 7}

This afterthought by Johnson suggests that the tobacco industry might be more vulnerable to products liability lawsuits in countries that do not require warning labels on cigarette packages. In the industrialized world, where warning labels are required, the tobacco industry has been protected against claims that it has failed to warn smokers about the health effects of its products. In other countries, however, the industry may have a much harder time proving that it has given smokers adequate warnings.

Johnson's memo contains two appendices. The first, titled "Scientific Information," summarizes the scientific position of Dr. Ray Thornton, the smoking and health adviser at BAT's research center {1828.02, pp. 8–10}. It provides the scientific underpinnings for the tobacco industry's argument that causation has not been proven.

Thornton notes that a large number of epidemiological studies have shown a statistical association between smoking and a variety of diseases, particularly lung cancer. However, he states, it has never been formally established through experimental studies that smoking actually causes these diseases. After listing various other potential causes of cancer, Thornton concludes:

It is therefore impossible to claim as a fact that smoking is the only or main cause of lung cancer and other diseases. On the other hand the views of the medical profession and the judgment they have made cannot be ignored and the reverse has not been established either—it is equally impossible and quite wrong—factually and morally—to suggest or imply that smoking is safe or free from risk or that the risks are not particularly great.

Smoking may be implicated in the inception or development of some diseases—it may not—whether it is and/or the extent to which it is or may be is not known. Other factors appear to be implicated as well.

The theory that smoking has been established as the main cause of lung cancer has become "conventional wisdom" and is accepted both in medical and scientific journals, and in the media generally without question—information is used selectively and other potential causes and evidence which conflict with the "traditional" view may be and often are ignored.

As has been pointed out ... there is risk that the real causes of diseases may be "missed" by ignoring "non traditional" research [emphasis added]. {1828.02, pp. 9–10}

Again, this argument—that the causes of lung cancer and other diseases normally associated with smoking are not really known and that further research is necessary to determine those causes—is the same argument used during the 1950s, when the Tobacco Industry Research Committee was formed. Yet, by the mid-1980s there was universal agreement among scientific and medical authorities around the world that a causal link between smoking and disease had been established conclusively. Also, the suggestion that "non-traditional" research may be needed to discover the "real causes" of diseases is in keeping with the industry's efforts to fund research projects that it knew would be unavailing, for the purpose of distracting scientists and the public from the worthwhile research being conducted (see chapter 8).

The second appendix to the memo is titled "Summary of BAT's Approach to Smoking and Smoking Issues" and is dated May 21, 1984 {1828.02, p. 11}. It appears to provide an explanation for why BAT would produce low-tar cigarettes when it claims that it does not believe the tar produced by smoking is dangerous. The document states that, although there is a statistical association between smoking and disease, "the question of cause continues ... to be a controversy" {1828.02, p. 11}. It then notes that many government agencies and physicians have advised the public to switch to low-tar brands, and that the industry has simply responded by meeting the public demand.

The tobacco industry has responded quickly to this changing demand, and to published government advice, by marketing an expanding range of cigarette products—so that each consumer can make his own informed choice of product. {1828.02, p. 11}

Of course, the consumer is hard pressed to make an "informed choice," since the tobacco industry has not provided the information it had that smoking is dangerous, regardless of the amount of tar in the cigarettes. This behavior is still another example of the industry's trying to have it both ways: maintaining that there are no health dangers in smoking but providing "healthier" cigarettes to those people who are worried about possible dangers.

B&W's lawyers were also involved in setting public relations policy for the company. Some of the issues that particularly concerned them are discussed in a memo from Ernest Pepples, who was then B&W's senior

vice president and general counsel, to E. E. Kohnhorst, vice president of research, development, and engineering (RD&E) at B&W {1831.01}. The memo, dated August 16, 1984, and marked "Privileged," discusses Pepples's concerns over a report titled "The Functional Significance of Smoking in Every Day Life." Pepples states that use of the report for public affairs purposes, either by B&W or by the industry, would be inappropriate and inadvisable.

Even the theme of the report, which promotes the concept of "the psychological benefits of smoking," is not appropriate or advisable as a public affairs position. {1831.01, p. 1}

This concern about promoting "the psychological benefits of smoking" is another indication of just how much the industry's attitudes toward cigarettes had changed since the 1960s, when research on nicotine as a stress reducer was being conducted because of the fear of competition from new tranquilizing drugs (see the discussion of Project Hippo II, in chapter 3). Pepples also voices his concern that some of the authorities cited in the report might not agree with its conclusions.

[N]amely they might maintain that cigarette smoking is a [sic ] not a suitable "coping aid" in everyday life. {1831.01, p. 1}

Unfortunately, we do not have a copy of the report itself, so we do not know which authors Pepples is referring to or what the report actually said.

Pepples then points out "more serious problems" with the report {1831.01, p. 1}. Specifically, it essentially concedes that nicotine is an addictive drug.

In developing and carrying forward the position that a "simple" addiction model cannot explain smoking behavior, the report seems to concede that many potential criteria for addiction identification are met by smoking behavior. For example, the report urges the position that the primary motivation for smoking is ultimately tied to a pharmacological "psychoactive" function of nicotine. Some of the scientists who consult with B&W in connection with health litigation would not agree with this approach. Accordingly, the report presents some potential for an apparent inconsistency among B&W's scientists, which could cause some difficulty in court.

Throughout the report, unfortunate concessions appear regarding "tolerance and withdrawal". ... The report frequently expresses the view that smoking has certain "therapeutic properties" and nicotine is compared to the action of tranquilizers, alcohol, etc. In addition, smoking is referred to as one form of "drug usage", "psychoactive substance abuse", or "psychoactive drug usage".

The authors of the report attempt to draw a fine line between "addiction" and "functional" behavior. ... Our opponents would probably disregard

such a distinction and contend that this was an acceptance by the authors of the report of the basic allegation that cigarette smoking is addictive [emphasis added]. {1831.01, pp. 1–2}

Pepples then discusses the danger to the tobacco industry of admitting that nicotine is addictive. He specifically mentions that such an admission could be used against the industry in court as well as by the Food and Drug Administration (FDA) to justify regulation of tobacco products.

As you know, in the current legislative and litigation environment, claims of addiction have been and will be used against Brown & Williamson and the other companies by our adversaries. Such claims have been vigorously opposed in order not to give a claimant an unjustified weapon to use against the company or the industry.

In addition, the possibility for FDA involvement would be heightened by company or industry promotion of the theme of this report, as it will be generally perceived [emphasis added]. {1831.01, p. 2}

These memos written by attorneys for B&W and BAT clearly indicate that the companies were carefully monitoring their public statements in order to avoid making any claims that could be used against them in court or regulatory actions. The BAT attorney advises the company to maintain that a causal relationship between smoking and disease has not been proven, while the B&W attorney warns the company not to admit the addictiveness of its products. These are the same positions that all the tobacco companies have publicly held. Again the position of the lawyers has changed since the early 1960s, when they were encouraging the companies to develop a "safe" cigarette as the best way to stave off litigation (see chapter 4).

There is an interesting contrast between these two memos, indicating the different approaches to public relations problems in England and the United States, which, in turn, probably reflect the different levels of concern about potential lawsuits. Whereas the BAT attorney focuses on the need for the industry to be more forthright and willing to engage in public discussion of the health issues, the B&W attorney is more concerned about covering up any possibly damaging scientific material. Specifically, Pepples evidently believed that tobacco industry public relations statements must never even cite scientists who disagree with the industry's basic positions on the health issues, even though they may support the specific statements made. To do so would lend credibility to the scientists and thereby undermine the industry's attack on the scientific evidence indicating that there is a link between smoking and disease. (A particularly striking example of this attitude is discussed in the following section.)

The B&W attorney also evidently wanted to impose a rigid uniformity on the scientific opinions expressed by B&W scientists, so that no untoward scientific opinions would come to light and be used against the company in court (also discussed in chapter 7).

The Blackman Paper: Rewriting Scientific Documents

The extent to which lawyers for B&W were concerned about having damaging scientific statements linked to the company is conveyed in a letter dated October 25, 1984, from J. Kendrick Wells, III, B&W's corporate counsel, to H. A. Morini, a lawyer at BAT {1833.01}. The letter contains Wells's comments on a draft paper titled "The Controversy on Smoking and Health—Some Facts and Anomalies," which had been written by Dr. L. C. F. Blackman, executive director of research and development for BAT (figure 9.1) {1833.02}. The paper presents the industry's view on the "controversy" over the health effects of smoking. As it was originally written, the Blackman paper contained a reasonably complete presentation of the evidence that smoking causes disease, and then used quotes from various scientists and scientific reports to support the claim that a causal link between smoking and disease had not been proven. However, as Wells's letter shows, even merely acknowledging the existence of some evidence pointing to such a link was unacceptable.

The title page of the Blackman paper indicates that it contains "Notes on talks given at the BAT Management Centre, Chelwood, by Dr. L. C. F. Blackman" {1833.02}, suggesting that the paper was intended to be a primer for BAT executives on issues related to smoking and health. The introduction states:

This booklet is not a comprehensive review of all the research on the issues, but it sets out some of the reasons for stating that a controversy exists, and gives examples of some of the research reports which are inconsistent with the view that smoking has been proven to be a cause of disease. {1833.02, p. 3}

Wells made comments on virtually every page of Blackman's thirty-three-page paper, some of which are written in the margins of the draft. He also made forth-five detailed comments, including line-by-line recommendations regarding items that he thought should be deleted or included in the final report. These comments were too long to be written in the margins and are instead enumerated in his letter to Morini. Many of the suggested changes involve deletion or reconsideration of scientific authors cited in the paper, usually because the scientists cited had

published work (sometimes not even cited in the paper) that did not support the tobacco industry's position. In other instances Wells suggests that material be rewritten so that it will conform to the company's stated positions, rather than the published scientific evidence.

Wells's comments on the draft paper are prefaced with a cautionary note:

Recent developments have reaffirmed the need for the attention we customarily have given to proposed BAT publications. The smoking and health litigation in the U.S. has demonstrated that plaintiffs' lawyers are aggressive in questioning tobacco CEOs about published company statements, as we had predicted they would be. Peter Taylor's Smoke Ring [1] demonstrated that BAT publications which may be intended for limited distribution can be obtained and scrutinized by our most articulate adversaries. {1833.01, p. 1}

This comment suggests that attorneys for B&W routinely reviewed BAT documents prior to publication, even if they were only intended for "limited distribution" within BAT.

Wells began by changing the titles of some of the chapters (figure 9.1). Some of his revisions appear to have been designed to reinforce the idea that there is a "controversy" over the dangers of smoking. For example, Wells recommended changing the chapter on "Background to the Medical Concern" to "Background to the Scientific Dilemma." Interestingly, Wells also recommended deleting the word "facts" from two of the chapter titles: "Some Facts and Anomalies in the Literature Regarding Cancer" was changed to "Some Anomalies in the Literature Regarding Cancer." A similar change was made in the chapter on heart disease.

Wells seemed particularly interested in removing references to researchers who had published any findings that did not agree with the tobacco industry's position. For example, the original document contained the following quote from Sir Richard Doll and Richard Peto, who conducted one of the first epidemiological studies showing that smoking is associated with lung cancer and heart disease:

To say that these conditions were related to smoking does not necessarily imply that smoking caused (or prevented) them.

The relation may have been secondary in that smoking was associated with some other factor, such as alcohol consumption or a feature of the personality, that caused the disease. {1833.02, p. 8}

In his letter to Morini, Wells suggests that this reference be deleted:

8. Delete Doll and Peto reference. Doll and Peto have published a table which shows "cancer of the lung" is "caused by cigarette smoking" and have

[Full Size]

FIGURE 9.1. Cover and table of contents for the Blackman report {1833.02}, which was based on talks
given at the BAT Management Centre by Dr. L. C. F. Blackman. Note that the editing by the lawyer
J.K. Wells {1833.01} changed "medical concern" to "scientific dilemma," deleted the term "facts,"
and emphasized the use of the term "causality."

[Full Size]

FIGURE 9.1. (continued)

concluded that "much of the excess mortality in cigarette smoking can be attributed with certainty to the habit ..." {1833.01, p. 2}

Later in his comments, Wells notes that any mention of Doll should be handled with care.

35. ... Parenthetically, any reference to Doll must be crafted carefully because he is a dedicated advocate of the causal hypothesis. {1833.01, p. 6}

Wells also recommends deleting a reference to research conducted by Drs. Friberg, Cederloff, and Lundman, who had compared disease rates in smoking and nonsmoking twins. Interestingly, this research had been funded by the tobacco industry for years in an attempt to prove the "constitutional hypothesis." The constitutional hypothesis, which had originally been proposed by Sir Ronald Fisher in 1957, essentially argues that some people are genetically predisposed both to being the type of person who smokes and to developing diseases such as lung cancer and heart disease. Friberg and his colleagues all but disproved the constitutional hypothesis when they showed that a person who smokes is more likely to develop smoking-related diseases than his or her nonsmoking identical twin, even though they have the same genetic makeup and therefore the same genetic predisposition to disease. The Friberg group's work was referred to in the original draft of the Blackman paper in a quote taken from the 1979 Bibliography on Smoking and Health (published by the federal government):

The results from the twins study clearly demonstrate the importance of genetic, behavioural and psychosocial factors which have not been considered in conventional epidemiologic studies. {1833.02, p. 18}

Wells states in his letter that the reference to Friberg, as well as the reference to the bibliography, should be deleted.

21. Recommend delete references to Friberg and the Bibliography on Smoking and Health. Unfortunately, Friberg, Cederloff and Lundman published a monograph in 1977 which stated that "lung cancer is closely related to the amount smoked ...," that associations were confirmed between smoking and respiratory, cardiovascular and other symptoms of disease or ill-health, that there is no doubt about a causal link between smoking and lung cancer, and that the results from the Swedish monozygotic twin studies are contrary to the constitutional hypothesis advanced by Fisher.

The problem carries over into the quote from the Bibliography on Smoking and Health. ... The same article states that "the well documented evidence of a causal association between smoking and lung cancer found in other studies has been further supported." {1833.01, p. 4}

Ironically, the monograph of the Friberg group's work mentioned by Wells was actually funded as a CTR special project (table 8.1).

A quote from Dr. Lawrence Garfinkel, vice president for epidemiology of the American Cancer Society, and an author of one of the early papers on environmental tobacco smoke (ETS) and lung cancer that had produced equivocal results (2), was included in the draft:

Passive smoking may be a political matter, but it is not a main issue in terms of health policy. {1833.02, p. 31}

The tobacco industry had widely used this quote in its efforts to create controversy about the early evidence that ETS causes lung cancer (see chapter 10, particularly figure 10.1 and the associated discussion). Wells, however, notes in his comment that Garfinkel later retracted this statement after his second study on ETS and lung cancer showed an increased risk (3) and criticized the tobacco industry for continuing to use Garfinkel's first study in industry advertising.

40. Delete. Dr. Garfinkel has published a letter in the New York Times (June 5, 1984) which protests R. J. Reynolds' use of the passage quoted in the Draft and states:

It is irresponsible of Reynolds to attempt to create a false sense of security about the potential dangers of passive smoking, especially at a time when incriminating evidence continues to accumulate. {1833.01, p. 7}

Wells left unchanged quotations from an international symposium in Vienna in 1984, which was organized by an individual affiliated with the tobacco industry (4) and exonerated ETS as a cause of disease.

In his letter to Morini, Wells even recommends deleting a short subsection of the paper dealing with chronic obstructive lung disease (COLD). The subsection presented a table from the fourth report of the Royal College of Physicians. The data in the table suggested that COLD might be associated with social class. However, Wells notes,

26. ... The same paragraph in the fourth Report which presents the table reprinted in the Draft states "it must be emphasized that at present only the effects of tobacco are reliably known to be of substantial importance." {1833.01, p. 4}

Table 9.1 (on p. 377) summarizes some of the changes suggested to the Blackman paper. These editorial changes would have effectively removed any reasonable presentation of the then-current state of scientific information from the paper and turned it into a purely public relations piece. Given that the paper was apparently prepared for "limited

distribution" within BAT to review the "smoking and health controversy," it is remarkable that B&W evidently did not want its employees to be presented with arguments contrary to the company position, even when those arguments appeared in a document designed to discredit mainstream scientific opinion.

Science And Public Relations From A Lawyer's Perspective

On June 16, 1981, in response to a request from Ernest Pepples, William Shinn, an attorney at Shook, Hardy, and Bacon, sent a "Confidential Memorandum" to Pepples, listing various events in the area of smoking and health over the past few years and categorizing them as either "plus" or "minus" items {2130.02}. Two days later, Pepples sent the same material, essentially verbatim over his own signature, with the list of items reformatted, in a "Privileged Memorandum" to C. I. McCarty, BATUS's chairman and chief operating officer, with a copy to Dr. I. W. Hughes, B&W's chairman and CEO {2130.01}. The complete text of the memorandum follows:

The following list of what I am calling "plus" and "minus" items is certainly not complete (nor in any particular order) but should be illustrative of smoking and health "events" over the past few years, sometimes having a great deal of coverage and sometimes not. I know you asked for "science" only but I have included a few other items for completeness. The designation of "plus" in some cases should probably read "mixed".

Many of the "positive" scientific developments involved publications by individuals who were being quietly supported by the tobacco industry (e.g., Seltzer, Sterling, Gori, Huber, Eysenck; see chapter 8). In addition to providing an insight into the wide range of issues facing the industry at the time, this memorandum once again demonstrates the extent to which the lawyers were dominating B&W's corporate affairs. As the memorandum indicates, the original request for information was for "'science' only," and yet the information was sought from an attorney rather than a scientist. Of course, there was a good reason for this: as discussed in chapter 8, the lawyers were directing much of the scientific research, and Shinn was one of the principal actors in that endeavor. Again, even assuming a scientist should not have compiled such a list, one might expect that a public relations person would have done so, but then the lawyers were pretty much in charge of that aspect of the business as well. One item in the list stands out as an example of the inconsistency that exists between the tobacco industry's internal and public pronouncements on smoking issues. Despite the consistent claims by the industry that it does not advertise to attract children and that it believes smoking is an adult custom that children should not adopt, the memorandum lists a congressional bill, which included a program to deter children from smoking, as a "minus."