Reactions By Bat And B&W

As we discuss in chapters 4 and 5, BAT responded to the RCP report with what appears to be a genuine desire to identify and remove any

harmful elements in cigarette smoke. There also appears to have been a spirit of cooperation between different cigarette manufacturers in the United Kingdom, and the British companies stated that they would share any information that would help produce a "safe" cigarette.

The response was quite different in the United States. Even before the US Surgeon General's 1964 report was released, B&W's public relations personnel and its lawyers were discussing how the company and the industry should respond. Despite public commitments to participate openly in the debate over the "smoking and health controversy," as pledged in the "Frank Statement" a decade earlier, B&W and BAT withheld important research findings on nicotine addiction from the Surgeon General's Advisory Committee, which had requested that the industry provide its relevant research. As described in the memos that follow and in chapter 3, B&W appears to have been motivated primarily by a desire to protect itself against regulation and litigation while maintaining its bottom line.

A "Grave Crisis": B&W's Public Relations

The level of concern that the Surgeon General's report aroused in the industry's public relations departments is indicated in a report from John V. Blalock, director of public relations for B&W, to J. W. Burgard of B&W's Marketing Department {1902.01}. A copy of this report was also delivered to B&W's president, E. P. Finch. The report is dated June 18, 1963, six months before the Surgeon General's report was actually released.

In this report Blalock discusses meetings he held with various representatives from the Tobacco Institute, the Tobacco Industry Research Committee, and the public relations firm of Hill and Knowlton regarding how the industry as a whole should respond to the Surgeon General's report.

The consensus is that the industry is in a "grave crisis," and the philosophy is "to expect the worst and work for the best." Of course the greatest cause for alarm is the forthcoming Surgeon General's report, which is expected to be detrimental to the industry. The only degree of hope is the possibility that, instead of singling out tobacco per se , the report will take into account a list of other agents (environmental and otherwise) which are suspect. However, this is deemed a rather dim hope, because indications point to a strong indictment of tobacco, with possible "root-shaking" consequences. {1902.01, pp. 1–2}

Blalock speaks of "an unmistakable note of pessimism" throughout these discussions {1902.01, p. 2} because of the threat of "mounting organized opposition" against tobacco. Those who attended these meetings were particularly fearful that extensive press coverage of anti-smoking reports being issued by organizations such as the American Cancer Society and the American Heart Association would convince the public to accept whatever was said in the Surgeon General's report {1902.01, p.2}.

Blalock also states that he expects the Surgeon General's report to consist of two phases. First, the Surgeon General will probably release his scientific findings based on a review of the data. Blalock recommends that public relations during this phase be handled by TIRC, which could provide tobacco industry–generated data, with guidance from H&K {1902.01, p. 2}. The second phase will consist of a recommendation for legislative or government action, such as labeling, stricter regulation of advertising, or regulation by the Food and Drug Administration. This phase, Blalock advises, should be handled by the Tobacco Institute, also with guidance from H&K {1902.01, p. 2}.

Apparently, however, neither of these organizations felt prepared to handle the situation that was about to confront them.

[There are] feelings of frustration, inadequacy, and fear that exist among those engaged in representing the tobacco industry on an organized front. However, perhaps this is more healthy than it would seem at first blush. At least these people want to do something in the face of mounting opposition. They want direction—an opportunity to take effective measures in the interest of the industry. {1902.01, p. 3}

Blalock also discusses the reasons for the industry's current state of underpreparedness. He points to a lack of cooperation among the tobacco companies in developing a public relations strategy and notes that the industry's public relations strategy has been affected by legal concerns, and that it would be unwise to assure the public that cigarettes were not dangerous to health.

Litigations, of course, have vastly affected the Public Relations posture—and understandably so. Certainly, no one can quarrel with the urgent necessity of complying with the lawyers' position in regard to assumption of risk. It would be foolhardy indeed to take a form of "aggressive" action which implies assurances, denial of harm, and similar claims [emphasis added]. {1902.01, pp. 3–4}

Blalock concludes his report by reiterating that the industry does not have a plan of action and by recommending that strong leadership will be needed to steer the industry through the crisis.

[T]he great specter of the Surgeon General's Report looms before us, and the inescapable fact remains that the industry, at the moment, does not have a definite plan of action or reaction. There is talk of possibilities—the first step in planning. Yet the disturbing element is that no one seems disposed to suggest measures for meeting these possibilities. Everyone admits to a "wait-and-see" attitude, but this is without individual endorsement. Invariably, the burden of inaction is placed on "a lack of direction" and the need for "policy decisions."

I would suggest that the time is most propitious for leadership in shoring up industry organization and planning. Such leadership should be applied on all levels of participation—Executive, Legal, Trade, and Public Relations. I see Brown & Williamson as having both this opportunity and obligation. {1902.01, p.4}

The Blalock report indicates that tobacco companies in the United States felt that the release of the 1964 Surgeon General's report on smoking and health would dramatically alter public perception of their product and would probably lead to government regulation of tobacco. The industry's public relations departments were unsure how they should respond to the report and were scrambling to develop a new strategy that would maintain public acceptance of tobacco while minimizing the potential for lawsuits.

"An Aggressive Posture": B&W's Legal Department

Just as the tobacco industry's public relations personnel were struggling to develop a strategy for responding to the Surgeon General's report, industry lawyers were analyzing its legal implications—specifically, how to ward off potential lawsuits accusing the tobacco companies of failing to warn consumers about the dangers of smoking once the Surgeon General had issued a statement stating that cigarettes were dangerous to health.

One of the documents {1802.05} describes a strategy proposed by Addison Yeaman, who was B&W's vice president and general counsel at the time. Yeaman's main suggestion is that the industry should engage in a massive program of scientific research to identify and remove any carcinogens present in tobacco smoke. Yeaman begins by stating that his comments are based on an assumption that the Surgeon General's report will conclude that there is a link between smoking and cancer. He recommends that the industry respond by financing an elaborate research campaign to make cigarettes less harmful. While making this suggestion, however, he implies that he believes cigarettes are, in fact, harmful to health.

We must, I think, recognize that in defense of the industry and in preservation of its present earnings position, the industry must either a) disprove the theory of causal relationship or b) discover the carcinogen or carcinogens, cocarcinogens, or whatever, and demonstrate our ability to remove or neutralize them. This means that we must embark—in whatever form of organization—on massive and impressively financed research into the etiology of cancer as it relates to the use of tobacco. ... Certainly one would hope to prove there is no etiological factor in smoke but the odds are greatly against success in that effort. At the best, the probabilities are that some combination of constituents of smoke will be found conducive to the onset of cancer or to create an environment in which cancer is more likely to occur [emphasis added]. {1802.05, p. 1}

Yeaman then explains why the Tobacco Industry Research Committee (TIRC), which had ostensibly been created by the industry to fund research into the health effects of smoking, would not be appropriate for the type of research program he is proposing.

[TIRC] was conceived as a public relations gesture and (however undefiled the Scientific Advisory Board and its grants may be) it has functioned as a public relations operation. ... I suggest that for the new research effort we enlist the cooperation of the Surgeon General, the Public Health Service, the American Cancer Society, the American Heart Association, American Medical Association and any and all other responsible health agencies or medical or scientific associations concerned with the question of tobacco and health. The new effort should be conducted by a new organization lavishly financed, autonomous, self-perpetuating, and uncontrolled save that its efforts be confined to the single problem of the relation of tobacco to human health [emphasis added]. {1802.05, p. 2}

At first glance, Yeaman's statements appear to be motivated by a genuine desire to develop a "safe" cigarette. He later makes clear, however, that a motivation behind this proposal is to allow the industry to be more vocal in its attacks on scientific research suggesting a causal link between smoking and disease.

[To engage in the proposed research campaign] would, I suggest, free the industry to take a much more aggressive posture to meet attack. It would in particular free the industry to attack the Surgeon General's Report itself by pointing out its gaps and omissions, its reliance on statistics, its lack of clinical evidence, etc., etc. True we might worsen our situation in litigation, but that I would risk in contemplation of the greater benefits to be derived from going on the offensive. {1802.05, p. 2}

Yeaman is saying that B&W can both do good and do well: develop a safe cigarette to meet critics on positive turf.

This new offensive strike, Yeaman argues, should be carried out by a stronger and more aggressive Tobacco Institute in response to any regulation that might be imposed following release of the Surgeon General's report—for instance, stricter regulation of advertising and requirements for warning labels or content labels.

To meet these threats, which will arise not merely at the Federal but at the state level as well, the Tobacco Institute is available but it can be effective only if the industry abandons its timorous approach to the Institute as a functioning trade association. {1802.05, p. 3}

Furthermore, Yeaman recommends that the industry voluntarily agree to use warning labels on its products in order to protect itself from future litigation.

The question immediately arises: how would such aggressive posture affect litigation? With one exception (Green v. American Tobacco Co.) those actions which have gone to judgement were won by the defendants on the defense of assumption of risk. The issuance of the Surgeon General's Report will, in my opinion, insure the success of that defense as to causes of action arising in the future if the industry can steel itself to issuing a warning . I have no wish to be tarred and feathered, but I would suggest that the industry might serve itself on several fronts if it voluntarily adopted a package legend such as "excessive use of this product may be injurious to health of susceptible persons " and would embody such a legend in pica in its print advertising. This is so controversial a suggestion—indeed shocking—that I would rather not try to anticipate the arguments against it in this note but reserve my defense [italic emphasis added]. {1802.05, p. 3}

Yeaman continues his memo by reviewing the likely conclusions of the Surgeon General's report and by reflecting further on how the industry should respond.

But cigarettes—we will assume the Surgeon General's Committee to say—despite the beneficent effect of nicotine, have certain unattractive side effects:

We challenge those charges and we have assumed our obligation to determine their truth or falsity by creating the new Tobacco Research Foundation [the hypothetical new research agency]. In the meantime (we say) here is our triple, or quadruple or quintuple filter, capable of removing whatever constituent of smoke is currently suspect while delivering full flavor—and incidentally—a nice jolt of nicotine. And if we are the first to be able to make and sustain that claim, what price Kent? [italic emphasis added]. {1802.05, pp. 4–5}

Yeaman concludes by stating that, if B&W were able to develop a "safe" cigarette, it would be morally obliged to make that knowledge available to other companies. However, he adds, the most important thing is that "we get there firstest with the mostest" {1802.05, p. 5}.

The notion that tobacco companies should engage in certain types of research for legal or political reasons is echoed in another document from the same era. This letter, dated January 2, 1964, and addressed to B&W's president, is marked "private and confidential." Unfortunately, the signature at the end is illegible. However, the return address is BAT's Millbank office, and the contents of the letter suggest that it was written by someone fairly high up in BAT's corporate structure, because it recommends that B&W consider conducting biological tests in case the company is called to testify about the health effects of its products.

We have been coming to the view that Brown & Williamson, and possibly other Companies in the [BAT] Group, should pay more direct attention to biological tests. We have been fortified in this view by the recent visit of Mr. [Ed] Jacob [of the law firm Jacob and Medinger] who referred to the possibility of a Congressional enquiry at which various cigarette companies might be called upon to testify as to the real efficacy of their filters and the methods by which such efficacy has (or has not) been established. . . .

I suggest that in view of the repeated Industry statements that more research is needed and is being undertaken, and with an eye to a possible Congressional enquiry, you might have more to gain than to lose. {1804.01, p. 1}

These tests would demonstrate that the companies are doing everything they can to provide a "safer" product to their customers.

Of course this whole question of biological testing is a very difficult one and in the present state of ignorance of the real causes of cancer and other diseases allegedly connected with smoking (a state which may continue for a long time) any work undertaken must be with a commercial or political motive as well as a scientific motive . In other words, we should like to be able to say that certain of our cigarettes provide smoke in which certain suspect ingredients have been diminished, and that the smoke from these cigarettes has been scientifically proved to produce less change than other cigarettes on animal tissues. From this would follow the conclusion that in the light of all available knowledge, the Company is doing its best to supply a 'safer' smoke [emphasis added]. {1804.01, pp. 1–2}

Although B&W's lawyers initially supported research efforts to develop a safe cigarette and to study the carcinogenicity of their products in biological tests, they later changed their philosophy and strongly urged

the company not to engage in any research that could produce damaging results.