Lawyer Concerns Over Additives

From a legal standpoint, the tobacco industry has had good reason to be concerned about the potential hazards of additives. While it is one thing, in terms of products liability, to provide an essentially "natural" product to a consumer, it is quite another thing to alter that product by adding dangerous chemicals to it. For example, one might compare the difference between cigarettes without additives and those with additives to the difference between an apple that naturally contains arsenic in the core and an apple that has also been sprayed with DDT. The industry has generally defended products liability suits on an "assumption of risk" theory; that is, the smoker knew that cigarettes might be dangerous and assumed that risk in deciding to smoke. With the advent of the cigarette warning labels in 1965, this defense became even more formidable, because juries (who were unaware of the addictive nature of cigarettes) refused to believe that smokers did not know the risks they were encountering. However, those juries might have taken a different view if they had been told that the cigarettes smoked by the plaintiff were not merely made of cut, blended tobacco, but, in fact, contained numerous harmful additives that presented health dangers in and of themselves. There is also, when one considers potential health risks, a difference between an additive in its original state and an additive when burned in a cigarette. An additive that might be totally benign from a human health standpoint when in its original state might, nevertheless, be a serious health hazard when burned in a cigarette in combination with hundreds of other chemicals. Thus, even if the manufacturer of an additive had conducted sufficient testing to ensure its safety, a tobacco company us-

ing the additive in its cigarettes was still faced with the problem of determining the safety of the additive when burned in a cigarette.

Attorneys at B&W actively worked to keep abreast of the latest research dealing with cigarette additives. On December 26, 1978, Ernest Pepples sent a memo {1822.01} to Dr. J. G. Esterle, referring to an attached report (not in the documents) by the National Cancer Institute (NCI) on its bioassay of dl-Menthol for possible carcinogenicity and an attached list (also not in the documents) of chemicals being tested for carcinogenicity in the NCI program. Pepples asked, "When you have had a chance to look over the list please give me a call." Whether or not Esterle phoned Pepples, he did send him a reply memo on January 8, 1979, enclosing "a listing of chemicals which are included in the list of chemicals being tested for carcinogenicity in the NCI program and which are known or we consider likely to be present in cigarette additives" {1822.03}. Two days later, Pepples sent a letter to Fred Panzer at the Tobacco Institute asking him to "track" progress NCI had made in testing the very list of chemicals that Esterle had sent along to him {1822.02}. The list consisted of:

Chemicals Which Are Currently Used
     Benzyl acetate
     Cinnamaldehyde
     Eugenol
     D Limonene
     Safrole (mace)
     Titanium dioxide (filter tow, paper)

Chemicals Which May Be Present in Current Additives
     Allyl isovalerate
     Benzyl alcohol
     2,6 di t Butyl p cresol
     Cinnamyl Anthranilate
     Furfuryl alcohol
     Geranyl acetate
     Gums
     Isophorone
     a Methyl benzyl alcohol
     Propyl gallate
     Pyridine {1822.04}

Among the chemicals listed as being currently used, only cinnamaldehyde was named by the cigarette industry as an additive to

tobacco in 1994 (2). Titanium dioxide is still used as a whitening agent for cellulose acetate filter tow, but it is not added to tobacco.