Chapter 8
Lawyer Management of Scientific Research

[T]hese tests [on inducing cancer in mice with tobacco tar] are so-called red light tests. They have been developed for use by FDA and other agencies in possibly identifying harmful ingredients and substances in products which are available to the consuming public. ... I do not have to tell you what Senator Kennedy would do with a finding by a CTR [Council for Tobacco Research] grantee of red lights in one of these tests as it applies to cigarette smoke fractions. We would never be able to explain that we were only replicating or confirming some other person's work. No matter what our explanation happened to be the fact of the red light in our own hands would be a serious burden to the tobacco industry if it came out in legislative hearings or in litigation.
Ernest Pepples, B&W vice president (law), 1977 {1817.02, p. 1}

Introduction

In contrast to the industry's internal research program (discussed in chapters 3 and 4), which was driven—at least at first—by scientific concerns, the industry's external research program was driven by the threats of adverse publicity and litigation. This chapter details the involvement of tobacco industry lawyers in the industry's external scientific research programs. These lawyers encouraged scientific research to refute the scientific evidence about tobacco, to perpetuate controversy about the health effects of tobacco, and to provide results that could be used to respond to adverse publicity. To this end, the lawyers selected topics for research and manipulated the publication of research results through funding mechanisms run by lawyers rather than scientists.

Projects Run By Lawyers: An Overview

Tobacco industry lawyers were involved in several different types of projects. In general, these projects differed in their source of funding and in whether they supported original research or other non-research consultant activities.

CTR Special Projects: These research projects were funded by CTR and did not go through peer review by the independent group of scientists known as the Scientific Advisory Board {1001.01, p. 31}. Instead, CTR special projects discussed in the documents were selected for funding by tobacco industry lawyers.

Law Firm Accounts: These research projects were funded directly by law firms and selected for funding by the lawyers in the firm. "Special Account 4" was administered by Jacob and Medinger. Little is known about "Special Account 5," except for general descriptive information about the projects that were funded through the account.

Consultancies: In addition to funding research projects, lawyers also funded "consultancies," primarily through Special Account 4 but also through CTR special projects as well as directly by the tobacco companies. Consultancies were established for specific tasks (e.g., preparation of expert scientific testimony for a congressional hearing) or for ongoing tasks (e.g., a scientist "on call" to attend scientific meetings or review the scientific literature).

Tobacco Company Projects: These research projects were funded directly by the tobacco companies, sometimes individually by Brown and Williamson and sometimes by pooled contributions from several companies. Grantees were selected by tobacco company executives and lawyers. Projects funded directly by tobacco companies included relatively large and unrestricted grants to universities. Some of these university special projects were not related to tobacco, but were used to support general research.

Between 1972 and 1991, CTR awarded at least $14,636,918 in special project funding. Table 8.1 (on p. 328) contains a list of the CTR special projects, as well as the other types of special projects run by lawyers.

CTR Special Projects

As described in chapter 2, the tobacco industry has always maintained that the Council for Tobacco Research (and the Tobacco Industry Research

Committee before it) is an independent organization and that its research projects are awarded following peer review by the Scientific Advisory Board (SAB). The documents show, however, that many of CTR's projects were awarded through a special mechanism. Beginning in 1966, shortly after release of the first Surgeon General's report on smoking and health, in 1964, CTR began to fund "special projects" {1000.01, p. 13}. These special projects were awarded by tobacco industry lawyers, rather than the Scientific Advisory Board, and their primary purpose was to produce research that could be used to defend the industry in court or legislative arenas. The money for the CTR, including special projects, came from pooled contributions directly from the tobacco companies according to market share (see chapter 2).

CTR special projects were sometimes used to fund projects that did not get approved through CTR's traditional peer review process but were still desirable to industry lawyers. This arrangement is described in the minutes of a meeting of the general counsels for the six tobacco companies that funded the projects. The meeting was held on December 17, 1965, and the minutes discuss seven projects recommended by the Ad Hoc Committee for immediate implementation. (The precise functions of the general counsels and the Ad Hoc Committee are not known, but they appear to have been groups of industry lawyers and executives, respectively.) The minutes report the following action on one project: "To be submitted to SAB, CTR; if not approved, the project will be carried out by CTR under its 'special projects'" {2000.04, p. 1}. Thus, if this project could not meet the criteria for funding established by the Scientific Advisory Board, it would still be funded by CTR as a special project based on approval by the tobacco company lawyers.

The type of work conducted through CTR special projects awarded to three investigators—Henry Rothschild, Carl Seltzer, and Theodor Sterling—is described in detail below. As the documents show, these three sets of projects were designed to dispute the scientific findings about the adverse effects of tobacco and to produce research that shifted attention away from tobacco as a cause of disease. These three individuals, as well as many others funded through CTR special projects, also received funding directly through law firm accounts (see table 8.1}, as described in the next section. We discuss these three CTR special projects in depth because they were funded over extended periods of time, they were awarded large amounts of money, and they are mentioned often and in great detail in the documents.

Special Projects Awarded To Henry Rothschild

Henry Rothschild, M.D., Ph.D., has been a professor of medicine at Louisiana State University, New Orleans, since 1972. Between 1977 and 1988 Dr. Rothschild was awarded grants of approximately $250,000 to conduct research on the role of genetics in the causation of cancer (table 8.1). In 1976 Henry Rothschild wrote a letter addressed to "Dear Mister" and sent it to B&W suggesting that his research implicating factors other than tobacco smoke in the causation of lung cancer would be of interest to the tobacco industry {2009.19}. Subsequent correspondence indicates that the tobacco companies were interested in Dr. Rothschild's work and began funding him through CTR special projects in 1977. A 1977 memo from lawyer Timothy Finnegan (at Jacob, Medinger, and Finnegan) to William Shinn (at Shook, Hardy, and Bacon) recommends that Dr. Rothschild be funded to conduct a pilot study "to explore the possibility that peculiar genetic and environmental factors are responsible for this unusual lung cancer pattern [in Louisiana]" {2009.15, p. 1}.

In his progress report about the work conducted in 1977, Dr. Rothschild asks for continued support and states that his work has shown that autopsy and lung biopsy are confirmed in only about 20 percent of deceased patients {2008.04, p. 1}. This finding would be important to the tobacco industry because the industry argues that lung cancer is diagnosed more often than it actually occurs (1). Rothschild also notes that his data will be useful to the industry because "it will allow us to raise several interesting questions concerning the validity of many epidemiologic studies based on Mason and McKay's data" {2008.04, p. 2}.

A 1982 memo from Timothy Finnegan to the counsels for the tobacco companies recommends that Dr. Rothschild be funded through a CTR special project to continue his work related to the genetic aspects of cancer {2015.02}. The 1982–83 funding enabled Dr. Rothschild to complete his work on the association between sugar cane farming and lung cancer. This work did not relate to genetic aspects of cancer, but it supported the tobacco industry's position that environmental factors other than tobacco cause lung cancer. In 1983 Timothy Finnegan again recommended renewing Rothschild's funding for another year to "discover possible genetic markers associated with lung cancers" {2034.02, p. 2}. Rothschild's work was useful to the tobacco industry because it suggested that environmental and genetic factors are associated with lung cancer, thereby shifting attention away from the health dangers of smoking.

The documents contain an example of how Rothschild's work was used by the tobacco industry. First, the work was used for congressional testimony. In the "Statement of Henry Rothschild, M.D., Ph.D. in response to S.772, the 'Smoking Prevention Health and Education Act of 1983'" (cited by Finnegan as a reason for funding Rothschild), Rothschild said that his work "indicates that genetic factors may play a significant role in this excess mortality from lung cancer" and "If we can isolate such genetic markers, it will be a major step toward unraveling another aspect in the mystery of lung cancer causation" {2034.03, pp. 1, 6}.

The documents on Rothschild show that he kept tobacco company lawyers informed about his work, even offering to let them review scientific manuscripts before the manuscripts were submitted for publication. In an April 17, 1979, letter, for example, Dr. Rothschild asks Timothy Finnegan to review a scientific paper:

Enclosed is a summary of our accomplishments during the past year. A copy of our proposal for the coming year, including the budget, and a preprint of a next to final copy of the paper we would like to submit to the New England Journal of Medicine is also enclosed. (I say the penultimate copy because I await your comments prior to submission ) [emphasis added]. {2034.18}

The paper in question never appeared in the New England Journal of Medicine; the documents do not indicate why. The document demonstrates that a tobacco company lawyer was involved in commenting on a scientific paper before its publication.

In 1979 Rothschild published an article entitled "The Bandwagons of Medicine" (2) in the scientific journal Perspectives in Biology and Medicine . The article's basic premise is that physicians "jump on the bandwagon" of whatever therapies are popular and use these therapies even though there is little scientific evidence of their validity. The article criticizes the overwhelming acceptance of unproven but popular ideas—"the bandwagons of medicine." Historical bandwagons cited in the paper include leeches, homeopathy, tonsillectomy, and anticoagulants. When the article was submitted for publication, it contained the sentence:

Exercise, vitamins, high fiber diet, and the complete elimination of cigarettes are all rapidly gaining acceptance among physicians, though at present time there is no definitive evidence to support their value [emphasis added]. {2009.06, p. 13}

Deletion of the phrase referring to cigarettes was suggested by one of the peer reviewers who read the article for the journal that published it. In

the published article the phrase "and the complete elimination of cigarettes" was deleted (2). The editor's acceptance letter stated:

We will be pleased to publish "The Bandwagons of Medicine". The reviewers and I have only one strong suggestion. We are convinced that it would be wise to eliminate the comment on cigarettes (p. 13). Since smoking is known to be harmful, your qualification 'complete elimination' will not be carefully noted [emphasis added]. {2009.07}

Rothschild apparently sent the manuscript and the editor's comments to Timothy Finnegan, who, in turn, circulated the editor's acceptance letter and page proofs of the article to the counsels for the tobacco companies. Finnegan evidently believed that the statement about cigarettes was an important part of the paper, even though the reference to cigarettes was the only one in the seventeen-page paper.

Of particular interest is the reviewer's comment about 'complete elimination of cigarettes' on page 13 of the manuscript, which makes the point of the paper [emphasis added]. {2009.05}

Thus, the documents reveal that Rothschild cooperated closely with the lawyers in allowing opportunity for editorial input and in reporting on professional editing that affected references to tobacco in Rothschild's work submitted to scientific journals on scientific subjects and that lawyers at the highest levels followed Rothschild's work closely.

CTR Special Projects Awarded To Carl Seltzer

Carl Seltzer was a professor of public health at Harvard University until 1976. He conducted research related to the constitutional and genetic hypothesis favored by the industry. Specifically, Seltzer's work focused on countering the evidence that smoking causes heart disease. Like Rothschild's work, Seltzer's work could be used by the tobacco industry to divert attention from tobacco as a cause of disease.

When Seltzer retired from the Harvard University School of Public Health on June 30, 1976, he continued his research on "constitution and disease" at the Peabody Museum at Harvard. The Peabody Museum is a natural history museum, which is an odd place to do tobacco and health research. Nevertheless, during his retirement Seltzer was awarded grants of more than $750,000 from 1976 to 1990 through CTR special projects and Special Account 4 (table 8.1). A 1976 letter from Donald Hoel of Shook, Hardy, and Bacon describes the arrangements made with Dr. Seltzer and the Peabody:

Dr. Stephen Williams, Director of the Peabody Museum, has indicated that appropriate arrangements can be made. Such arrangements would be quite similar to those previously maintained at the Harvard University, School of Public Health. The total cost for one year's support from July 1, 1976, through June 30, 1977, would be $50,000. This sum includes a 15 percent "overhead" allocation to the Peabody Museum. Dr. Seltzer's salary, secretarial assistance, purchase or leasing of certain equipment, telephone service, etc., would be paid from the balance of these funds. {2004.01}

An April 4, 1979, memo from Hoel to the counsels for the tobacco companies approved an increase in Dr. Seltzer's annual grant from $60,000 to $70,000 to cover, in part, "increased travel expense for lectures" {2004.09}. As described below, Seltzer traveled extensively to speak about his work and stimulate controversy about the association between tobacco and heart disease.

A 1979 letter from Donald Hoel to the counsels of the tobacco companies describes a trip that Carl Seltzer made to New Zealand and Australia

[to] meet with scientists, science writers and some industry people concerning his research and opinions on smoking and heart disease. ... Personal reports from colleagues in Australia and New Zealand indicate that Dr. Seltzer's visit "was a great success." {2004.12}

Eight news clippings and radio transcripts covering Seltzer's visit are attached to the letter. The clippings—with titles such as "Smokers—Take Heart," "Doctor Slams Link between Smoking and Heart Disease," and "Smoking Does Not Cause Heart Disease"—describe Seltzer as a doctor from Harvard University. Only one small clipping discloses that Seltzer was "in Australia at the Tobacco Institute's invitation" {2004.13}. This type of press coverage that is favorable to the tobacco industry is significant because it demonstrates how the industry was quietly paying for scientists to publicize its position that tobacco is not dangerous. Scientists such as Seltzer, who were well-known researchers or had connections to prestigious institutions, lent a patina of legitimacy to the industry's claims that tobacco is not harmful. Seltzer was valuable to the tobacco industry, in part, because it could exploit his connection with Harvard University in press coverage.

Seltzer criticized scientific studies that found an association between tobacco and adverse health effects, and his efforts were monitored by the lawyers. An April 4, 1983, letter from Patrick Sirridge of Shook, Hardy, and Bacon to the counsels for the tobacco companies describes

Seltzer's activities—especially his analysis of a landmark study that found an association between smoking and heart disease (3, 4).

Dr. Seltzer has been very active in the past year analyzing literature dealing with coronary heart disease (CHD) and advancing his views on the smoking and CHD issue. In particular, he spent a great deal of time reviewing the results of the Multiple Risk Factor Intervention Trial (MRFIT). In this regard, the Journal of the American Medical Association [which published the MRFIT study] recently published his letter [5] commenting on the MRFIT findings. Dr. Seltzer also presented his views about smoking and CHD and MRFIT in a written statement to the Waxman Subcommittee. {2004.21, p. 1}

A 1984 memo from Ernest Pepples to I. W. Hughes, J. Alar, and T. Humber illustrates that researchers funded through special projects were asked to respond to data presented in the lay media as well as in the scientific literature. Seltzer was asked to respond to unfavorable press on tobacco that was aired on the MacNeil/Lehrer television news program. The memo states:

At B&W's request through Horace Kornegay [chairman of the Tobacco Institute], Carl Seltzer wrote the attached letter to Robin MacNeil taking issue with Dr. Castelli's [an investigator in the Framingham study] comments on the January 11 MacNeil/Lehrer program. My guess is MacNeil will send it to Castelli for rebuttal or he will just chuck it in the waste can. {2004.23}

Carl Seltzer's two-page letter to Robin MacNeil, dated January 31, 1984, states:

I found some of Dr. Castelli's statements relative to smoking and heart disease to be biased, flawed, and inaccurate. {2004.25, p. 1}

Seltzer's letter critizes the Framingham heart study, which evidently had been discussed in the interview. This study, the largest population-based study of heart disease epidemiology, had found that smoking is a cause of heart disease (6, 7). In an hominem attack on the scientist rather than the science, Seltzer claims that Castelli deliberately misled the "American public":

I merely wanted you to get some idea of deliberate inaccuracies in the Castelli statements to you and the public, and in the flaws in the works of the Public Health Service's Framingham Study. {2004.25, p. 2}

In the letter to MacNeil, Seltzer devotes a paragraph to describing his own qualifications in an effort to establish that he is a credible, independent scientist. Seltzer does not state that his work has been supported

by the tobacco industry during these years, nor does he mention that B&W's lawyers asked him to write the letter to MacNeil.

CTR Special Projects Awarded To Theodor Sterling

Theodor Sterling is a university research professor at Simon Fraser University in Burnaby, British Columbia. In addition to receiving money through the university, Dr. Sterling also formed a private consulting firm that received funding through CTR special projects. Between 1973 and 1990 CTR special projects provided over $5 million to support Sterling's work, with additional funding through Special Account 4 (table 8.1). The focus of Dr. Sterling's tobacco research has been on examining factors that could potentially confound the association of tobacco smoke and adverse health effects. For example, he has studied the influence of occupational hazards and genetics on lung cancer. This work has been useful to advance the "constitutional hypothesis" of disease (i.e., that cancer is caused by genetic makeup, not smoking) favored by the tobacco industry and provides a distraction from the evidence on the adverse health effects of tobacco.

Documents from tobacco industry lawyers reveal that Dr. Sterling's work became increasingly important to the industry over time because it was used to dispute scientific findings about the adverse effects of tobacco. Dr. Sterling's long history of funding by the tobacco industry illustrates the scientific issues that were important to the industry at different times.

A February 27, 1980, letter {2020.06} from William Shinn of Shook, Hardy, and Bacon to the general counsels of the tobacco companies describes the way in which Sterling was funded both through the university and through his consulting firm, the range of his funded activities, the tobacco industry's use of his work, and the lack of a competitive review procedure to receive continued funding. The projects funded in 1979–80 were directed at refuting the evidence that environmental tobacco smoke is dangerous (see chapter 10). Dr. Sterling's projects were designed to critique published work on environmental tobacco smoke and to draw attention to occupational and other lifestyle factors that might confound an association between environmental tobacco smoke and disease. As described in the lawyer's memo, Dr. Sterling's work was presented at congressional hearings, at scientific meetings, and in scientific publications to support the industry's position that exposure to environmental tobacco smoke should not be regulated.

Dr. Sterling is presently quite busy in at least nine areas. These include: preparation of a review of health effects due to indoor combustion of organic material requested by the National Academy of Sciences; preparation of a paper to present to the American Lung Association on the possible relationship between occupation, smoking and lung disease; completion of work on familial disease among women whose husbands are exposed to irritating dust and fumes; an investigation of the change in employment patterns of women since the 1930's; a study of smoking habits and employment patterns among blacks; completion of an analysis of errors in the [Harold E.] Dorn/[Harold A.] Kahn Study [a study of smoking and mortality among US veterans]; analysis of the use of magnetic techniques to measure long-term lung clearance of particles in smokers and nonsmokers; and an examination of preliminary data from a study of indoor pollutants from gas stoves.

Dr. Sterling has continued to be helpful in frequent consultations about the smoking and health controversy. He testified at Congressional hearings on public smoking in October, 1978; has given several technical papers at professional meetings recently; and has prepared a number of manuscripts, some of which have been published.

...

He [Sterling] has offered to prepare a detailed proposal for the extension, but I am not too concerned about this since we could continue under the old agreement [emphasis added]. {2020.06, pp. 1–2}

One of the main purposes of CTR special projects funding was to attempt to discredit independent scientific findings about tobacco. A letter from William Shinn at Shook, Hardy, and Bacon to the counsels for the tobacco companies requesting their approval of Sterling's funding credits their funding arrangements with Sterling as enabling the companies to obtain fast responses from Dr. Sterling to dispute scientific results that were not favorable to the industry. In contrast to research grants, which usually focus on a specific topic, the lawyers' correspondence indicates that Dr. Sterling's special projects funding was used to criticize the work of other scientists, such as Cohen's study showing that smoking adversely affects people's ability to eliminate dust from their lungs (described below).

A February 4, 1981, letter from William Shinn of Shook, Hardy, and Bacon to the counsels for the tobacco companies states:

As in the past, Dr. Sterling has used the support received from his grant to develop proposals for other projects. The flexibility inherent in the current arrangement has also provided Dr. Sterling with the ability to respond quickly to new scientific developments.

... Dr. Sterling analyzed Cohen's article [8], which appeared in Science , May, 1979, and concluded that Cohen's claim that smokers have impaired long-term clearance capabilities compared to nonsmokers' is open to challenge because of his faulty experimental design. Dr. Sterling interested

Dr. Glicksman and colleagues at Brown University in this problem. Subsequently, both Dr. Sterling and Dr. Glicksman presented papers highly critical of Cohen's work at a recent conference. ... Dr. Sterling has been informed that Cohen and colleagues have apparently ceased this type of experimental work. In view of the many claims about the possible interaction of smoking and occupational exposures, Sterling's critical response to Cohen's work seems particularly important [emphasis added]. {2022.06, pp. 1–2}

Cohen and his colleagues (8) had human volunteers inhale a dust that could be traced because of its magnetic properties over a long period of time. They showed that after one year smokers had eliminated only half of the dust from their bodies, whereas nonsmokers had eliminated 90 percent of the administered dose. This work had potentially important implications for setting exposure limits to toxic dusts in occupational and in environmental settings.

Shinn's letter recommending approval of Sterling's funding contains a comment revealing the lawyer's interest in maintaining that Sterling was an independent scientist and not a representative of the tobacco companies:

Dr. Sterling is an independent scientist, of course, and as we have stated in earlier grant requests, there are to be no restrictions attached to his research work. Dr. Sterling's findings are his own, and we are free to agree or disagree with them. {2022.06, p. 3}

A March 1, 1982, memo from Patrick M. Sirridge at Shook, Hardy, and Bacon to the counsels for the companies requesting their approval for further funding of Sterling indicates that the lawyers were directly managing at least some of Sterling's work:

It is further recommended that the extension of Theodor D. Sterling, Ltd. commence May 1, 1982, because of unforeseen expenses due mainly to additional requests from our office [emphasis added]. {2037.04, p. 1}

Sirridge's acknowledgment that unforeseen expenses had been incurred by Sterling because Sterling was responding to additional requests from Shook, Hardy, and Bacon presents an ironic contrast with Shinn's insistence a year earlier that Sterling was an independent scientist. Sirridge repeats the point made by Shinn that the companies' funding arrangement with Sterling enabled him to respond quickly, apparently to requests from the lawyers. For example, one special request involved responding to publications on environmental tobacco smoke:

In January, 1982, Dr. Sterling prepared written comments in response to a paper presented by James E. Repace [of the US Environmental Protection

Agency] at the ASHRAE (American Society of Heating, Refrigeration and Air-conditioning Engineers) in Houston. ... Dr. Sterling's oral presentation at the Houston meeting and the written comments which will be published in the ASHRAE Transactions this summer provide the first public criticisms of the deficiencies in Repace's scientific methodology. Further, Dr. Sterling pointed out that Repace's reliance on studies such as Hirayama's [Takahishi Hirayama published a paper in 1981 demonstrating that environmental tobacco smoke increases the risk of lung cancer in nonsmokers] was misplaced and that his conclusions were at variance with many published reports and Dr. Sterling's own research on indoor air pollution.

The flexibility inherent in Dr. Sterling's ongoing project enables him to respond within a short time to scientific developments. His willingness to prepare written comments on Repace's paper with only a few weeks notice is a good example. Dr. Sterling also responded to the publication of Hirayama's article early last year with a highly critical letter to the British Medical Journal , a copy of which is enclosed as Appendix D. Most recently, Dr. Sterling has prepared responsive materials on the scientific aspects of legislative proposals (Waxman and Hatch bills) pending in Congress [emphasis added]. {2037.04, p. 2}

Sirridge then points out that Sterling's work will be useful for stimulating controversy about the health effects of environmental tobacco smoke:

[Sterling] has written an extensive critical review of the literature on indoor by-product levels of tobacco smoke which is scheduled for publication in March. This paper will serve as a useful critique of previous studies in this area, as it points out their deficiencies and emphasizes the need for more careful work ... [emphasis added]. {2037.04, p. 2}

In 1984, at the request of Ernest Pepples, B&W vice president for law, Sterling began to receive funding directly through the law firm of Shook, Hardy, and Bacon to continue his work reviewing epidemiological studies that demonstrated a link between smoking and disease {2037.01}. In a January 24, 1984, letter to Sirridge at Shook, Hardy, and Bacon, Pepples agrees that Sterling should be funded at the budget levels set forth but also states:

I do not think, however, that we should continue burdening CTR with such programs, and instead suggest that they be handled as law firm projects. {2037.01}.

Table 8.1 shows that in 1985 Sterling began to receive funding through Special Account 4, which was administered by the law firm of Jacob and Medinger.

In 1984, two years after Sirridge wrote the memo describing the usefulness of Sterling's work {2037.04}, that work continued to be useful to

the industry by stimulating controversy and refuting scientific findings about tobacco. A January 23, 1984, memo from Patrick Sirridge of Shook, Hardy, and Bacon to the general counsels of the tobacco companies summarizes some of Dr. Sterling's accomplishments for the tobacco industry:

He [Sterling] has also been concerned with selectivity in reporting in government reports such as the Surgeon General's. His conclusions have been presented at scientific meetings. ... Dr. Sterling and members of his staff have appeared before scientific and professional groups such as BOCA, ASHRAE [American Society of Heating, Refrigeration and Air-conditioning Engineers], and the California Energy Commission. ...

During the past year, Dr. Sterling attended international meetings in Geneva and Turin to present reports on environmental conditions in office buildings. Based on his research results, Dr. Sterling reported that there was no difference in the prevalence of complaints about health or environment among smokers and nonsmokers working in offices where smoking was permitted versus those where it was prohibited. Dr. Sterling continues to publish papers in scientific journals and make presentations at scientific meetings. ... Dr. Sterling has also provided assistance in responding to the 1982 and 1983 proposed legislation regarding new warning labels. He appeared before Congressman Waxman's Committee in 1982 and submitted statements in 1983. {2015.04, p. 2}

BOCA, ASHRAE, and the California Energy Commission are organizations involved in creating ventilation standards for buildings that are directly affected by environmental tobacco smoke. Sterling's presentations had the potential to influence regulation of environmental tobacco smoke exposure directly. The meeting in Geneva was a tobacco industry–sponsored symposium (9). Like those of other industry-sponsored symposia, the published proceedings of the Geneva conference featured the work of industry-funded scientists and contained articles that support the tobacco industry's position that tobacco smoke is not harmful (9). The industry-sponsored symposia are often cited by the industry as if they are peer-reviewed scientific journal articles that support the industry's position (1).

Sterling and Harold Perry were also funded under a CTR special project from 1978 through February 1982 to conduct an environmental study entitled "Retrospective Analysis of Environmental Contacts of Patients with Respiratory Cancer, Other Cancers, and Other Diseases" {2020.01}. In 1980 Sterling was funded under a CTR special project to conduct a study of indoor environments ("Feasibility Study on Office

Environments" {2022.10}). Robert Northrip (of Shook, Hardy, and Bacon), in a letter to the general counsels recommending funding, states:

It is our opinion that this work could be extremely useful in view of the intense activity we are witnessing in both legislatures and referendums to restrict indoor smoking. {2020.03, p. 2}

This study led to the development of a proposal entitled "Office Building Syndrome," with the purpose of examining

[the] dependence of this syndrome on building design and ventilation features, and investigating the syndrome's relationship, if any, to life-style factors, such as smoking. {2022.03, p. 1}

Theodor Sterling and his son, Elia Sterling, were coinvestigators on the $200,160 special project {2022.02}.

The documents show that Sterling has continued to receive funding through CTR and law firm special projects through at least 1993. The publication of Sterling's criticisms was part of a broad industry strategy to stimulate controversy about the adverse health effects of environmental tobacco smoke (1, 10, 11). Sterling's publications also gave the tobacco industry supportive material that could be cited in testimony before Congress, in court, in the medical literature, and in response to government documents in support of their position that the links between active and passive smoking and disease were "controversial."

Microbiological Associates

Although lawyers appear to have been primarily involved with CTR's special projects, in at least one case they became involved with a project that had been awarded as a contract through CTR. The contract was approved by the Scientific Advisory Board, but CTR had control over the data and publication of the results. The documents describe a contract during the 1970s with Microbiological Associates to conduct studies on the effects of cigarette smoke in mice.

Microbiological Associates was conducting inhalation studies, in which mice were placed in small chambers and breathed smoke-laden air for part of the day. Other studies were short-term biological tests to determine the carcinogenicity of cigarette smoke condensate. Tobacco industry lawyers were unaware that CTR had been funding the biological tests until 1977, when one of the scientists at Microbiological

Associates (a Dr. Gardner) requested additional funding from CTR to study smoke fractions in the biological tests. The ultimate purpose was to identify the compounds within tobacco smoke that are responsible for its carcinogenic effects.

The lawyers were apprehensive about this work because its results might give rise to lawsuits if the tests showed that certain elements in tobacco smoke were carcinogenic and also because the tests might constitute a breach of antitrust laws (discussed in chapter 7). These concerns are described in a memo from Ernest Pepples of B&W to Addison Yeaman, another B&W lawyer, dated March 10, 1977.

I did not understand until I talked with Arthur Stevens [CEO of B&W] that CTR in the last several years has tested cigarette smoke condensate fractions in the following tests: (1) in the Ames microbiological screen for mutagenic activity; (2) for possible tumorigenic activity in a tissue culture assay; and (3) for promoting activity by using subcutaneous injections in mice. The fractions were originally produced by someone at the USDA for CTR under what has been called the "Stedman procedure." Most of the assay work has been carried out at Microbiological Associates.

Let me say parenthetically that years of cherishing Dr. [Robert] Hockett's [of the CTR] oft quoted comment about mice tests—the wrong animal, the wrong tissue, etc.—I confess that I was somewhat jarred by the revelation to me about tests on mice through the CTR [emphasis added]. {1817.02}

Pepples says that he has discussed the tests with several other tobacco industry lawyers, and none of them knew that CTR was engaged in this sort of work.

We all think these tests are so significant that members of your [CTR] Board and people who attend the scientific sessions as I have off and on for the last couple of years should be better informed. Pursuing the thought just a bit further, these tests are so-called red light tests . They have been developed for use by FDA and other agencies in possibly identifying harmful ingredients and substances in products which are available to the consuming public. At best they show only a probability of trouble but they are used as a signal in such things as whether Red Dye No. 7 or cyclamates or hexachlorophene should be yanked off the market. I do not have to tell you what Senator [Edward] Kennedy [D-MA] would do with a finding by a CTR grantee of red lights in one of these tests as it applies to cigarette smoke fractions . We would never be able to explain that we were only replicating or confirming some other person's work. No matter what our explanation happened to be the fact of the red light in our own hands would be a serious burden to the tobacco industry if it came out in legislative hearings or in litigation [emphasis added]. {1817.02}

One of the short-term tests being done at Microbiological Associates was a test to see whether tobacco smoke caused chromosomal abnor-

malities in laboratory animals. Such a study had been done by the Food and Drug Administration in its investigation of cyclamates (see chapter 7). Pepples recommended that the inhalation program at Microbiological Associates should continue until completion, but that the short-term biological tests should not be funded through CTR {1817.03, p. 1}.

The final action taken on the research at Microbiological Associates is described in a memo from Ed Jacob, of the Jacob and Medinger law firm, to Pepples. The memo is dated June 22, 1978, and is titled "Current Status of CTR's Consideration of Microbiological Associates Contract Proposals."

Following the visit by the SAB [Scientific Advisory Board] Task Force and staff to Bethesda regarding status of Microbiological Associates (MA) contract and later discussions between SAB and staff, CTR has now proposed the following action to MA with regard to the MA proposals for the contract year July 1, 1978 through June 30, 1979:

The studies that CTR declined to fund include short-term biological tests. Although the documents do not indicate the reasons for CTR's decision, the decision is consistent with Pebbles's recommendation. Ed Jacob's memorandum on CTR's final action was transmitted to eight industry lawyers (at both tobacco companies and outside firms) in a memo

describing it as "a most interesting report" {1820.02}. The degree of industry lawyer participation and interest in CTR's action on the Microbiological Associates work is particularly noteworthy because the work at Microbiological Associates was funded through CTR's Scientific Advisory Board, not through its special projects division.

Addiction Research Foundation: A Case Study Of A Special Project The Industry Was Not Interested In Funding

The documents contain at least one instance in which an applicant for funding considered the lawyers as the court of last resort in attempting to procure tobacco industry funding for research. In December 1976 the Addiction Research Foundation, directed by pharmacologist and Stanford University professor Avram Goldstein, M.D., submitted a formal grant application to CTR requesting $400,000 for the purpose of constructing a new research facility. The Addiction Research Foundation had been studying the mechanism of opiate addiction, and the new facility would enable it to expand its work to include the mechanism of nicotine addition.

Dr. Goldstein was told by CTR that it would consider proposals "directly related to tobacco and health, but that it was not in a position to provide funds for structuring the Addiction Research Foundation" {1913.08}. He then pursued funding from individual tobacco companies. Correspondence alerting the individual companies that Leonard Cornell of the Addiction Research Foundation would be contacting them was circulated by Shook, Hardy, and Bacon to Brown and Williamson, American Brands, Liggett & Meyers, Lorillard, Philip Morris, R. J. Reynolds, and US Tobacco. The letters stated that Cornell would be writing the tobacco companies to request funding and that CTR had already rejected the Addiction Research Foundation's application for funding. Cornell did approach the individual companies seeking funding. Only Lorillard responded to his letter, and it issued a terse denial of funding that offered no reason for its decision.

In a final attempt to receive funding from the individual companies, Cornell wrote William Shinn, attorney at Shook, Hardy, and Bacon, on August 9, 1978. Cornell argued that the tobacco industry should be interested in funding the Addiction Research Foundation because the foundation's work could be directed to developing a "safe cigarette"—i.e., a cigarette that "could create the nicotine effect that smokers enjoy without the toxicity of nicotine" {1913.04}.

Perhaps the term 'addiction' turns them [the tobacco companies] off. That is no obstacle. We're willing to establish the tobacco research under a separate name: 'The RJ Reynolds Program ...' or whatever. {1913.04, p. 2}

Although Cornell wrote that his appeal was "attuned to the needs and desires of the tobacco industry in terms of public relations and accelerating profits" {1913.04, p. 2}, he did not realize that the tobacco industry would not fund any proposals that acknowledged that nicotine is addictive.

The document shows that Shinn transmitted Cornell's letter to the general counsels for several tobacco companies as well as to other outside lawyers {1913.04}, but the lawyers showed no interest in approving Cornell's request. The tobacco companies refused to fund the Addiction Research Foundation because of their starting assumption about nicotine; at the same time, BAT's internal research program had come to similar conclusions about nicotine and addiction fourteen years earlier (see chapter 3). The reason that the Addiction Research Foundation did not receive support from the industry is summed up in a memo from C. L. Waite to H. R. Kornegay (of the Tobacco Institute):

Mr. Cornell's foundation actually assumes tobacco (nicotine) is addictive and costs the U.S. citizen 42 billion dollars a year! He also believes tobacco causes 300,000 premature deaths each year. And he wonders if this is why we might not be interested. {1913.01}

Law Firm Accounts

The documents contain information about two special accounts, Special Account 4 and Special Account 5. (We have no information about Special Accounts 1, 2, 3, or numbers above 5, or even whether such accounts existed.) Special Accounts 4 and 5 supported research projects and consultancies with money provided directly by law firms. Special Account 4 was administered by Jacob and Medinger. It was one of several special accounts maintained by law firms and administered by lawyers. These accounts funded research by expert witnesses in preparation of testimony directly related to a particular case, or prepared witnesses to testify at congressional or other hearings, or supported other research deemed useful by the lawyers {1000.01, p. 44}.

In a 1978 memo to the counsels for the tobacco companies, William Shinn of Shook, Hardy, and Bacon explains how Special Account 4 is administered:

This account is administered by Jacob & Medinger and Ed Jacob and I have reviewed the enclosed report. I also enclose a memorandum with regard to funding of projects and would appreciate your advice if you find this to be incorrect in any way. There is probably no need for you to retain those notes once you have satisfied yourself of the current situation. {2010.01, p. 1}.

The notes are not among the documents.

As shown in table 8.1, seventy-two projects (forty-nine research projects and twenty-three consultancies) were funded between 1976 and 1993 through these special accounts. The documents describe only one project funded through Special Account 5 (table 8.1) and do not contain a clear explanation of the difference between Special Accounts 4 and 5. The Special Account 5 project appears to have been a consultancy, because two individuals received $637,000 between 1979 and 1983 to analyze policy issues dealing with control and regulation of routine behavior in a democratic society. The analyses generated from this project may have been used for the tobacco industry's smokers' rights campaigns.

Special Account 4: Projects And Consultancies

Most of the research projects funded through Special Account 4 described in the documents are related to environmental tobacco smoke (table 8.1). For example, the purpose of four of the Special Account 4 research projects was to measure levels of tobacco smoke in the environment. Other Special Account 4 research projects studied potential confounding factors for adverse health effects associated with smoking. For example, projects examined genetic factors associated with disease or the influence of low-protein diets or psychological stress on pregnancy outcomes. Funding research projects such as these, which divert attention from research on the adverse health effects of tobacco, has been a long-standing tactic of the tobacco industry (1, 11).

Twenty-four of the consultancies funded through Special Account 4 were to support the preparation of statements for hearings on public smoking restrictions (table 8.1). Individuals were paid from $2,500 to $4,000 to prepare these statements. As described later in this chapter, the statements favored the tobacco industry's position that smoking in public places should not be regulated. The Special Account 4 consultancies also supported the preparation of reviews of the scientific literature on topics ranging from the "tobacco habit" to lung retention of particulate matter. As was noted earlier, tobacco industry–sponsored

reviews published in symposia proceedings consistently favor the industry's position that tobacco is not harmful (9). Some individuals were also paid for "continuing consultancies" for unspecified purposes. These continuing consultancies ranged from $500 to $1,500 per month and up.

Special Account 4: Domingo Aviado

The documents describe in detail the Special Account 4 consultancy that was awarded to Dr. Domingo Aviado. Domingo Aviado was a faculty member (rising from assistant professor to professor) in the Department of Pharmacology at the University of Pennsylvania from 1953 through 1977. A well-respected researcher on the effects of various airborne pollutants on health, he published extensively and served on numerous government committees. A May 9, 1977, letter from William Shinn of Shook, Hardy, and Bacon to the counsels for the tobacco companies indicates that Dr. Aviado received grant support from CTR during his years at the University of Pennsylvania, but that he is now requesting funding directly from the companies while he is in his new position:

Dr. Aviado was supported until January 1 of this year by the Council for Tobacco Research—U.S.A. but has been advised that his latest application for funds was not approved. {2007.02, p. 1}

Shinn recommends that Aviado's request for $85,000 be approved for the period July 1, 1977, to June 30, 1978.

In 1977 Dr. Aviado left the University of Pennsylvania and became senior director for Biomedical Research Corporate Medical Affairs, Allied Chemical Corporation. In an October 24, 1979, letter Shinn tells the counsels for the tobacco companies that Dr. Aviado plans to leave Allied Chemical and proposes that he be supported by the tobacco industry in an amount equal to his annual total compensation at his previous position.

Dr. Aviado is planning to leave Allied Chemical. ...

Dr. Aviado is currently earning $75,000 in salary. He also receives an annual bonus, fringe benefits and a travel account that bring his total compensation to over $100,000.

I seek authority to make a grant or set up some other arrangement with Dr. Aviado for an estimated total cost of $100,000. ...

Dr. Aviado has been most helpful in evaluating research proposals, suggesting various projects and conducting a continuing literature search in several important areas such as carbon monoxide and "dependency." {2007.05, pp. 1–2}

Letters from Patrick Sirridge of Shook, Hardy, and Bacon to the counsels for the tobacco companies indicate that Dr. Aviado formed his own consulting organization in 1980 and that this organization was supported by Special Account 4 through 1985. In addition, the letters describe the importance of Dr. Aviado's work to the industry. This correspondence provides an instructive chronology of work of interest to the industry. The letters confirm that the tobacco industry sought to benefit from Aviado's good reputation as a retired scientist and from his membership on government committees, such as the EPA Clean Air Advisory Committee. Excerpts from the letters, outlining the chronology of his support, are given below:

Letter dated February 6, 1981:

A grant of $80,000 was given to Dr. Domingo Aviado during 1980. ...

During 1980, Dr. Aviado formed his own consulting organization named Atmospheric Health Sciences, Inc. He devoted approximately 150 days of the working year to projects related to smoking and health. His projects included an ongoing review of smoking and health literature, preparations of recommendations re research projects, several site visits to research institutions and the preparation of materials relating to our work on various smoking and health related matters. Without question, Dr. Aviado's efforts were of immense benefit to us. {2007.08, p. 1}

Letter dated February 8, 1982:

In 1981, a grant of $92,000 was given to Dr. Domingo Aviado. ...

During 1981, he devoted approximately 160 days of the working year to projects related to smoking and health. These projects included an ongoing review of smoking and health literature, preparations of recommendations regarding research projects, several site visits to research institutions and the preparation of statements and critiques relating to our work on various smoking and health related matters. Dr. Aviado was especially active in the areas of public smoking, self-extinguishing cigarettes and occupation-related diseases.

Dr. Aviado remains an extremely important resource for us in our smoking and health work. He also is a valuable source of information by reason of his membership on the EPA Clean Air Advisory Committee ... [emphasis added]. {2007.10, p. 1}

Letter dated January 26, 1983:

For the past three years, Dr. Domingo Aviado has received a Special Fund 4 grant for the support of his consulting activities in the smoking and health area. In 1982, the amount of the grant was $102,000. ...

During 1982, he devoted approximately 190 days of the working year to projects related to smoking and health. These projects included an ongoing review of smoking and health literature, preparation of recommendations re-

garding research projects, several site visits to research institutions, the preparation of statements (including one for the Waxman/Hatch hearings) , and the analysis of ongoing technical issues related to our work in the smoking and health area. ...

Dr. Aviado continues to be a valuable source of information by reason of his work for the EPA Clean Air Advisory Committee ... [emphasis added]. {2007.13, p. 1}

Letter dated February 1, 1984:

For the past four years, Dr. Domingo Aviado has received a Special Fund 4 grant in support of his consulting activities in the smoking and health area. In 1983, the amount of the grant was $102,000. ...

During 1983, he devoted approximately 195 days of the working year to projects related to smoking and health. These projects included an ongoing review of the relevant literature, preparation of recommendations regarding research projects, the preparation of statements (including two for the Waxman/Hatch hearings), attendance at various scientific meetings , and the analysis of ongoing technical issues relating to our work in the smoking and health area. Dr. Aviado was especially busy in the areas of public smoking, occupation-related diseases, and the possible effects of tobacco smoke constituents/ingredients.

Dr. Aviado continued his technical association with the EPA Clean Air Advisory Committee. ...

As you may remember, Dr. Aviado attended both the Fifth World Conference on Smoking and Health and the Rylander Symposium during 1983 [emphasis added]. {2007.16, pp. 1–2}

(Aviado does not appear to have made a presentation at the Fifth World Conference.) The Rylander symposium was a tobacco industry–sponsored scientific meeting on environmental tobacco smoke; participants presented research criticizing the data on passive smoke and suggesting that passive smoke is not harmful (9).

Letter dated February 8, 1985:

For the past five years, Dr. Domingo Aviado has received a Special Fund 4 grant in support of his consulting activities in the smoking and health area. In 1984, the amount of the grant was $102,000 for professional time and expenses. We recommend that Dr. Aviado be given support in 1985 in the same amount ($102,000) to be funded again through Special Fund 4.

During 1984, he devoted approximately 204 days of the working year to projects related to smoking and health. These projects included his ongoing review of generally relevant literature, special reviews of literature relating to bronchogenic carcinoma, environmental carcinogenesis and pulmonary metastases, analysis of environmental tobacco smoke materials and preparation of related critiques, attendance at various scientific meetings, work on the smoking aboard aircraft issue and participation at a CAB [Civil

Aeronautics Board] hearing , and analysis of studies involving atherosclerosis and smoking behavior. Dr. Aviado has been especially busy in the last few months working with the newly formed industry committee on environmental tobacco smoke.

Dr. Aviado continued his informal association with the EPA Clean Air Advisory Committee and other governmental groups. ... He also continues to be helpful in identifying possible medical consultants in the New Jersey area [emphasis added]. {2007.18, pp. 1–2}

The chronology of Aviado's work illustrates a common tobacco industry technique to bootstrap its consultants' work into scientific authority that is used to try to influence legislation and smoking policy. Aviado was hired by industry lawyers to do work including critiques of evidence on tobacco's health dangers, which were presented at scientific meetings. In addition, Aviado's work included presentation of papers at symposia on tobacco and health sponsored by the tobacco industry that, not surprisingly, questioned the evidence linking tobacco to disease. The papers at the symposia were then cited in congressional testimony and other forums without featuring the fact that the symposium at which the papers were presented was industry funded. In addition, when Aviado submitted critical comments to the EPA regarding its risk assessment of environmental tobacco smoke and lung cancer, he did not mention his tobacco industry connections (1); we do not know whether he had disclosed his industry connections in earlier comments submitted to the CAB.

University Special Projects

Some research projects were funded directly by the tobacco companies, rather than through CTR or the law firms. Some of these projects were funded individually by Brown and Williamson and some by pooled contributions from companies. Projects funded directly by tobacco companies apparently included relatively unrestricted grants to universities {2003.01}. The motivation for funding these projects is not revealed in the documents.

In contrast to projects funded through CTR or the law firms, these university projects did not focus exclusively on research related to tobacco use. There was debate among the tobacco companies concerning whether or not projects that were not directly related to tobacco should be funded. For example, some of the companies declined to join in support of a diabetes research project at Washington University ($8,100,000 from April

1, 1971, through March 31, 1991 {2003.01}) or research at UCLA on genetic markers, host defenses of the lung, and immune action in the body ($2,750,000 from June 1, 1974, through May 31, 1982 {2003.01}).

As with CTR and law firm special projects, lawyers and high-level tobacco industry executives were intimately involved in funding decisions for university projects. For example, in 1980 William Shinn of Shook, Hardy, and Bacon organized a site visit to review Washington University's request for continued support {2019.01}. The site visit committee consisted of the executive officers of Brown and Williamson, Liggett & Myers, Philip Morris, R. J. Reynolds, Tobacco Associates, the Tobacco Institute, and US Tobacco {2019.09}. There is no indication that the lawyers and executives were accompanied by scientists or that the funding was subject to the scientific peer review process.

Involvement Of Lawyers In Research Design

One example of the way in which lawyers influenced the design of research projects is the Response Analysis Corporation project, which involved the measurement of environmental tobacco smoke (ETS). A November 10, 1976, letter from Donald K. Hoel of Shook, Hardy, and Bacon to the attorneys of five tobacco companies describes a meeting at which the Response Analysis Corporation's questionnaire for assessing annoyances in indoor air was discussed:

Concern was expressed that the questionnaire's list of annoyance items, which included several related to tobacco products, did not have a modern empirical foundation. ... In order to strengthen the study in the above regard, a two-step effort was proposed by the Response Analysis staff. First, a national sample of approximately 200 persons would be asked essentially to list items that they find annoying. Then a different national sample of 200 persons would be asked to rate the annoyances obtained in the first step as to their frequency of occurrence and intensity. {2006.03, pp. 1–2}

In a later letter to the attorneys, Hoel discusses the results obtained from this modified proposal:

[The results point to] a new and potentially profitable direction to pursue. Specifically, of the total of 852 annoyances or irritations reported by the 207 respondents, only 26 (about 3%) were annoyances related to cigarettes, smokers or tobacco smoke. In the judgment of those in the Public Smoking Research Group, if the above results were obtained from a national sample of approximately 750 respondents, its impact in the public smoking controversy would be substantial. {2006.05, p. 1}

The rest of the letter requests approval of the Response Analysis Corporation's request for money to conduct the larger survey. In this project a seemingly minor change in design—a switch from a closed questionnaire (better design) to an open-ended questionnaire (poorer design)—gave the tobacco industry the results it wanted. The project also shows that the tobacco industry's lawyers were aware of the importance of ETS as an issue long before the mainstream health community appreciated its importance.

Smokeless Tobacco Council

The Smokeless Tobacco Council (STC) is a tobacco industry–sponsored research organization that concentrates on smokeless tobacco. Like CTR, the Smokeless Tobacco Council is supported by contributions from individual tobacco companies (see chapter 2). Also like CTR, the STC appears to fund many proposals not on the basis of scientific peer review, but on the basis of interest to tobacco company lawyers.

In September 1978 Ernest Pepples, counsel for B&W, recommended that B&W join the Smokeless Tobacco Council:

I think it would be polite to join and would recommend contributing $5000 per annum. ... The primary purpose of such membership, however, would be to know what the Smokeless Tobacco Council is doing as a protective measure both for our interest in that product area and against the possibility that some research they do could impact on our cigarette business. {1500.06}

B&W appears to have joined the STC because it wanted to keep abreast of what the STC was doing. Furthermore, as described in more detail below, the individual companies were concerned that research on smokeless tobacco might indicate that the smokeless tobacco products were less hazardous than cigarettes.

J. K. Wells, a B&W lawyer, attended an STC meeting after B&W joined. In a November 9, 1979, memo to Ernest Pepples {1502.01}, Wells summarizes what went on at the meeting.

Tim [Finnegan of the law firm Jacob, Medinger, and Finnegan] reported that Dr. H. Russell Fisher appeared at the annual meeting of the AMA [American Medical Association] in Chicago and protested on the floor the adoption of an AMA resolution which urged the media to refuse smokeless tobacco advertising, especially television and radio . [Dr. Fisher also received roughly $2,500 through a Special Account 4 consultancy to prepare testimony for the Waxman/Hatch hearings in 1982.]

Dr. Fisher's appearance was cleared beforehand with Fred Panzer [a public relations expert with CTR].

... efforts had been made to find scientists in other areas of the country [outside the southeast] willing to do research in the area of health and smokeless tobacco, but ... no interested scientists had been found.

...

Tim gave an update on the Douglas v. US Tobacco [case], now pending in Ft. Smith, Arkansas. ... Tim believes the plaintiff will have a difficult time winning the wrongful death claim [involving Red Seal snuff] because the cause of death was listed as secondary, but primary site pelvic cancer [sic ].

The approach to research used by the STC is based on the concept that the only serious line of scientific attack on smokeless tobacco at the present time in the United States is clinical observation studies (in contrast to epidemiological studies). [The memo goes on to give the usual attacks on epidemiology.]

...

I discussed with Tim privately whether research had been or was being done to identify the constituents or by-products of smokeless tobacco and whether any research was planned dealing with NNN [N-nitrosonornicotine, a laboratory carcinogen present in smoke and smokeless tobacco]. Tim said that ... [n]one is planned because the prevailing theory is that the best position for the STC is on the question of the effect on the human body of the whole product and to identify various constituents, many of which might be defined as tumorigenic in other contexts[,] would weaken the industry's position. In other words, it is 'the other side's' duty to produce allegations that certain constituents result from the use of smokeless tobacco and are harmful [emphasis added]. {1502.01, pp. 1–2}

As Well's report indicates, the STC funded scientists who would work closely with the industry to combat policies to regulate smokeless tobacco and to attack and dispute scientific findings about smokeless tobacco. Furthermore, the STC steered away from funding research, such as that on NNN, that might have suggested a harmful effect of tobacco. The STC's refusal to fund work on NNN, an obligatory component of tobacco with a high likelihood of being harmful, was particularly significant. The STC meeting also served the purpose of keeping the participants informed about ongoing litigation related to smokeless tobacco.

In 1985 the STC responded to a request by Joseph W. Cullen, of the US Public Health Service, for scientific evidence on the health consequences of using smokeless tobacco. Cullen was chairman of the Advisory Committee on the Health Consequences of Smokeless Tobacco, which was preparing a Surgeon General's report on the topic. A letter to Dr. Cullen from Michael Kerrigan, president of the STC, contains the

same arguments that are being used today to combat the EPA risk assessment of environmental tobacco smoke (1, 11) (see chapter 10).

[T]he industry is concerned that the conclusions and resulting report by the Advisory committee are preordained. ...

Enclosed are statements submitted in those forums [of Waxman's subcommittee] by many eminent scientists who, after close review of the literature and, in many cases, from their own work, have concluded that smokeless tobacco has not been scientifically established to cause human disease and is not addictive. ...

[T]o date no one knows the cause or causes of oral cancer and ... much more research is needed before any conclusions can be drawn. ...

The need to identify the areas where more knowledge is required is important. ... [T]he industry is continuing to fund independent research into questions of smokeless tobacco and health. ...

[E]nclosed is a compilation of citations to a substantial portion of the world's literature pertaining to smokeless tobacco and oral cancer. {1503.02, pp. 1–3}

In short, the STC, using the same strategy that CTR was using, paid scientists to produce data that would dispute scientific findings on tobacco, to review and criticize the scientific literature on tobacco, and to perpetuate controversy about the adverse effects of tobacco. Nothing in the documents suggests that the STC would support research that could possibly contradict the industry position that smokeless tobacco is not harmful. The research by the STC-supported scientists revealed in the documents was used in attempts to influence policy makers involved in regulating tobacco and to inform lawyers involved in litigation.

The Kentucky Tobacco And Health Research Institute

The state of Kentucky established the Tobacco and Health Research Institute at the University of Kentucky to conduct a program of research on smoking and health issues. The institute is financed through the state excise tax on cigarettes, and its external grants are approved by the Kentucky Tobacco Research Board. The board's membership includes a representative of the tobacco product manufacturers, and B&W General Counsel Ernest Pepples held that seat in 1984 {1602.01}. The Kentucky Tobacco and Health Research Institute was publicized as an independent taxpayer-funded program that supports research on tobacco. However, the documents suggest that tobacco company lawyers were involved in the administration of this program.

In a November 6, 1980, letter, Ernest Pepples asks attorney Timothy Finnegan to check the background of a Dr. David Justus, of the University of Louisville, who has requested funding from the Tobacco and Health Research Institute {1600.01}. Justus had written Dr. Gary Huber, then the director of the Institute, to ask if the institute would be interested in funding his work on tobacco hypersensitivity {1600.01}. Pepples forwarded the request to Finnegan and asked Finnegan:

I wish you would find out, without tipping over any cans , what Dr. Justus has done in the tobacco allergy field. At this point all I would like to have is a search of the literature to see if Dr. Justus has published on tobacco and how we assess his work. I would not want him to become worried that a tobacco company somehow is reviewing his request for continued assistance from the [Kentucky Tobacco and Health Research] Institute [emphasis added]. {1600.01}

This is a most interesting episode. The kind of preliminary enquiry regarding funding for a possible research project would normally be answered by the agency staff with a letter encouraging or discouraging a proposal. Only after such a formal proposal had been received and favorably reviewed would the proposal normally be submitted to a policy-making board for final approval of funding. The documents do not indicate how Pepples came into possession of the Justus letter to Huber, the institute director. Pepples's request for discretion in checking Justus's background indicates that he wanted to keep quiet the active role that he and the other industry lawyers were playing in the selection of grantees. In any event, transmission of Justus's request to a lawyer from an out-of-state law firm suggests funding requests to the institute were subjected to influences other than scientific peer review.

The documents reveal that Pepples also asked William Shinn, a lawyer at Shook, Hardy, and Bacon, to evaluate the scientific work done by the Kentucky Tobacco and Health Research Institute. Following the September 1984 meeting of the Tobacco Research Board, Pepples wrote Bill Shinn at Shook, Hardy, and Bacon with some concerns about the research program the institute had developed.

Looking at the Kentucky Institute's Annual Report of Research, it seems to cover an impressive amount of work in many disciplines. Most, if not all of it, however, has been published before by others. ...

I believe Layten Davis [director of the institute at the time] is interested in positive aspects of smoking. He has encouraged the work in stress abatement and good people are working in the area. Dr. Martin and his colleagues have been looking at the effect of nicotine on the dog's brain. They are seeking to

identify effects on the brain and then to selectively mimic those effects with new compounds. Both Martin and Fell appear to be on the leading edge of positive research.

I would be interested in hearing your views on the credits and debits of the current research at the Kentucky Tobacco and Health Research Institute. {1603.01}

(The discussion of Martin's research indicates that the institute, like BAT and Philip Morris, was engaged in research on nicotine analogues. The "positive" research referred to in the letter is research that would demonstrate a benefit of smoking—e.g., stress abatement.)

The Kentucky Tobacco and Health Research Institute also turned to the industry and its lawyers for help in preparing congressional testimony. In a letter dated September 28, 1983, Ernest Pepples informs John Rupp, an attorney at Covington and Burling, about one such request:

Dr. Layten Davis, Director of the Kentucky Tobacco & Health Research Institute, has just received a letter from Congressman Larry Hopkins seeking comment on Moakley's self-extinguishing cigarette bill [see the discussion of fire-safe cigarettes in chapter 7].

Layten called me for help in replying to Hopkins's letter. He wants to say something about better fabrics and better ashtrays and something about the need for deliberate care and study before tinkering with cigarette construction. He is particularly concerned about the biological effects of newfangled "self-extinguishing" cigarettes.

I said that Spears [Alex Spears, research director at Lorillard Tobacco] had prepared a good state-of-the-art summary, which Davis said he'd like to see. Could you send me the Spears paper and any other testimony you think should be provided to Dr. Davis. He also asked about MORE and the Nat Sherman cigarettes [two brands of cigarettes that were relatively fire-safe], of course. {1601.01}

The episodes revealed by the documents betray an unusually close working relationship between the institute, which presented itself as an independent arm of a publicly funded university, and industry lawyers, both in the evaluation of the institute's research and the institute's participation in public policy formulation.

Use Of Research From Special Projects

Although CTR's publicly stated purpose was to conduct scientific research, it actually served purposes related to public relations, politics, and litigation.

Producing Good Publicity

The tobacco industry used CTR to create a public image as a benevolent funder of science. In "Cigarette Smoking and Health: What Are the Facts?" TIRC-funded research is touted as contributing "to the fund of knowledge about lung cancer and other diseases" {1903.02, p. 4}. The document also boasts that "300 papers have been published in medical and scientific journals and societies which credit TIRC for support in whole or part" {1903.02, p. 4}.

A "Report to CTR Annual Meeting," dated January 31, 1975, describes 1974 as a "good year" for CTR because the work of its grantees was covered favorably in the lay press {1908.01}. The report specifically mentions that a paper published by Carl Seltzer (a special projects researcher, discussed earlier in this chapter) on the effect of smoking in lowering blood pressure "was reported on the front page of the Chicago Daily News and moved on CDN [Chicago Daily News] newswire" {1908.01}. The report also describes CTR's reaction when it did not receive credit for its sponsored research:

A CTR grantee last month had an article in an AMA journal that did not credit CTR for support. The article was brought to the attention of certain writers who were told of CTR's sponsorship. There was some followup on my part [the unnamed person who wrote the memo] and the science writer of the Pittsburgh Post-Gazette interviewed the scientist and wrote a nice piece. {1908.01}

Supporting The Industry's Public Policy Positions

An undated, unsigned document labeled "Privileged Attorney Work Product" and entitled "CTR Special Projects" shows that CTR and Special Account 4 special projects were used to fund researchers to testify at legislative hearings.

Dr. LGS Rao also received Special Account 4 money for testifying in the Hatch-Packwood, Waxman hearings. {2005.01, p. 1}

Rao's research, funded, in part, from 1977 through 1984 from Special Account 4, supported the tobacco industry's position that poor fetal outcome is associated more with poor nutrition than with smoking (table 8.1).

[Dr. Henry Rothschild] also testified at Hatch-Packwood, Waxman Hearings and probably received Special Acct 4 money. {2005.01, p. 2}

Rothschild's work, discussed above, was funded as a special project from 1977 through 1984, and was designed to support the tobacco industry's position that cancer is genetically determined (table 8.1).

Dr. [Gerhard] Schrauzer also testified in hearings re: Comprehensive Smoking Prevention Act of 1982. {2005.01, p. 3}

The memorandum does not specifically say whether Schrauzer was paid for this testimony. Schrauzer received support through CTR special projects to study selenium in tobacco and tobacco smoke (1981–83) and to conduct statistical and epidemiological studies on lung cancer (1983–85). He also was paid on a date not revealed in the documents through a Special Account 4 consultancy to prepare a statement on public smoking (table 8.1).

The undated, unsigned document described above summarizes studies that support alternate hypotheses for disease (e.g., the constitutional and genetic hypotheses):

CONCLUSION : Low protein intake (poor nutrition) associated with poor fetal outcome more than smoking habits. (NUTRITIONAL HYPOTHESIS ) [From a summary of L. G. S. Rao's Special Project through Account 4.] ...

SALVAGGIO/LEHRER PROJECT : All studies deal with rebutting contention that ETS [environmental tobacco smoke] aggravates allergies. ... [These investigators were funded through CTR special projects from 1981 to 1983 and from 1985 to 1988 (table 8.1).]

RESULTS : Challenge studies showed that exposure to cigarette smoke did not cause a significant decline in lung function among "smoke sensitive" individuals. Found that ETS did not impair lung function in asthmatics. ...

RESULTS : Preliminary clinical [trials] suggests that there are little, if any, human allergens in tobacco smoke. {2005.01, pp. 1–4}

This same document also cites a special project that could actually suggest positive health benefits of tobacco:

INVESTIGATORS : Drs. Henry and Linda Russek (Father and daughter) [They received funding through a CTR special project between 1979 and 1981 (table 8.1).]

SUBJECT : Relationship between psychological factors and disease. ...

Henry and Linda Russek have long investigated the link between stress and heart disease using prospective epidemiological studies. Have also found that smoking may be an effective means of coping with stress . ...

RESULTS : Proposal approved, and expected results to show that cigarette smoking is the best mechanism for smokers to cope with stress. Expect to show benefits of smoking (i.e. to reduce risk of stress-related heart disease) [emphasis added]. {2005.01, p. 3}

Creating A False Controversy Among Scientists

The tobacco industry's strategy of perpetuating controversy about the adverse effects of tobacco took place on two levels. One was to generate controversy among the lay public as discussed above. The other was to generate controversy among scientists. The controversy among scientists could then be publicized in the lay press. As mentioned in the previous sections of this chapter, special projects were often used to support scientists to prepare talks for conferences and to send scientists to conferences.

Sponsoring scientific conferences was identified early on as a way of publicizing results favorable to the tobacco industry's position. Support "in conducting conferences of scientists" is first mentioned in a document describing the formation of TIRC in 1954 {1903.03, p. 2} Sponsoring and publishing the results of scientific conferences has been used as a strategy by both the pharmaceutical and the tobacco industries to publicize research that supports their interests (9, 12). For example, the tobacco industry has sponsored at least six symposia on ETS. These symposia present research articles that are primarily unbalanced reviews of the medical literature, rather than original work. In general, the symposia articles, many of which are authored by industry-affiliated individuals, suggest that ETS is not harmful or that other factors contribute more to health problems than ETS does (9). Furthermore, once the symposia articles are published, they can be cited in a misleading fashion by the industry as if they were peer-reviewed medical or scientific journal articles. For example, articles from symposia proceedings were cited frequently by tobacco industry—affiliated individuals who reviewed the EPA risk assessment of ETS (1).

The tobacco company lawyers encouraged industry-supported scientists to attend scientific meetings in order to counter the results presented by the general scientific community. In 1978 William Shinn, an attorney at Shook, Hardy, and Bacon, wrote in a memo that it "may also be important to evaluate the desirability of increased attendance at scientific meetings" {1910.05}. Shinn then summarized the work of four non-industry-funded scientists who would be presenting data unfavorable to the industry at meetings, such as evidence that smoking is an addiction. The memo then notes that Dr. Gary Huber, then director of the CTR-supported research facility at Harvard University, will conduct a session at another meeting:

Dr. Huber has agreed to conduct a two-hour presentation at an American Thoracic Society/American Lung Association meeting in May. There will be

several participants, who will discuss the status of tobacco research in the fields of cancer, cardiovascular disease and chronic obstructive pulmonary disease. Dr. Huber also contemplates a section on the nonsmoker and tobacco smoke. {1910.05, p. 2}

Shinn's letter spends six paragraphs reporting on various aspects of Dr. Huber's work, including that Huber was concerned about the appearance that he had become closely identified with the tobacco industry:

Sometime ago Dr. Huber asked that a committee be formed at Harvard to critique the scientific aspects of the smoking and health programs. Dr. Huber, as you know, is very proud of the caliber of work done and wanted to lay to rest any accusations (completely unfounded) that the industry had control over the research. {1910.05, p. 3}

The lawyers also monitored the performance of industry-supported researchers at scientific conferences. It may be fairly inferred that if an industry-supported researcher presented data that were unfavorable to the industry, his or her chances for future industry funding would decrease. For example, an April 22, 1981, letter from attorney William Shinn to the counsels for the industry describes a meeting attended by special projects grantee Theodor Sterling:

At a meeting on occupational health, held earlier this month, he gave a presentation titled "Job Discrimination Based on Exposure Consideration and Smoking." This meeting was monitored by one of our research analysts ; she felt that Dr. Sterling's manner of presentation put his potentially hostile audience in a receptive mood and that the audience paid close attention to what Dr. Sterling had to say. He reviewed published evidence contrary to the idea that smoking heightens the risk of disease by interacting with certain substances to which workers are occupationally exposed. He also stated that the questions of whether other people's tobacco smoke is hazardous to non-smoking workers, and whether smoking workers represent an additional cost to industry, are not settled and that the published reports in these areas are based on data which can be questioned on sound scientific grounds [emphasis added]. {2022.03, pp. 2–3}

Researchers supported through special projects also reported back to the law firms and tobacco companies on the scientific conferences they attended. A January 19, 1978, memo from Donald Hoel at Shook, Hardy, and Bacon to Ernest Pepples states:

I enclose herewith a copy of a program for the International Symposium on Mechanisms of Airways Obstruction to be held in South Africa during March 28–31 of this year. You will note that Dr. [Domingo] Aviado [who was funded through special projects] is making a presentation at this symposium. I am

sure that upon his return, Dr. Aviado will be giving us a general report on the papers and presentations given at the symposium. {2007.03}

The tobacco industry sometimes sponsored conferences through an independent foundation, so that its sponsorship of the conference would not be disclosed. For example, in 1972 Dr. Theodor Sterling wrote to William Shinn asking for $5,000 to fund a panel on "Effects of Pollutants on Human Health at the International Meeting of the Society of Engineering Science in Tel Aviv, Israel." Sterling also suggested that the grant be awarded to the ALEPH Foundation, to "enable us to manage the arrangement of support in a proper and desirable manner" {2002.02}. It is advantageous for the tobacco industry to hide its sponsorship of scientific conferences because it makes the results that are presented at the conferences appear independent of the industry. In a memo to other industry lawyers, Shinn recommends that Sterling's request be approved and that it be funded through a "special project non-CTR" {2002.05}. Shinn believed that the conference proposed by Sterling would be valuable for advancing the industry's position that ETS is not dangerous because Sterling had been effective in this way in the past:

The work which Dr. Theodor Sterling has been doing in connection with air pollution became unusually valuable following the President's transmission on January 31 of an air pollution message to Congress, which you have received, that attempted to implicate cigarette smoking in 95% of lung cancer and 90% of chronic obstructive lung disease. {2002.05, p. 1}

Sterling's work was used to criticize this message.

The tobacco industry continues to fail to disclose its sponsorship of conferences; of the six conferences on ETS known to be sponsored by the tobacco industry, only four openly mentioned industry funding (9).

Reacting to "Undesirable" Results

According to the principles of academic freedom, researchers who work at universities are free to publish the findings of their research in the scientific literature regardless of the outcome of the research. Although tobacco industry—sponsored research organizations have maintained publicly that they do not restrict publication by their researchers, the documents show that they actually did attempt to influence scientific publication.

A document (undated) describing the organization and policy of TIRC, and later CTR, contains the following statement about scientific publication:

Recipients of Tobacco Industry Research Committee grants are assured complete scientific freedom in conducting their investigations and reporting the results of their research in the accepted scientific manner through medical and scientific journals and societies. The investigators receiving grants from the Committee are alone responsible for publishing or reporting their research results [emphasis added]. {1920.01, p. 6}

CTR's behavior regarding publication of results unfavorable to the tobacco industry, however, did not always follow these ideals.

When CTR-sponsored research that was unfavorable toward the tobacco industry was published, CTR had to defend the research to the tobacco companies. In a 1977 memo from Robert C. Hockett, assistant scientific director of CTR, to Addison Yeaman, president of CTR, Hockett attempts to undermine the conclusion of a paper published by C. G. Becker in the Journal of Experimental Medicine (13). Becker's paper concluded that glycoproteins isolated from tobacco leaves produce a substance known to cause allergic reactions and blood clotting. In his memo Hockett claims that Becker did not provide evidence showing that tobacco contains glycoproteins. Therefore,

[A]ll their work on rutin [a glycoprotein] has an obscure and doubtful relevance to the effects of smoke exposure on human subjects. ...

I regard the Becker-Bauer publication, as it appeared, to be very unfortunately premature.

Some of the observations might have been reported legitimately, in a different form, if the extensive speculations had been modified appropriately. {1910.01, p. 2}

Hockett also notes that CTR cannot be held responsible for the publication of Becker's results:

The present paper was seen here [at CTR] only after its submission to and acceptance by the journal. It represented a wide digression from the subject of the grant as we understood it. Our request that credit lines to The Council and to individual persons be deleted was reported to be 'too late' and the paper, with press releases, was published shortly thereafter, to our discomfort. {1910.01, p. 3}

CTR also attempted to turn a CTR-sponsored publication that was unfavorable to the industry into a public relations advantage. When such a publication came out, the tobacco industry publicized the fact that it had encouraged the author's research; it also prepared a response to the work. For example, in response to a paper on smoking as a cause of heart disease, published by CTR grantee Gary Friedman in

the New England Journal of Medicine (14), CTR issued the following public statement:

Grantees are always encouraged to publish their findings. This study reports relationships between various factors and death rates. There isn't any suggestion of cause-and-effect. ... This and so much else in the medical literature just shows that we have a great deal more to learn before we can reach any solid conclusions about smoking. It may or may not be hazardous, and that's where we are. {1916.01}

Influencing Government Policy

The documents reveal at least one instance where a CTR contract monitored by industry lawyers funded work that attempted to directly influence future publication of government documents on public policy related to tobacco and health. In 1967, the US Public Health Service published a study on the health effects of tobacco entitled Cigarette Smoking and Health Characteristics . The documents contain corre-spondence among industry lawyers in which the CTR contract is described as calling "for recommendations concerning the feasibility of a review and public analysis of the PHS report [emphasis added]" {2001.02, p. 1} that would criticize the methods used to collect the data for the PHS report. According to the documents, Theodor Sterling, then at Washington University, convened an "Advisory Panel" to for-mulate such recommendations, funded by a CTR contact to Washington University.

A December 26, 1968, letter from David R. Hardy of Shook, Hardy, and Bacon to the counsels for the tobacco companies describes a letter from Sterling and enclosures. (Neither the letter from Sterling nor the enclosures are among the documents.) Referring to the advisory panel, Hardy states: "I believe that this is perhaps the best work that Professor Sterling has done and it appears that we now have several other distinguished scientists who were members of the panel and who concur in our long held position that the Government's work in these various surveys is not reliable" {2001.01}.

One of the enclosures with Sterling's letter described by Hardy is a summary of the advisory panel's analysis of the PHS study. Sterling states:

It is worth quoting the concluding paragraph in [the summary of the advisory panel's analysis]:

There can be no doubt, however, that the claims made by Cigarette Smoking and Health Characteristics cannot be justified. Neither are the

data of adequate validity and reliability, nor is the analysis of these data properly designed and executed. The problems raised by these unjustified claims ought to be reviewed with the authority of a public body, properly constituted to do so, behind it.

Final recommendations of the [e]valuation group were delayed because of an apparent loss in the mail of comments from one member. These have just been received by me and are enclosed. ... It contains (a) the actual recommendations of the "Advisory Panel", (b) the principal justifications for such recommendations (Cigarette Smoking and Health Characteristicsand PHS claims based on it are examples used to demonstrate why a review procedure is needed ) and (c) minutes of the group's discussions ("not to be distributed outside the sponsoring agency") which bear on many problems in the health area.

The group which Dr. Sterling convened saw little use in going forward with a "definitive evaluation" of the morbidity study, preferring, in the words of the "Status Report" enclosed, to recommend that "a permanent commission needs to be formed for the purpose of establishing a consensus on the results of various studies and what they mean ."

This is an extremely ambitious undertaking and is not dissimilar to other recommendations made in the past. Dr. Sterling feels, however, that simply attacking the morbidity study alone would not cause the Government to withdraw the report nor make any headlines. Sterling believes that a top level advisory group (perhaps working with the [US] President's Science Advisory Committee or under its auspices, for example) would have the necessary prestige to prevent the future publication of documents such asCigarette Smoking and Health Characteristics [italic emphasis added]. {2001.02, pp. 1–3}

Hardy's description makes it clear that the CTR contract was not funded simply to critique the PHS morbidity study; it was intended to stimulate a "public analysis" of the PHS study—an analysis with a government imprimatur. Judged against this goal, Hardy's assessment of Sterling's success is understandable—Sterling's panel went beyond recommending a public analysis of the PHS report, and instead (apparently justifying the recommendation on the basis of alleged flaws in the PHS study) recommended the creation of a high-level government agency (perhaps in the White House) that would divert scientific efforts in an attempt to establish a "consensus on the results of various studies and what they mean" {2001.02, p. 2}. It was Sterling's judgment that such an agency would prevent the publication of future studies on tobacco and disease like the PHS study.

Although Hardy was enthusiastic about the boldness of the advisory panel's recommendation, he was also concerned that creation of a high-level agency could have adverse repercussions for the industry. He stated:

Obviously, there are problems involved in setting up any advisory group where conclusions might be binding on industry. There would certainly be implications involving the present industry-government dialogue. In any event, the very recommendations by Sterling's panel appear to be a condemnation of publication quality control at PHS. {2001.02, p. 3}

The advisory panel's recommendation that the process by which the report was generated be criticized, as well as the data in the report, is similar to a strategy that the tobacco industry has used to criticize the EPA's risk assessment of ETS (15). Seven tobacco industry-affiliated individuals who reviewed the risk assessment criticized the government procedure used to assess risk. In contrast, the independent EPA Science Advisory Board concluded that the risk assessment of ETS was "fully consistent with the risk assessments that [the EPA has] done for many other carcinogens" (1).

Conclusion

The tobacco companies funded special projects through three different funding mechanisms; each funding mechanism was subject to extensive lawyer management of scientific research. The special projects included research projects and consultancies that were for writing critiques of scientific studies on tobacco and health and were not limited to providing expert testimony for the tobacco companies. In addition, the documents reveal that lawyers on occasion influenced research that was not funded by the special projects.

The extensive attorney participation in management of the special projects' research on tobacco and health raises some profound and troublesome questions. Industry attorneys may be expected to participate—as advocates—in arranging and presenting expert scientific testimony in lawsuits, law-making proceedings, and regulatory proceedings regarding tobacco and health. The documents show that the role played by lawyers in scientific research went far beyond their customary roles. Industry lawyers were extensively involved in research and symposia that were not directly related to any particular legal or governmental proceeding. Since lawyers are advocates for a position, the broad (and publicly unacknowledged) participation of lawyers in funding, selecting, monitoring, and evaluating research is strong evidence of the extent to which the industry was, in fact, result oriented in its funding and support of nominally independent scientific work and actively sought to obtain favorable (or "positive") results from research that was pre-

sented as independent scientific work. The result-oriented approach to scientific research revealed by the documents contrasts rather dramatically with the public statements of the industry, which fostered a benevolent image of supporting independent scientific research without attempting to influence the outcome. More fundamentally, the broad role played by lawyers in secretly directing nominally independent scientific research with no apparent relation to particular legal proceedings raises disturbing questions about distortion of the scientific process in order to influence legislators, regulators, and juries who are charged with making decisions based on scientific knowledge. Furthermore, the documents reveal instances in which tobacco industry support was not disclosed by researchers funded by special projects.

The CTR special projects received preliminary judicial scrutiny in a 1992 wrongful death action, Haines v Liggett Group, Inc. , discussed in chapter 7. The court ruled, based in part on the CTR special projects, that the plaintiffs had presented prima facie evidence of fraud by the tobacco companies for purposes of permitting discovery of allegedly privileged tobacco company documents. In discussing the evidence supporting the plaintiff's fraud case, the court's opinion stated:

It now appears that there were a series of research grants designated as "special projects" which were developed in a manner so as to receive the protection of the attorney-client privilege. The "special projects" division was under the auspices of the CTR, although defendants insist that the "special projects" division was managed entirely separately from the CTR. ... The claimed purpose of the "special projects" division was to sponsor research relevant to the links between smoking and disease in order to develop a field of expert witnesses for defensive litigation in tort suits. Consistent with this purpose, defendants' counsel were substantially involved in strategic and specific decision-making within the "special projects" division.

Although defendants represented to the public that research conducted under the auspices of the CTR would be made public, the "special projects" research was not publicized, nor was the existence of the "special projects" division disclosed. In addition to this nominal association between the CTR and tobacco industry, the channelling of selective research proposals into either the CTR or the "special projects" division and the shared research between the two belies defendants' public representations and ongoing defense that the CTR was an independent, objective body [Haines v Liggett Group, Inc. , 140 F.R.D. 681, at 688 (D.N.J. 1992)].

Later, in analyzing the significance of the evidence presented, the court stated:

In the court's opinion, the factual inference arising from the segregation of the "special projects" program and its avowed purpose of generating re-

search for use in defendants' litigation is highly suggestive of the public fraud which plaintiff alleges. The fact that selective research was "siphoned off" into "special projects" protected against disclosure due [to] the claims of privilege, strongly implies that the CTR "special projects" division was an integral part of the CTR's general practice of sponsoring and reporting selective research. Moreover, sharing the special projects, litigation oriented research with the CTR directly counters defendants' representations that CTR published research was independently selected and monitored. According to defendants themselves, the attorney involvement in the special projects program included proposing and monitoring research consistent with defendants' litigation interests. Such commingling of special projects with CTR research directly implicates the special projects program in the alleged ongoing public fraud for which this court has found prima facia evidence [at 694].

The court then noted that the disputed documents themselves constituted even more persuasive evidence of fraud:

This court's own in camera [private] inspection of selected documents has revealed the most explicit admissions that defendants used the special projects program to further the alleged ongoing fraud and deception surrounding the advertised function and operation of the CTR [at 695].

Finally, the court summarized its findings with regard to the special projects documents:

Given plaintiff's theories of fraud, which, if believed by a jury based on the evidence presented, would give rise to liability, after an in camera review of these selected documents, the court is convinced that the only possible conclusion is that the crime/fraud exception applies to these documents. The court finds that there is prima facie evidence that defendants were engaged in an ongoing fraud, and that defendants obtained attorney assistance in furtherance of that fraud through the use of the special projects division [at 697].

This case was later vacated by the US Court of Appeals because of a procedural error unrelated to the specific findings as to fraud [Haines v Liggett Group, Inc. , 975 F.2d 81 (3d Cir. 1992)].

The decision-making process revealed in the documents is unheard of in research programs funded by other sources, such as the National Institutes of Health. The documents confirm that scientific merit played little role in the selection of special projects or consultancies. Instead, grantees were selected by tobacco industry lawyers on the basis of their potential legal or political usefulness to the tobacco industry. Projects or investigators that had the potential to produce data unfavorable to the industry were not funded.

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