Chapter 11
Where Do We Go from Here?
The industry has retreated behind impossible demands for "scientific proof" whereas such proof has never been required as a basis for action in the legal and political fields.
Dr. S. J. Green, head of BAT research and development and a member of the BAT board, 1976 {2231.08, p.1}
The Brown and Williamson documents reveal that the tobacco industry has been amazingly successful in protecting its ability to market an addictive product that kills its customers in epidemic numbers. In 1989 tobacco killed 420,000 smokers and 53,000 nonsmokers in the United States alone (figure 11.1). This toll dwarfs the 20,000 deaths from illegal drugs and 40,000 deaths from AIDS. Nevertheless, at a time when the government spends billions fighting illegal drugs and AIDS, it has yet to mount a serious effort to control tobacco (figure 11.2).
This situation is, however, changing. In recent years there has been a flowering of grass-roots efforts to pass clean indoor air laws, which—as the tobacco industry feared when it successfully opposed California's Proposition 5 in 1978—are undermining the social acceptability of smoking and helping smokers stop. In addition, since 1987 the people of three states—California, Massachusetts, and Arizona—have ignored multimillion-dollar tobacco industry campaigns and enacted, by voter initiative, tobacco tax increases tied to aggressive (and effective) tobacco control programs. Starting in 1994 several states mounted legal action to recover the hundreds of millions of dollars the tobacco industry costs taxpayers in medical costs, and the private bar is organizing a new wave of products liability lawsuits against the industry. At the federal level, in 1992 the Environmental Protection Agency firmly established that tobacco smoke is air pollution, and in 1995 the Occupational Safety and Health Administration and the Food and Drug Administration started regulatory action on tobacco smoke as a workplace toxin and nicotine as an addictive drug, respectively.
FIGURE 11.1. Tobacco kills many times more people than all other preventable causes of death.
Active smoking is the leading preventable cause of death, and passive smoking is the third
leading preventable cause of death (1). From S. Glantz, Tobacco: Biology and Politics .
Waco, TX: HealthEdCo, 1992.
As promising as these efforts are, the tobacco industry is well practiced, resourceful, and highly motivated to mount a vigorous defense. The documents discussed in this book give the first clear view into the sophisticated knowledge the industry had developed—years before the general scientific community—about nicotine pharmacology and the health dangers of smoking. Moreover, they illuminate how, despite the crushing scientific evidence against tobacco, the industry has successfully mustered legal, political, and public relations talent to deny and obfuscate the science. In this effort the industry has been assisted by a small group of scientists—both inside and outside the industry—who served the industry's economic, political, and legal needs.
The role of lawyers in selecting research projects and methodologies and controlling the dissemination of results is, perhaps, the most important insight offered by the documents. The industry's increasing reliance on lawyers to manage research reveals an industry policy toward research that was adversarial and elevated advocacy over objectivity. By putting lawyers in charge of scientific research, the tobacco companies
FIGURE 11.2. Despite causing many more deaths than illegal drugs, AIDS, or other preventable
causes of death, tobacco control receives relatively little attention by the federal government (2).
From S. Glantz, Actual causes of death in the United States, JAMA 1994;271:660.
effectively adopted a research policy that had nothing to do with finding out and disseminating the truth about the health effects of tobacco or with sponsoring truly independent research on that subject. It had everything to do with protecting the political and legal position of the industry and protecting its profits.
Lawyers were involved in decisions about what research to do and how to do it. For example, industry lawyers played a key decision-making role in the design of experiments related to cancer, such as the investigation of the additive Chemosol, which was thought to reduce the carcinogenicity of cigarette smoke. Initially, lawyer rationales favored serious research into the causation and addiction hypotheses. As the results clearly demonstrated that tobacco causes cancer and other diseases, enthusiasm for such research waned among lawyers. They seemed afraid that in-house or sponsored research would either directly confirm that smoking is addictive and causes disease or provide indirect confirmation by, for example, using methodologies that the tobacco companies
would prefer to claim were unreliable. Ultimately, the lawyers made active efforts to stop research that might turn "sour," even if that research had scientific merit. Lawyers also designed elaborate procedures to prevent BAT research results from becoming "known" to B&W, so that B&W could continue to claim that it did not accept the causation and addiction hypotheses.
The tobacco companies appear to have used lawyers as part of a conscious effort to contain the dissemination of scientific information that might be adverse to the companies' economic and legal interests. Most of the documents reflecting lawyer participation in managing research were explicitly marked "confidential" or subject to attorney-client or work-product privilege. This practice had the effect of concealing the extent of lawyer participation in managing research, contrary to the industry's assurances that its support of scientific work was disinterested and subject to peer review procedures by objective scientists. It also enabled the industry to use a confidential conduit for funds provided to nominally independent outside scientists, and it enabled the industry to suppress adverse results by cloaking the work in attorney-client privilege or work-product privilege.
Finally, the documents suggest that in some instances the companies relied on lawyers to keep research results away from the United States if they had been produced by industry scientists and confirmed the causation and addiction hypotheses. The documents reveal instances in which lawyers were involved in removing documents labeled "deadwood" from company files and actually recommended that adverse data be destroyed. Such conduct is inconsistent with the companies' professed interest in the scientific truth about smoking and disease.
Just as the attitudes and roles of the lawyers evolved over the thirty years spanned in the documents, so did the roles of the scientists. In the 1960s they had frank discussions about nicotine addiction and the carcinogenic nature of cigarette smoke, and they tried to develop a cigarette that would deliver an acceptable dose of nicotine but would avoid the cancer risks caused by smoking. The scientists also focused on specific compounds, such as polycyclic aromatic hydrocarbons and phenols, as the bad actors in cigarette smoke. Their work was almost entirely scientific in nature, and there was little mention of marketing considerations.
By the late 1970s the adverse health consequences of smoking had been conceded, although efforts to make a less "biologically active" cigarette were continuing. Specifically, the scientists were trying to measure and remove or neutralize potent carcinogens, such as nitrosamines, as
well as other toxins, including hydrogen cyanide and carbon monoxide, from cigarettes. This work caused real problems for the lawyers, who were worried about what to do with the more "biologically active" products. Sophisticated research continued in the areas of nicotine pharmacology and the effects of nicotine on the central nervous system. Sidestream smoke began to emerge as an issue in the early 1970s, and by the early 1980s considerable research was being conducted in this area—for instance, research related to perceptions of smoking by nonsmokers and smokers as well as research on how to make a cigarette with less visible sidestream smoke.
By the 1980s the scientists' subservience to the lawyers was complete. Before they proceeded to work in potential areas of investigation, they would check with the lawyers. The use of scientific approaches to marketing also became much more prominent.
In vigorously pursuing the development of a "safe" cigarette while at the same time continuing to market cigarettes that they knew were dangerous, cigarette company executives could say to themselves and their boards that they were doing the very best they could to do the right thing. Was this true? After all, the products they were selling and profiting from continued to cause illness and death in an enormous number of their best customers year after year after year. The January 1954 "Frank Statement" advertisement declared that the health of its customers was the industry's "paramount concern," rising above every other aspect of the business (figure 2.1). But if health really was their primary concern, the only ethical course for B&W and BAT (and, presumably, the rest of the tobacco industry)—given the scientific data available to them in the mid-1960s—would have been to withdraw their products from the market until safe ones could be reintroduced. Likewise, they would have disclosed—not withheld—their scientific results on nicotine addiction and tobacco smoke carcinogenicity to the Surgeon General's Advisory Committee in 1963.
The same dynamic continues today. In 1994 R. J. Reynolds announced a novel product called Eclipse, which, according to newspaper accounts, delivers a nicotine aerosol to the smoker together with lower levels of other toxins than cigarettes deliver in their smoke. This product, like Reynolds's Premier in the 1980s, was based on the same general technology as was developed in BAT's Project Ariel, which, in turn, grew out of research into making cigarettes safe that had been pursued in a conscientious manner by BAT in the 1960s. Does R. J. Reynolds
plan to withdraw Camel, Winston, and Salem cigarettes and replace them with Eclipse? Not at all. If the industry can make a substantially less dangerous product, why does it not cease marketing the more dangerous ones that are presently being sold?
While the tobacco industry has earned the bulk of the credit—or blame—for successfully continuing to market its products over the last forty years, the role of the health and scientific community also bears comment. In 1963, the year before the original Surgeon General's report was published, there was genuine panic in the industry. The tobacco companies' executives feared that the health community would use the 1964 Surgeon General's report to force decisive government action to curb the industry. Unfortunately for public health, the feared decisive action by the health community never materialized, and the industry was allowed time to regroup and mount the effective campaign reflected in the documents. While the health community has become more active in tobacco control in recent years, it still does not devote the resources—either financial or institutional—required to achieve effective control over tobacco. The industry's efforts to create "controversy" continue to work to this day.
The documents reveal that the tobacco industry effectively manipulated the terms of debate in the scientific and legal communities in a way that led to an obsessive concern about "causality," to the exclusion of common sense. In 1976 Dr. S. J. Green, head of BAT research and development and a member of the board, wrote a thoughtful essay entitled "Cigarette Smoking and Causal Relationships," which addresses this point:
The public position of the tobacco companies with respect to causal explanations of the association of cigarette smoking and diseases is dominated by legal considerations. In the ultimate companies wish to be able to dispute that a particular product was the cause of injury to a particular person. By repudiation of a causal role for cigarette smoking in general they hope to avoid liability in particular cases. This domination by legal consideration thus leads the industry into a public rejection in total of any causal relationship between smoking and disease and puts the industry in a peculiar position with respect to product safety discussions, safety evaluations, collaborative research, etc. Companies are actively seeking to make products acceptable as safer while denying strenuously the need to do so. To many the industry appears intransigent and irresponsible. The problem of causality has been inflated to enormous proportions. The industry has retreated behind impossible demands for "scientific proof" whereas such proof has never been required as a basis for
action in the legal and political fields . Indeed if the doctrine were widely adopted the results would be disastrous. I believe that with a better understanding of the nature of causality it is plain that while epidemiological evidence does indicate a cause for concern and action it cannot form a basis on which to claim damage for injury to a specific individual [emphasis added]. {2231.08, p. 1}
Green concludes with an opinion that makes the very point upon which state lawsuits seeking recovery of medical care costs are based:
In summary, for social policy purposes it is sensible and totally relevant to use the experimental evidence pertaining to large groups and also to select the simplest hypothesis. It may therefore be concluded that for certain groups of people smoking causes the incidence of certain diseases to be higher than it would otherwise be [emphasis added]. {2231.08, p. 4}
It remains to be seen whether the medical, public health, legal, and political systems will muster the courage and resources to act on this fact and hold the tobacco companies accountable for the havoc their products cause.
In the meantime, every day 3,000 American children will become addicted to nicotine, and another 1,300 smokers and nonsmokers will die.
References
1. Glantz S. Tobacco: Biology and Politics . Waco, TX: HealthEdCo, 1992.
2. Glantz S. Actual causes of death in the United States (letter). JAMA 1994;271:660.