"An Aggressive Posture": B&W's Legal Department
Just as the tobacco industry's public relations personnel were struggling to develop a strategy for responding to the Surgeon General's report, industry lawyers were analyzing its legal implications—specifically, how to ward off potential lawsuits accusing the tobacco companies of failing to warn consumers about the dangers of smoking once the Surgeon General had issued a statement stating that cigarettes were dangerous to health.
One of the documents {1802.05} describes a strategy proposed by Addison Yeaman, who was B&W's vice president and general counsel at the time. Yeaman's main suggestion is that the industry should engage in a massive program of scientific research to identify and remove any carcinogens present in tobacco smoke. Yeaman begins by stating that his comments are based on an assumption that the Surgeon General's report will conclude that there is a link between smoking and cancer. He recommends that the industry respond by financing an elaborate research campaign to make cigarettes less harmful. While making this suggestion, however, he implies that he believes cigarettes are, in fact, harmful to health.
We must, I think, recognize that in defense of the industry and in preservation of its present earnings position, the industry must either a) disprove the theory of causal relationship or b) discover the carcinogen or carcinogens, cocarcinogens, or whatever, and demonstrate our ability to remove or neutralize them. This means that we must embark—in whatever form of organization—on massive and impressively financed research into the etiology of cancer as it relates to the use of tobacco. ... Certainly one would hope to prove there is no etiological factor in smoke but the odds are greatly against success in that effort. At the best, the probabilities are that some combination of constituents of smoke will be found conducive to the onset of cancer or to create an environment in which cancer is more likely to occur [emphasis added]. {1802.05, p. 1}
Yeaman then explains why the Tobacco Industry Research Committee (TIRC), which had ostensibly been created by the industry to fund research into the health effects of smoking, would not be appropriate for the type of research program he is proposing.
[TIRC] was conceived as a public relations gesture and (however undefiled the Scientific Advisory Board and its grants may be) it has functioned as a public relations operation. ... I suggest that for the new research effort we enlist the cooperation of the Surgeon General, the Public Health Service, the American Cancer Society, the American Heart Association, American Medical Association and any and all other responsible health agencies or medical or scientific associations concerned with the question of tobacco and health. The new effort should be conducted by a new organization lavishly financed, autonomous, self-perpetuating, and uncontrolled save that its efforts be confined to the single problem of the relation of tobacco to human health [emphasis added]. {1802.05, p. 2}
At first glance, Yeaman's statements appear to be motivated by a genuine desire to develop a "safe" cigarette. He later makes clear, however, that a motivation behind this proposal is to allow the industry to be more vocal in its attacks on scientific research suggesting a causal link between smoking and disease.
[To engage in the proposed research campaign] would, I suggest, free the industry to take a much more aggressive posture to meet attack. It would in particular free the industry to attack the Surgeon General's Report itself by pointing out its gaps and omissions, its reliance on statistics, its lack of clinical evidence, etc., etc. True we might worsen our situation in litigation, but that I would risk in contemplation of the greater benefits to be derived from going on the offensive. {1802.05, p. 2}
Yeaman is saying that B&W can both do good and do well: develop a safe cigarette to meet critics on positive turf.
This new offensive strike, Yeaman argues, should be carried out by a stronger and more aggressive Tobacco Institute in response to any regulation that might be imposed following release of the Surgeon General's report—for instance, stricter regulation of advertising and requirements for warning labels or content labels.
To meet these threats, which will arise not merely at the Federal but at the state level as well, the Tobacco Institute is available but it can be effective only if the industry abandons its timorous approach to the Institute as a functioning trade association. {1802.05, p. 3}
Furthermore, Yeaman recommends that the industry voluntarily agree to use warning labels on its products in order to protect itself from future litigation.
The question immediately arises: how would such aggressive posture affect litigation? With one exception (Green v. American Tobacco Co.) those actions which have gone to judgement were won by the defendants on the defense of assumption of risk. The issuance of the Surgeon General's Report will, in my opinion, insure the success of that defense as to causes of action arising in the future if the industry can steel itself to issuing a warning . I have no wish to be tarred and feathered, but I would suggest that the industry might serve itself on several fronts if it voluntarily adopted a package legend such as "excessive use of this product may be injurious to health of susceptible persons " and would embody such a legend in pica in its print advertising. This is so controversial a suggestion—indeed shocking—that I would rather not try to anticipate the arguments against it in this note but reserve my defense [italic emphasis added]. {1802.05, p. 3}
Yeaman continues his memo by reviewing the likely conclusions of the Surgeon General's report and by reflecting further on how the industry should respond.
But cigarettes—we will assume the Surgeon General's Committee to say—despite the beneficent effect of nicotine, have certain unattractive side effects:
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We challenge those charges and we have assumed our obligation to determine their truth or falsity by creating the new Tobacco Research Foundation [the hypothetical new research agency]. In the meantime (we say) here is our triple, or quadruple or quintuple filter, capable of removing whatever constituent of smoke is currently suspect while delivering full flavor—and incidentally—a nice jolt of nicotine. And if we are the first to be able to make and sustain that claim, what price Kent? [italic emphasis added]. {1802.05, pp. 4–5}
Yeaman concludes by stating that, if B&W were able to develop a "safe" cigarette, it would be morally obliged to make that knowledge available to other companies. However, he adds, the most important thing is that "we get there firstest with the mostest" {1802.05, p. 5}.
The notion that tobacco companies should engage in certain types of research for legal or political reasons is echoed in another document from the same era. This letter, dated January 2, 1964, and addressed to B&W's president, is marked "private and confidential." Unfortunately, the signature at the end is illegible. However, the return address is BAT's Millbank office, and the contents of the letter suggest that it was written by someone fairly high up in BAT's corporate structure, because it recommends that B&W consider conducting biological tests in case the company is called to testify about the health effects of its products.
We have been coming to the view that Brown & Williamson, and possibly other Companies in the [BAT] Group, should pay more direct attention to biological tests. We have been fortified in this view by the recent visit of Mr. [Ed] Jacob [of the law firm Jacob and Medinger] who referred to the possibility of a Congressional enquiry at which various cigarette companies might be called upon to testify as to the real efficacy of their filters and the methods by which such efficacy has (or has not) been established. . . .
I suggest that in view of the repeated Industry statements that more research is needed and is being undertaken, and with an eye to a possible Congressional enquiry, you might have more to gain than to lose. {1804.01, p. 1}
These tests would demonstrate that the companies are doing everything they can to provide a "safer" product to their customers.
Of course this whole question of biological testing is a very difficult one and in the present state of ignorance of the real causes of cancer and other diseases allegedly connected with smoking (a state which may continue for a long time) any work undertaken must be with a commercial or political motive as well as a scientific motive . In other words, we should like to be able to say that certain of our cigarettes provide smoke in which certain suspect ingredients have been diminished, and that the smoke from these cigarettes has been scientifically proved to produce less change than other cigarettes on animal tissues. From this would follow the conclusion that in the light of all available knowledge, the Company is doing its best to supply a 'safer' smoke [emphasis added]. {1804.01, pp. 1–2}
Although B&W's lawyers initially supported research efforts to develop a safe cigarette and to study the carcinogenicity of their products in biological tests, they later changed their philosophy and strongly urged
the company not to engage in any research that could produce damaging results.