As Part of the Effort to Make Less Hazardous Cigarettes, Defendants Experimented with General and Selective Reduction

General Reduction

¶1796. The technique of general reduction attempts to reduce the inherent risks of cigarette smoking by decreasing the levels of all mainstream smoke constituents. Townsend WD, 79:5-9.

694

¶Since the 1950s, the Defendant cigarette manufacturers have developed and implemented means for general reduction in commercial cigarettes. Townsend WD, 79:10-16; Whidby WD, 29:4-30:1. Coggins, United States Dep. 6/27/02, 23:2-14.

¶1797. The general theory behind across the board filtration stems from a basic toxicology principle that "less ought to be better." Townsend WD, 80:9-18. In other words, if the smoke yield is reduced, a smoker's exposure to smoke will be reduced, and the smoker's health risks will also be reduced. Id.

¶1798. Successful general reduction techniques include the use of more efficient filters, the use of processed tobacco labeled reconstituted tobacco; the use of processed tobacco labeled expanded tobacco; reduction of the circumference of the cigarette which leads to burning less tobacco; the use of filter ventilation; the use of porous cigarette paper; and the use of faster burning papers. Townsend WD, 85:1-86:3 (discussing JDEM 060489). All of the cigarette manufacturing Defendants have used each of these general reduction techniques in cigarettes that are sold commercially. Townsend WD, 86:4-6; Townsend TT, 10/7/04, 1856-24-1857:8.

¶1799. Since the 1950s, the medical, scientific, and public health communities have offered guidance or suggestions about worthwhile general reduction techniques which should be explored. Townsend WD, 80:19-82:19; Robinson, United States Dep., 11/13/03, at 293:12-295:23; (no bates) (JD 000826 at 43). In the 1960s, Drs. Ernst L. Wynder and Hoffman stated that the "most important first step toward the reduction of the tumorigenic and cilia-toxic activity of cigarette smoke" was to encourage the cigarette industry to manufacture and promote cigarettes with low tar and nicotine levels. Townsend WD, 81:11-14; see also (no bates) (JD 000742 at 535).

695

¶1800. Since the cigarette manufacturer Defendants developed and incorporated various techniques for the general reduction of mainstream smoke constituents, there has been a 60% reduction in total amount of mainstream smoke generated from each cigarette on a sales-weighted average basis, as measured by the FTC method. Townsend WD, 79:12-16; Farone TT, 10/12/04, 2042:9-18.

¶1801. As noted, the use of filters is one way that cigarette companies are able to achieve a general reduction of cigarette smoke. Cigarette filters trap smoke particles through a variety of physical mechanisms in order to achieve substantial reductions in the yields of tar and nicotine. Townsend WD, 86:14-17; see also (no bates) (JD 000682 at 321-22).

¶1802. Although it is possible to design a filter that has 99.9-plus percent removal efficiency, Townsend WD,89:23-90:3, these have not been proven to be acceptable to consumers because they are very difficult to draw smoke from. Id.; see also 501543929-3943 at 3941 (JD 060075).

¶1803. Another general reduction technique is the use of reconstituted tobacco sheet ("RTS"). Townsend WD, 90:5-12. Reconstituting tobacco was a process invented in the late 1940s. It collects the small pieces of tobacco that are generated through the processing of tobacco, but are too small to be used in cigarettes. Id. Small pieces of lamina, tobacco dust, and tobacco stems are used in manufacturing reconstituted tobacco. These materials are placed into a centrifuge to which water is then added. The water extracts materials from the tobacco, including nicotine and flavor components, which are separated from the pulp that is created by the centrifuge. The tobacco pulp is then made into paper and the materials that were separated from the pulp are reapplied to the paper. This sheet is then dried and cut into pieces that can be used in cigarette manufacturing. Townsend WD, 91:2-11 (discussing JDEM 060507).

696

¶1804. The nicotine content of RTS is far less than that of the components that initially go into its making. Townsend WD, 92:8-14. In addition to having lower tar and nicotine yields, reconstituted tobacco, when burned, produces tar with lower biological activity. Townsend WD, 92:18-23.

¶1805. Another approach to the general reduction of smoke yields is to burn less tobacco. At various times since the 1950s, Defendants have reduced the circumference and length of the tobacco rod of their commercial cigarettes. Townsend WD, 94:4-6. As a result, less tobacco is used to fill the rod. With less tobacco available to be burned, the tar and nicotine yields of cigarettes are reduced. Townsend WD, 93:21-22; see also Townsend WD, 94:22-95:4.

¶1806. In addition, Defendants use expanded tobacco. Townsend WD, 94:7-10; 500965533- 5569 (JD 060222). To expand tobacco, it is placed in carbon dioxide under very high pressure, which is then quickly released. The carbon dioxide escapes from the tobacco and actually expands its size, much like what happens with popcorn. Townsend WD, 94:12-18. The larger volume of expanded tobacco allows defendants to use less tobacco per cigarette, leading to an overall reduction in tar and nicotine yields. Townsend WD, 94:22-95:4; Mosberg, United States Dep., 4/23/02 at 151:25-152:18.

¶1807. Air dilution, through use of filters and porous paper, is another general reduction technique employed by the cigarette manufacturing Defendants. Townsend WD, 97:3-6. The introduction of air into the cigarette via these techniques reduces the amount of tobacco that is burned because less air is drawn through the tobacco column. Consequently, total smoke yields are reduced. Townsend WD, 98:9-12. The cigarette manufacturer Defendants have been using air diluted filters in commercial cigarettes since the 1950s and 1960s. Townsend WD, 98:13-20.

697

¶1808. Filter ventilation refers to the placement of perforations or vent holes in a cigarette filter. When a smoker or a smoking machine smokes the cigarette, air is drawn from the outside through the holes. That air from the outside mixes with the smoke thereby diluting it and reducing the tar and nicotine yields.20 Townsend WD, 97:10-98:4.

¶1809. Defendants have also increased paper porosity, an air dilution technique that functions similarly to filter ventilation. Townsend WD, 98:5-8. With this technique, the cigarette paper wrapping the tobacco rod can be made very porous so that more fresh air enters the tobacco during puffing, diluting the smoke. Id. The public health community has supported the use of porous paper as a method of reducing tar and nicotine yields, as well as certain gas phase components. (no bates) (JD 000866 at 454-455).

¶1810. Significant reductions in mainstream smoke constituents have been realized by use of the general reduction techniques discussed above. Townsend WD, 103:19-23. For example, Reynolds's Winston cigarette in the mid-1950s yielded approximately 38 milligrams of tar per cigarette. Today's Winston, by virtue of various general reduction techniques such as improved filters, longer filters, porous paper, circumference reduction, and use of expanded tobacco, now yields approximately 15 milligrams per cigarette. Townsend WD, 102:1-103:4 (discussing JDEM 060493); see also 512784375-4400 (JD 060155); 51157877-7916 (JD 062534).

Selective Reduction

¶1811. Since the 1950s, Defendants have also employed selective reduction techniques to develop potentially less hazardous cigarettes. Townsend WD, 22:6-13. See also id. at 31:1-33:2,

698

¶40:15-41:2, 42:20-43:2; Whidby WD, 29:4-12; 30:17-19. The theory behind selective reduction is that, if a compound in cigarette smoke which is responsible for the inherent health risks of smoking is reduced or eliminated, the health risks of smoking should decrease. Townsend WD, 32:12-21; see also id. at 44:1-6.

¶1812. Cigarette smoke is composed of thousands of compounds which exist in very low amounts. Id. at 35:14-18; 38:1-7; 44:9-12; see also Farone TT, 10/6/04, 1719:8-1721:25. For that reason, efforts to develop less hazardous products through selective reduction have proven difficult. In addition, efforts to reduce certain constituents or compounds can actually cause an increase in other harmful constituents or compounds.

¶1813. Over the past 50 years, Defendants have attempted to reduce selectively Benzo(a)pyrene, phenols, ciliastats, and tobacco-specific nitrosamines ("TSNAs"), among many others, because these compounds are proven to be hazardous to smokers. Townsend WD, 44:13- 73:2. While the attempts to incorporate these selective reduction techniques in many commercial cigarettes have not won consumer approval, the following facts demonstrate the substantial efforts Defendants have made to research and utilize selective reduction in order to manufacture potentially less hazardous cigarettes.

Defendants' Efforts to Reduce Benzo(a)pyrene

¶1814. Benzo(a)pyrene ("BaP") is formed from the cigarette combustion mechanisms that take place during smoking. BaP is only one of the many polycyclic aromatic hydrocarbons (PAHs) present in cigarette smoke. Robinson, United States Dep., 11/13/03, 255:8-22.

¶1815. Defendants have attempted to remove or reduce selectively both BaP and other PAHs. Id. at 22:14-23:15, 46:11-47:9, 49:3-12, 51:20-52:2, 54:21-56:3; Rodgman, United States Dep.,

699

¶6/26/02, 227:7-229:23; (no bates) JD 060507; Lilly, United States Dep., 5/14/02, 145:5-146:3; Lilly, United States Dep., 5/15/02, 73:24-75:3; Farone TT, 10/6/04, 1693:16-1694:19; 1001532403 (US 35549); 1001532384-2388 at 2385 (US 35548); 1004858161-8166 at 8163 (US 35920); Robinson, United States, Dep., 11/12/03, 209:3-12; 213:7-25; 214:1-10; 255:8-22.

¶1816. Lorillard became interested in reducing the levels of benzo(a)pyrene in cigarette smoke after the noted researcher, Dr. Wynder, suggested that it might be responsible for the biological effects of cigarette smoke condensate observed in mouse skin-painting experiments. Robinson, United States Dep., 11/12/03, 213:7-25. In the 1950s, Lorillard engaged in collaborative research efforts with Drs. Wynder and Hoffman, and sponsored research at Armour Research Foundation, in an effort to determine how to reduce levels of benzo(a)pyrene in cigarette smoke. Robinson, United States Dep., 11/12/03, 209:3-12. However, Drs. Wynder and Hoffman found that adding nitrates to cigarettes reduced BaP, but increased tobacco-specific nitrosamines, which are carcinogenic compounds. Townsend WD, 23:9-15.

¶1817. Lorillard eventually developed technologies associated with reconstituted leaf, puffed tobacco, filter technology and some paper technology that substantially lowered those BAP levels. Robinson, United States Dep., 11/12/03, 214:1-10.

Defendants' Efforts to Reduce Phenols Through Use of Charcoal Filtered Cigarettes

¶1818. Phenols are a group of toxic, volatile compounds in cigarette smoke which act as tumor promoters. Townsend WD, 52:17-53:2; JD 000742 (at 231).

¶1819. Defendants have worked to remove or reduce phenols and have competed in development of product innovations that might accomplish this goal. Townsend WD, 53:5-6, 52:2253:2; (no bates) JD 060241; Wakeham, Hoberman and Hulse Dep., 9/26/97, 88:5-89:11, 89:20- 90:16; (no bates) (US 22034); Robinson, United States Dep., 11/12/03, 211:8-212:1, 212:4-18; 213:2-6. For example, Defendants have used carbon and cellulose acetate filters to remove some of the more volatile phenols. Townsend WD, 54:21-55:3, 55:9-12; Whidby WD, 66:17-19.

700

¶1820. In the early 1960s, Lorillard came out with its phenol-reducing filter. On May 23, 1962, Lorillard announced that "Kent had a new filter with a 90% efficiency for phenol." Harris WD, 107:7-11. Thereafter, Lorillard actively and continuously promoted the potential health advantages of its phenol-reducing filter in its advertising and "persisted in advertising the health advantages of the phenol-reducing process in its new Micronite filter." Id. at 110:5-14.

¶1821. BATCo and Brown & Williamson also researched phenol reduction. In 1962, the BAT Group convened a conference of its affiliated companies, including Brown & Williamson, to discuss strategy for reduction of phenols. 107468730-8764 (US 20252). In the early 1960s, Brown & Williamson scientist R.B. Griffith developed a prototype three-part filter -- consisting of a Millecel gray paper filter treated with potassium carbonate, a charcoal center section, and mouthpiece including cellulose acetate treated with a plasticizer -- aimed at removing phenols as well as other gas phase compounds and particulate matter. 01124441-4444 (US 22034).

¶1822. Defendants have researched and designed charcoal-filtered cigarettes in order to reduce phenols. Charcoal filters were first introduced in 1954 in American Tobacco's Tareyton cigarette, and quickly became a focal point of selective reduction efforts when, in 1962, researchers

701

¶Ernst Wynder and Dietrich Hoffman published an article stating that reduction of phenols in cigarette smoke would be a good path to take to reduce the risks of cigarette smoking. Harris TT, 10/18/04, 2784:14-18. As discussed in more detail below, after the publication of Wynder's article, Defendants marketed a series of charcoal filtered products that were commercially available throughout the 1960s. Harris TT, 10/18/04, 2784:22-2785:2.

¶1823. For example, Brown & Williamson tested and marketed Avalon, which utilized charcoal filters, but the product was quickly withdrawn. (no bates) (JD 010580). Brown & Williamson reported one of the "most frequent criticisms of smoke quality of the AVALON samples" was that "there is a taste associated with carbon [charcoal] filters." Id.

¶1824. The marketing of charcoal filters was hampered by FTC regulations which prohibited unsubstantiated health claims and prevented Defendants from informing consumers of potential benefits from the reduced exposures or deliveries offered by charcoal filters. In fact, the FTC publicly expressed its reservations about statements regarding reduced exposures or deliveries offered by charcoal filters. In its June 30, 1967 Report to Congress, the FTC complained about alleged "comparatively overt attempts to allay health anxieties . . . made by manufacturers of charcoal filtered cigarettes . . . creating the impression that these filters prevent the passage of tars and gaseous effusions." 92382035-2095 at 2058 (US 57179). Consequently, Defendants did not feel free to communicate the potential health benefits of charcoal filtered cigarettes. Had such benefits been communicated, consumer acceptance might have been higher despite the unpleasant taste associated with the filters. Townsend WD, 26:16-27:2; 27:16-28:4; (no bates) (US 342223); (no bates) (US 20092 at 2).

702

¶1825. Each Defendant has, at one time or another, marketed a charcoal-filtered cigarette, and charcoal filtered cigarettes remain in the marketplace today. Farone TT, 10/6/04, 1747:14-20.

Philip Morris

¶1826. In 1964, Philip Morris test marketed the Saratoga cigarette, which used a charcoal filter and which was, in the view of a Philip Morris researcher, "superior to anything in the market place" from a health standpoint. Results of research Philip Morris conducted in 1969 on the biological effects of whole fresh smoke and the gas phase of cigarette smoke in unfiltered and charcoal-filtered cigarettes included the finding that, "[c]arbon filters effectively reduce the biologically active components of smoke." 1000036347-6366 at 6354 (US 20070). Philip Morris discontinued production in 1964 after the initial phase of testing, citing poor taste and lack of consumer acceptance. 1000307159-7164 at 7160-61 (US 20092).

¶1827. When Philip Morris introduced the Saratoga brand, it did not advertise its potential for harm reduction because it feared that an explicit health claim would violate the 1955 FTC Cigarette Advertising Guides. Harris TT, 10/18/04, 2790:24-2791:3. In an October 18, 1964 presentation, Helmut Wakeham, Philip Morris's Director of Research, told the Board of Directors:

With these [invivo mucus flow and respiratory dynamics] tests as criteria we did put together a charcoal filter product with performance superior to anything in the market place. That product was known as Saratoga. Physiologically it was an outstanding cigarette. Unfortunately then after much discussion we decided not to tell the physiological story which might have appealed to a health conscious segment of the market. The product as test marketed didn't have good 'taste' and consequently was unacceptable to the public ignorant of its physiological superiority.

Strenuous efforts by Manufacturing, Leaf, and R & D to improve the taste of Saratoga were underway when the Smoking and Health Report was issued. These efforts resulted in Philip Morris USA Multifilter which has both good taste and good physiological

703

performance and which was introduced into the market place last spring.

For this product we did embark on a publication and endorsement program but it was, I fear, a case of "too little and too late." The imposition of FTC rules and the Industry Advertising Code took the starch out of the program although we did make an oral presentation of the mucus flow results at a scientific meeting in Chicago.

¶(no bates) (US 20092 at 1-3).

¶1828. Even though the Saratoga cigarette was initially withdrawn from test market, it was re-introduced to the national market as the Philip Morris Multifilter cigarette in 1964 after efforts were made to improve the taste of the cigarette. Farone, TT, 10/06/2004, 1747:21-23. The Multifilter, which differed somewhat from Saratoga, utilized both charcoal and cellulose acetate [a synthetic adhesive]. Farone TT, 10/06/2004, 1748:7-16. On March 19, 1964, Philip Morris issued a press release regarding the introduction of Multifilter in Lexington, KY. 2010020100-0102 (JD 041241) (APO). The press release contained information regarding the presence of activated charcoal granules in the filter but did not contain any explicit health claim because of the FTC Cigarette Advertising Guides. According to the press release, the Multifilter package had a special insert describing the action of the multi-filter system.

¶1829. Philip Morris's Multifilter went on the market in 1964. In 1972, its name was changed to Benson & Hedges Multifilter. That product, utilizing a charcoal filter, is still on the market today. In addition to the Benson & Hedges Multifilter, Philip Morris has other cigarette brands on the market which utilize charcoal filters, including Parliament Light 100s, Lark, and Lark Lights. Farone TT, 10/06/2004, 1759:17-1760:16.

704

¶1830. Philip Morris has claimed that consumers frequently complain about the poor taste of carbon filter cigarettes. However, in April 1984 Philip Morris reported on a Public Opinion Liking ("POL") Study, a consumer test regularly utilized by Philip Morris to evaluate potential new cigarette brands, that compared a regular Merit cigarette to one utilizing a charcoal filter. The purpose of the study was "[t]o determine consumer acceptability of Merit 85mm with charcoal filter relative to control Merit 85mm." The POL Study Leader summarized the results:

The results, based on this sample of the control and experimental cigarettes, indicate that the experimental cigarette [the version with the charcoal filter] was preferred and rated significantly higher on the qualitative attributes by the Merit 85mm and Merit Ultra Lights 85mm smokers. These results support previous results from a Richmond Product Placement Panel test . . . run in 1976.

¶2075008054-8067 at 8054 (US 87572).

¶1831. Philip Morris's product development efforts involving charcoal filter technology continue to this day with the SCoR project. In the late 1990s, Philip Morris undertook its SCoR program to develop a conventional looking, lit-end cigarette product that removes certain harmful constituents from the cigarette smoke. To accomplish the intended reduced deliveries, Philip Morris included a plug-space-plug filter -- whereby activated carbon is sandwiched in the space between two "plugs" of another filter material. See Alonso PD, United States v. Philip Morris, 7/11/03, 74:24-75:16; 75:18-77:4. In the late 1960s and early 1970s, Philip Morris researched precisely this plug-space-plug design utilizing charcoal. 1000320914-0914 (US 88024) (March 1970 document concerning plug-space-plug filter using carbon, stating that "project is economically feasible"); 1000320619-0619 (US 88025); 2028631322-1339 (US 88022) (November 1974 report); Farone WD, 167:1-8 ("There is nothing in [SCoR] that represents a new technical breakthrough that was not available in 1980, as far as I've seen."). At the time the trial began, Philip Morris had not yet test-marketed any SCoR product. Szymanczyk WD, 172:9-11.

705

R.J. Reynolds

¶1832. Reynolds introduced a carbon filer cigarette, Tempo, in 1964. Townsend WD, 58:18- 20. At the time, carbon-filtered cigarettes had less than 5% of the cigarette market. Townsend TT, 3/8/05, 14679:7-8.

¶1833. After nearly 15 years on the market, Tempo was withdrawn by Reynolds in 1980 due to its lack of consumer acceptance and sales. Townsend TT, 3/8/05, 14679:15-17, 14689:3-9. Although Tempo had achieved approximately .4% of the market when it was launched, after about three to five years on the market, it began a substantial decline to the point where its share of the market was negligible. (no bates) (JD 000879); Townsend TT, 3/8/05, 14686:21-14687:13.

¶1834. Reynolds continues to research the commercial viability of carbon-filtered cigarettes. Townsend WD, 61:22-62:2.

Lorillard's York Cigarette

¶1835. Lorillard began marketing its York charcoal filter cigarette in 1963. Coggins, United States Dep., 6/27/02, 122:14-21.

¶1836. Lorillard analyzed numerous issues relating to carbon filtration, including: (a) carbon types; (b) effect of plasticizers and binders; (c) effects of carbon weight on efficiency; (d) effects of location on the carbon section within the cigarette filter; (e) effects of aging on carbon filtration; (f) efficiency of carbon filters for volatile smoke components; (g) spectrum of smoke components affected by carbon; (h) properties of carbon which affect its selectivity toward cigarette smoke components; and (I) taste and aroma issues related to charcoal filters. 01242068-2118 at 2085-2097 (JD 020283).

706

¶1837. By July 1964, Dr. Spears and other Lorillard scientists stated that "we as a cigarette manufacturer are not confident at this time, that we can provide a highly efficient charcoal filter in keeping with our standards of quality." 00065925-5926 at 5925 (US 34223). Dr. Spears stated that the filters altered the taste of the cigarette smoke to the point where it "bec[ame] undesirable to most smokers." 1000307159-7164 at 7160 (US 34223).

¶1838. Dr. Spears explained in this letter that it is "currently possible to produce a carbon filter cigarette without this undesirable taste quality by using low activity carbon, small amounts of carbon or by adding a flavor such as menthol to the carbon, we do not consider these procedures as adequate solutions, since each impairs the efficiency of the filter for volatile smoke components." 00065925-5926 at 5925 (US 34223).

¶1839. Lorillard took its York charcoal filter cigarette off the market in 1964 or 1965 because of its unacceptability to consumers. Coggins, United State Dep., 6/27/02, 123:2-11

Defendants' Efforts to Reduce Ciliastats

¶1840. Ciliastats in cigarette smoke impair the function of the cilia, which are hair-like structures lining the long passageways in the lungs that are responsible for removing foreign matter, including particulate matter. Aldehydes, which are carcinogenic compounds present in cigarette smoke, are one type of ciliastats. Townsend WD, 56:6-59:3; Townsend TT, 3/8/05, 14676:17- 14677:22. Over the years, the cigarette manufacturing Defendants have researched various ways to potentially reduce aldehydes. See, e.g., Townsend WD, 57:4-7; Townsend TT,10/6/04,1747:21-23, 1743:25-1744:3, 1744:17-1747:20; 207458814-8905 at 8822 (JD 054065); Harris TT, 10/18/04,

707

¶2761:8-20; (no bates) (JD 04426); Robinson, United States Dep., 11/12/03, 211:19-212:11; Spears, BCBS Dep., 3/23/00, 144:4-22; 03645135-5329 at 5303 (JD 020169); 00061704-1752 (JD 020259); 01211241-1245 (JD 024760).

¶1841. For example, in 1966, BATCo instituted Project Conqueror (650003616-3642 (JD 011426)) to design a cigarette based on ciliastasis research. Harris TT, 10/18/04, 2761:8-20. The BAT Group ceased ciliastasis research by the late 1960s. Read WD, 36:8-19.

¶1842. The American Tobacco Company sponsored research compendiums by Larson Haag and others that included ciliastisis work. Larson and Haag's work was relied upon by the Surgeon General in his 1979 Report. (no bates) (US 64071 at 14-105, 14-116).

¶1843. Defendants have marketed various cigarette brands that reduced some ciliastats. Townsend WD, 58:14-17. For example, Philip Morris engineered Multifilter to be less ciliatoxic by using both charcoal and cellulose acetate in the filter. Farone TT, 10/6/04, 1748:7-16; See also (no bates) (US 26080 at 1-2) (Wakeham describing a "product prototype" with a "multifunctional filter" which uses a plug-space-plug configuration employing charcoal and specially treated papers for phenol and hydrogen cyanide removal).

¶1844. While there was consumer interest in the brands that reduced ciliastats, consumer acceptance of these brands has been low because of poor taste. Townsend WD, 61:4-6, 11-17.

Defendants' Efforts to Reduce Delivery of Tobacco-Specific Nitrosamines

¶1845. Defendants have also researched ways to selectively reduce or eliminate tobacco-specific nitrosamines ("TSNAs"), a carcinogenic class of compounds. Townsend WD, 65:4-12; Lilly, United States Dep., 5/14/02, 241:2-242:5; Farone TT, 10/6/04, 1692:25-1693:13, 1762:10-18, 1763:7-17; Honeycutt, United States Dep., 4/23/02, 115:19-23; Blackie 30(b)(6), United States Dep.,

708

¶10/11/01, 10:10-11:11, 12:15-13:24, 16:22-18:2, 35:6-23, 38:10-39:2, 40:5-21; Robinson, United States Dep., 11/13/03 at 263:17-22, 264:23-265:22, 266:4-267:6.

¶1846. By 1980, Philip Morris had developed at least three different technologies for lowering the oxides of nitrogen ("denitrification") contained in reconstituted tobacco leaf, a tobacco filler created from bits of tobacco leaf discarded during the manufacturing process. Philip Morris found that each of the three processes reduced the formation of nitrosamines well beyond the technologies then in use, and concluded that each of the three was commercially and economically feasible.

¶1847. Philip Morris secured at least three patents on various denitrification processes. 2028516499-6546 (US 37394) (electrodialysis) (Patent No. 4,566,469); 2051804769-4776 (US 78963) (patent for "dissimilatory denitrification" that also recognized that "smoking products having lowered amounts of oxides of nitrogen present in smoke are desirable."); 2028596292-6292 (US 23057) ("thermophilic process") (Patent No. 4,685,478); see also 2022203905-3906 (US 20355) (1981 process improvement).

¶1848. None of the three processes were used by Philip Morris in the years after they were created. Farone WD, 172:11-173:16.

¶1849. By 1982, Philip Morris developed another way to reduce the oxides of nitrogen in its cigarettes -- blending and preparing tobaccos that would deliver lower levels of oxides of nitrogen. Farone WD, 168:18-169:22.

¶1850. Bright tobacco, also known as flue-cured tobacco, is one of the main tobaccos used in cigarettes sold in the United States. Bright tobacco has traditionally been cured by heating it in barns with propane heaters. Burley tobacco is the other main tobacco used in American cigarette production (typically the blend in domestic commercial cigarettes is 2/3 burley and 1/3 bright tobacco). Burley tobacco, which is naturally higher in alkaloids that promote TSNA formation, is "air-cured." PM3000136161-6165 at 6161 (US 61555) (describing tobacco curing methods and content of "important ingredients" in various strains including sugars, nicotine, and total volatile bases); Farone WD, 44:2-45:22, 46:16-47:21. In a patent application Philip Morris submitted in 1982, Philip Morris described its discovery of a method to air-cure Bright tobacco and reduce harmful nitrogen oxide ("NO") in smoke:

709

This novel tobacco, when formulated as a smoking article, such as a cigarette, and smoked, presents the aroma and taste of a blended tobacco smoking article and may be substituted in whole or in part for burley tobacco in blended tobaccos while substantially maintaining the subjective qualities of the burley tobacco and yet, as compared to the burley tobacco-containing blends, provides a reduced NO content in the smoke.

¶1000015245-5246 (US 22133); 511351011-1019 at 1017 (US 88040) (Patent No. 4,516,590, filed November 26, 1982, issued May 14, 1985); see also 2026526349-6353 (US 86964) (Patent No. 4,607,646, submitted in Feb. 1984, issued to Cliff Lilly on August 26, 1986, patenting a method for treating bright tobacco to create a tobacco with Burley's smoking characteristics, but without Burley's "less desirable features").

¶1851. This process allowed substitution of air-cured Bright tobacco for burley tobacco, and thus represented a potential advance in reducing the delivery of harmful TSNAs to smokers. Philip Morris did not pursue utilization of air-cured Bright further. Farone WD, 169:23-171:17. When the air-cured bright tobacco was substituted for burley tobacco in the control cigarettes, as described in the experiments discussed in the patent, there were instances in which carbon monoxide ("CO"), hydrogen cyanide ("HCN"), FTC tar, and aldehyde ("RCHO"), deliveries were increased. 511351011-1019 at 1017 (US 88040).

710

¶1852. By 1985, Philip Morris had demonstrated its ability to use tobacco blend selection to reduce TSNAs. On April 1, 1985, Philip Morris scientists Sue Tafur and Ed Lambert wrote a memo to Ted Sanders, a high-level Philip Morris scientist, which was copied to other Philip Morris scientists including Jim Charles, Robert Ferguson, Robin Kinser, and William Morgan, reporting on their experiment "to determine if it is possible to deliver adequate nicotine to MS [mainstream] smoke while reducing mainstream TSNA by using an experimental filler blended from a high alkaloid tobacco with low alkaloid and oriental tobaccos. This work was designed to provide a preliminary indication of the feasibility of the concept." Tafur and Lambert concluded that "[t]he data presented here indicate that the approach to delivering adequate nicotine to MS while reducing TSNA can be met by judicious blending of tobaccos." 2001113614-3618 (US 22216).

¶1853. In 1998, Reynolds discovered a method to reduce TSNAs from flue-cured tobacco. Blackie 30(b)(6), United States Dep., 10/11/01, at 66:3-17; see also Beasley WD, 76:21-77:8. Through a series of laboratory experiments, Reynolds determined that TSNAs are formed when certain combustion products of direct-fire curing (the prevailing curing method used by U.S. farmers) interact with compounds in the tobacco leaf. Reynolds then discovered that using heat exchange curing (preventing the products of combustion from contacting the tobacco) reduced TSNAs in flue-cured tobacco by over 90%. Townsend WD, 66:3-17. Reynolds shared this data with other Defendants. (no bates) (JD 060117); (no bates) (JD 060141); (no bates) (JD 060138). RJR did not share this information with Star Scientific, which was actively researching lowering TSNAs. Other domestic cigarette manufacturers have switched to using low TSNA flue-cured tobacco as part of their tobacco blend. 505724149 (US 93144); Townsend WD, 69:12-14. See also Coggins, United States Dep., 6/27/02 at 156:23-157:15.

711

¶1854. Lorillard experimented with numerous approaches to reducing TSNAs. Currently, Lorillard reduces the TSNAs in its commercially marketed cigarettes by using tobacco that has been cured using a heat exchange method, rather than curing with direct heat. Lorillard also reduces TSNAs through its use of reconstituted leaf and puffed tobacco. Robinson, United States Dep., 11/13/03, 266:4-267:6. In fact, all of the domestic and offshore flue-cured and burley tobacco Lorillard purchases is low or zero TSNA. Coggins, United States Dep., 6/27/02, 167. Lorillard also experimented with applying materials such as ascorbic acid to the tobacco. The acid would oxidize the tobacco-specific nitrosamines and eliminate them from the leaf. Id. at 264:23-265:16.

¶1855. Brown & Williamson has also conducted research into reducing TSNAs. Project Nitro, for example, was an early attempt to reduce TSNAs in United States burley tobacco. Honeycutt, United States Dep., 4/23/02, 115:19-23.

¶1856. More recently, in November 2001, Brown & Williamson began test-marketing "Advance," which contains tobacco cured using a patented process to reduce levels of TSNAs. See Section V(D)(5)(c)(4), infra.

¶(...continued) growers. Szymanczyk WD, 172:12-21.

712