Conclusions

Conclusions

¶1758. The Defendants have repeatedly made vigorous and impassioned public denials -- before Congressional committees, in advertisements in the national print media, and on television -- that neither smoking nor nicotine is addictive, and that they do not manipulate, alter, or control the amount of nicotine contained in the cigarettes they manufacture. The Findings of Fact contained in this Section and Section V(B), supra, provide overwhelming evidence that those statements are false.

¶1759. As established by the Findings of Fact set forth in this Section, cigarette company Defendants researched, developed, and implemented many different methods and processes to control the delivery and absorption of the optimum amount of nicotine which would create and sustain smokers' addiction. These methods and processes included, but were not limited to: altering the physical and chemical make-up of tobacco leaf blends and filler; maintaining or increasing the nicotine to tar ratio by changing filter design, ventilation and air dilution processes, and the porosity and composition of filter paper; altering smoke pH by adding ammonia to speed nicotine absorption by the central nervous system; and using other additives to increase the potency of nicotine.

¶1760. The fact that some of these methods and processes may also have been used, as Defendants argued, to improve flavor and taste, especially of low tar cigarettes as they were developed in response to the fears of the public about the adverse health effects of smoking, is in no way inconsistent with these Findings of Fact that Defendants also used them to manipulate, and increase the amount and form of nicotine delivered in cigarettes.

¶1761. Nor is the fact that during the 1970s, the public health community may have encouraged the development of low tar cigarettes because it believed -- erroneously -- that nicotine levels would fall as tar levels fell, in any way inconsistent with these Findings of Fact. What the public health community did or did not know is irrelevant to the issue of what Defendants knew about the relationship between nicotine and tar and whether they knowingly made false public statements about that relationship.

¶1762. The words of Defendants themselves establish that the goal of their extensive efforts, through research and experimentation, to control the levels of nicotine delivery was to ensure that smokers obtained sufficient nicotine to create and sustain addiction:

-- Philip Morris listed as one of the achievements of its Electrophysiological Studies Research Group a discovery "that there are optimal cigarette nicotine deliveries for producing the most favorable physiological and behavioral responses." ¶947, supra.

-- RJR's "top priority [was] to develop and market low 'tar' brands . . . that: [m]aximize the physiological satisfaction per puff -- the single most important need of smokers." ¶1431, supra.

-- BATCo named as a "high priority" development of "alternative designs (that do not invite obvious criticism) which will allow the smoker to obtain significant enhanced deliveries should he so wish." ¶1460, supra.

-- The "major objective" of Lorillard's study of filter design was to "increase the physiological impact and/or nicotine to tar ratio in ultra low tar cigarettes." ¶1488, supra.

¶1763. In sum, the evidence as presented in these Findings of Fact is overwhelming that Defendants have, over the course of many years, time and again -- and with great self-righteousness -- denied that they manipulated the nicotine in cigarettes so as to increase the addiction and dependence of smokers. Those denials were false.

The Government Has Failed to Prove by a Preponderance of the Evidence that Defendants Deliberately Chose Not to Utilize or Market Feasible Designs or Product Features that Could Produce Less Hazardous Cigarettes

Introduction

¶1764. The cigarette company Defendants have made many efforts and have used many different scientific approaches, over the last forty years, to develop and market less hazardous cigarettes. These Defendants knew that there was an enormous market for such cigarettes and an enormous profit to be made by whichever company was first to achieve success. For that reason, they invested hundreds of millions of dollars, as well as the time and creativity of hundreds of scientists and technical assistants, to reach that goal. They still failed.

¶1765. The Government alleges that the Defendants failed because they did not wish to undermine the commercial viability of their existing brands by suggesting that they were less safe, or provide any ammunition to plaintiffs in the smoking and health litigation which they greatly feared. Based on the facts presented, infra, however, the Court cannot find that the Government has proved, by a preponderance of the evidence, that the cigarette company Defendants deliberately chose not to develop, market, and profit from less hazardous cigarettes in order to insulate their existing brands from competition and reduce their litigation exposure.