Defendants Continue to Obscure the Fact that ETS is Hazardous to Nonsmokers

Defendants Continue to Obscure the Fact that ETS is Hazardous to Nonsmokers

Websites and Other Public Statements

¶3829. In this litigation, Defendants have denied that ETS causes disease in nonsmokers. USX6390001-0400 at 0045-0046 (US 89555) (BATCo); USX6390001-0400 at 0078-0079 (US 89555) (B&W); USX6390001-0400 at 0147-0148 (US 89555) (Lorillard); USX6390001-0400 at 0194-0195 (US 89555) (PM); USX6390001-0400 at 0272, 0274-0275 (US 89555) (RJR).

¶3830. Reynolds continues to publicly and directly deny that secondhand smoke causes diseases and other adverse health effects in nonsmokers. Reynolds's position on its website is that it believes "that there are still legitimate scientific questions concerning the reported risks of secondhand smoke." Reynolds's website further states:

Considering all of the evidence, in our opinion, it seems unlikely that secondhand smoke presents any significant harm to otherwise healthy nonsmoking adults at the very low concentrations commonly encountered in their homes, offices and other places where smoking is allowed. We recognize that exposure to high concentrations of secondhand smoke may cause temporary irritation, such as teary eyes, and even coughs and wheezing in some adults. In addition, there is evidence that secondhand smoke, like other airborne irritants, or allergens such as pollen and dust may trigger attacks in asthmatics.

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¶(US 92012). Mary Ward, an in-house attorney for Reynolds until 2004, testified that the Reynolds position on passive smoking has not changed since she joined the company in 1985, with the exception of admitting that ETS "may trigger attacks in asthmatics." Ward TT, 11/4/04, 5076:9- 5077:22.

¶3831. Reynolds corporate position on ETS and children is that "parents and others should minimize the exposure of children and young children to tobacco smoke and other airborne irritants." (US 92012).

¶3832. Lorillard also continues to dispute publicly and directly disagree with the scientific consensus. On October 14, 2003, Lorillard issued a press release announcing a favorable verdict in the Miami case of a former flight attendant who alleged her chronic sinusitis and bronchitis were caused by ETS exposure over 27 years of working for airlines. After stating the trial result and providing a summary of the allegations, the press release stated: "Jurors are increasingly seeing through the transparent body of evidence in these types of cases, and we will continue our vigorous defense against any and all such future claims." USX5710001 (US 89303). The press release was picked up and run in the Los Angeles Times the next day. USX5710005 (US 89305).

¶3833. Lorillard general counsel Ron Milstein testified that his company has never admitted in any forum that ETS exposure causes disease, and that the October 2003 press release was in line with the company's position that ETS is not a proven health hazard. Milstein TT, 1/7/05, 9263:8- 9264:24. Lorillard's current website does not admit that ETS causes disease in nonsmokers. Instead Lorillard directs consumers to the findings of public health authorities on ETS.

¶3834. B&W also continues to publicly deny that secondhand smoke causes diseases and other adverse health effects in nonsmokers. The company's 2003 website stated: "It is, therefore, our view that the scientific evidence is not sufficient to establish that environmental tobacco smoke is a cause of lung cancer, heart disease, or other chronic diseases." TLT0390003-0003 (US 76761). In 2004, the B&W public corporate position was revised to state its disagreement in slightly different terms: "In our opinion and in the opinion of others, however, there are legitimate scientific questions concerning the extent of the chronic health risks of ETS." USX5420009 (US 89165); Ivey TT, 11/16/04, 6082:23-6083:14.

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¶3835. BATCo continues to publicly dispute that secondhand smoke causes diseases and other adverse health effects in nonsmokers. BATCo also denies that passive smoke is a health hazard to adults or children. On its website, BATCo states that ETS can be "annoying," but denies that it presents any risk:

We believe, however, the claim that ETS exposure has been shown to be a cause of chronic disease is not supported by the science that has developed over the last 20 years or so. In our view, it has not been established that ETS exposure genuinely increases the risk of nonsmokers developing lung cancer, heart disease, or chronic obstructive pulmonary disease.

¶ARG0412302-2303 (US 86747); see also ARU6220813-0814 (US 86743).

¶3836. BATCo's website also claims that the 1998 WHO/IARC study, which reported a increased relative risk of lung cancer of 16% for spousal exposure and 17% for workplace exposure, "found no meaningful increase in lung cancer risk." BATCo summarizes the 2003 Enstrom study results, but fails to state that the study was funded and managed by the tobacco industry through CIAR and Philip Morris. ARG0412302-2303 (US 86747).

¶3837. BATCo has denied ETS-related health risks in other recent public statements. According to a March 1998 news article, BAT Chairman Martin Broughton was asked if he stood by the company's assertion that passive smoking is not a health risk. Broughton's response was: "There is virtually no evidence at all to the contrary." ARU6532231-2233 at 2232 (US 86878).

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¶3838. In 2002, BATCo published a document titled "British American Tobacco Social Report 2001/2002." In this report, BATCo asserted:

There is also a debate about Environmental Tobacco Smoke (ETS), also known as passive smoking. Some say it poses health risks, and others, including ourselves, say there is no convincing evidence that ETS is a cause of chronic diseases such as lung cancer.

¶TLT0231830-TLT0231910 at 1844 (US 76316).

¶3839. When Philip Morris Companies originally established the Philip Morris website in October 1999, its public position on passive smoking was that while "many scientists and regulators have concluded that ETS poses a health risk to nonsmokers," Philip Morris did not agree with these conclusions. (no bates) (US 92056).

¶3840. In summer 2001, Philip Morris revised its position on ETS. According to a June 11, 2001 memorandum from Paula Desel to Raymond Lau and others, and copied to Ellen Merlo, Chuck Wall, Denise Keane, Mark Berlind, and others, Desel attached a draft revised ETS position for the Philip Morris website. 2083609049-9049 (2083609050-9056 (withheld as privileged)) (US 92058).

¶3841. The draft was forwarded to Roger Walk, a Philip Morris scientist in Europe (and INBIFO Scientific Adviser), who forwarded his comments to Raymond Lau. According to an undated Philip Morris document, a Philip Morris employee reviewed Walk's and Lau's comments, then responded to Desel with the following revision to the paragraph on lung cancer and heart disease:

The conclusions reached by governmental authorities and the public health community with respect to lung cancer and heart disease in

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non-smoking adults are based on a large number of scientific studies that have investigated the association of reported ETS exposure with these health end points. These studies have shown a small, but generally consistent, increase in the relative risk of contracting these diseases for non-smokers reportedly exposed to ETS.

¶2085126542-6544 at 6542 (US 92059).

¶3842. A later draft of the Philip Morris revised position on passive smoking, marked "Confidential" and dated August 6, 2001, is titled "Our Policy and Position on Secondhand Tobacco Smoke." This iteration of the company's position acknowledged and agreed with the scientific consensus that passive smoking can cause lung cancer and other diseases:

We agree with [accept] the consensus among governmental authorities and the public health community that secondhand smoke (also known as environmental tobacco smoke or ETS) can cause or increase the risk of diseases -- including lung cancer and heart disease -- in nonsmoking adults, as well as conditions in children such as asthma, respiratory infections and Sudden Infant Death Syndrome.

¶2085126539-6541 at 6539 (US 92057).

¶3843. The August 6, 2001 draft Philip Morris position also stated that, "Given the health effects of secondhand smoke, we believe that legislatures should adopt meaningful and reasonable public smoking restrictions, considering all the factors and interests involved." 2085126539-6541 at 6539 (US 92057).

¶3844. From 1999-2001, the Philip Morris website publicly stated its disagreement with the scientific consensus as well:

Many scientists and regulators have concluded that ETS poses a health risk to nonsmokers. Even though we do not agree with many of their conclusions, below we have provided some links so you can access some of their views.

¶(US 92056 at 2); Parrish TT, 1/25/05, 11080:23-11082:14.

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¶3845. While this case was pending, Philip Morris revised its position on ETS to delete its disagreement with the conclusions of "scientists and regulators." Philip Morris now states: "Public health officials have concluded that secondhand smoke from cigarettes causes disease, including lung cancer and heart disease in nonsmoking adults" as well as a number of adverse health effects in children. (no bates at 1 of 2) (US 92055).

¶3846. Liggett does not take a public position on the effects of ETS; in fact, Bennet LeBow, President and CEO of Vector Tobacco Inc., testified, "I do not know whether Liggett ever had or has a position on ETS and causation of lung cancer in healthy non-smokers." Lebow testified that "the scientific issues involving ETS, and the effects of cigarette smoke on non-smokers, are different, more complicated and more controversial today than the issue of whether smoking causes lung cancer and other diseases in smokers." LeBow WD, 56:10-57:9.

The Philip Morris External Research Program (PMERP)

¶3847. Philip Morris has created a new organization called the Philip Morris External Research Program, or PMERP, to continue the scientific research carried out by CIAR.

¶3848. The MSA, signed by representatives of certain Defendants on November 23, 1998, required that Defendants shut down and disband CIAR. (no bates at 32-33) (JD 045158). CIAR's executive director Eisenberg formally dissolved the organization on December 6, 1999. 86205205- 5206 (US 21091).

¶3849. Prior to CIAR's dissolution, Defendants were already forming a plan to establish a replacement. On November 25, 1998, Lorillard general counsel Arthur Stevens wrote a letter to Philip Morris general counsel Denise Keane with copies to Charles Blixt at Reynolds and Ernie Pepples at B&W. Stevens wrote: "Please call me later in the morning on Monday, November 30,

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¶1998, so that we can discuss the status of the plan to reinstate CIAR. The matter seems to be 'dragging' without direction toward a positive resolution." 86205404 (US 22164). The CIAR Board of Directors had a similar intent in 1998 to reconstitute CIAR. Eisenberg TT, 11/15/04, 5881:6-17, 5883:2-6; 86205377-5378 at 5377 (US 75412); 2064207030B (US 25744); 2063871374-1380 at 1380 (US 92030).

¶3850. On October 11, 1999, Eisenberg faxed Philip Morris a proposal to form an "External Research Program" to administer research with a Scientific Advisory Board, a research agenda, and peer reviewers. 2073327299-7301 (US 90035).

¶3851. Philip Morris established the PMERP in early 2000, using the same offices in Linthicum, Maryland, that formerly housed CIAR, employing many of the same individuals who were employed by CIAR, and even using the same phone numbers as CIAR had used. The program is administered by an entity called Research Management Group (RMG), set up in 2000 solely to manage the PMERP. RMG has never managed any other program. Eisenberg TT, 11/9/04, 5631:9- 24. RMG is headed by Max Eisenberg, the former executive director of CIAR. Eisenberg WD, 52:6-10, 53:10-16; Eisenberg TT, 11/15/04, 5852:10-5853:7.

¶3852. Eisenberg and Philip Morris established a "Research Focus" and Request for Applications for PMERP in the same way that the Research Agenda and Request for Applications were established for CIAR. Eisenberg TT, 11/9/04, 5637:16-5638:14; 2085317779-7809 (US 22200). The PMERP utilized a number of former CIAR peer reviewers and grantees, as well as ETSAG project recipients, including James Enstrom, Alan Hedge, Samuel Lehnert, Roger Jenkins, and Antonio Miguel. 563815-5639:9; 2085317779-7809 at 7802 (US 22200). All told, 44 out of the 105 peer-reviewers listed by PMERP in its 2000 Request for Applications were drawn from the peer reviewer list in the 1998 CIAR Request for Applications. 2085317779-7809 at 7802 (US 22200); 86616778-6810 (JD 042662); Eisenberg TT, 11/15/04, 5663:14-18. Moreover, 53 of the peer reviewers were former recipients of CIAR funding. Eisenberg TT, 11/15/04, 5864:3-11. Many researchers funded through CIAR have continued to receive funding through the PMERP. Eisenberg WD, 54:14-17. Through the PMERP, Philip Morris continues to manage projects conducted by ETSAG and CIAR researchers Roger Jenkins, James Enstrom, Demetrios Moschandreas and Samuel Lehrer. PM3002997014-7258 at 7087, 7088, 7105 (JD 055034).

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¶3853. Eisenberg also organized the formation of a Scientific Advisory Board (SAB), similar in structure to the CIAR SAB. The PMERP SAB was originally staffed with two former members of the CIAR SAB. Eisenberg WD, 53:22-54:3; 2085317779-7809 at 7780 (US 22200).

¶3854. The subject matter of the research funded through the PMERP is very similar to that funded through CIAR. The first research topic area in the PMERP Research Agenda is "Exposure/Biomarkers/ Dosimetry," a subject that includes the very same types of work that were funded as Applied Projects by CIAR. For example, PMERP funds work investigating "area and personal monitoring," "biological monitoring with biomarkers," and exposure assessment. 2085317779-7809 at 7785 (US 22200); 2082735680-5706 at 5687 (JD 043675).

¶3855. The PMERP also solicits epidemiological research proposals to study risk factors and confounders in the development of cancer. 2085317779-7809 at 7786 (US 22200); 2082735680-5706 at 5688 (JD 043675).

¶3856. As was the case with the CIAR SAB, the PMERP SAB has no authority to sign contracts with researchers or commit funds for any studies. Eisenberg TT, 11/15/04, 5861:6-5862:6.

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Other Initiatives

¶3857. After entering into the MSA, Philip Morris continued its efforts to jointly fund industry research through structures that existed prior to the MSA, undertaking joint funding of external research with BATCo through Philip Morris's Scientific Research Review Committee. Reif PD, United States v. Philip Morris, 7/30/03, 70:13-71:15.

¶3858. In addition, there is credible evidence that the ETS Consultancy Program is still operational. In 1998, Ted Sanders, Director of Worldwide Scientific Affairs of Philip Morris, sent Richard Carchman in Richmond, a collection of company evaluations of ETS consultants still working for Philip Morris. The document also contains a summary of how the European consultancy program was transferred from Covington & Burling to Philip Morris in 1997:

¶European Consultant Group

This program, which WSA inherited approximately one year ago, has gone through and is continuing to go through significant changes. The program, which dates back about ten years, was originally administered through C&B. Once the program was transferred to WSA, scientists took on an active role in managing the program. That role has continued to expand to the point that for the first time in the program's history, face to face contact between the three principal consultants involved in the program and WSA scientists has been initiated. The three principal consultants involved are Dr. George Leslie, Dr. John Hoskins, and Dr. Max Weetman. By the end of next week I will have CV's on each on these three individuals which will be transmitted to you. At that time I think that further discussions are necessary to determine both how best to utilize these consultants and to ensure that this can be done.

¶2063593931-3949 at 3946 (US 24025) (emphasis in original).

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