Defendants Falsely Represented that Light and Low Tar Cigarettes

Defendants Falsely Represented that Light and Low Tar Cigarettes

Deliver Less Nicotine and Tar and, Therefore, Present Fewer Health Risks than Full-Flavor Cigarettes The evidence establishes that the vast majority of people who smoke today want to quit due

¶to health concerns. Defendants accurately perceive smokers' desire to quit as a significant threat to their economic welfare and possibly their existence; obviously, if sufficient numbers of smokers who want to quit actually do so, it will greatly diminish Defendants' earnings. In 1978, a Tobacco Institute document offered the following chilling assessment of the threat to Defendants' businesses: "low tar cigarette smokers . . . are potential cigarette quitters. . . . And more of them than the average have tried to quit smoking. Since low tar smokers are an expanding share of the market, their greater desire to quit smoking poses a special problem for the cigarette industry." 501565967-6019 at 6008 (US 21866).

¶As part of a scheme to intercept potential quitters and dissuade them from giving up smoking, Defendants developed and introduced filtered and purportedly "low tar and nicotine" cigarettes. As their internal documents reveal, Defendants engaged in massive, sustained, and highly sophisticated marketing and promotional campaigns to portray their light brands as less harmful than regular cigarettes, and thus an acceptable alternative to quitting, while at the same time carefully avoiding any admission that their full-flavor cigarettes were harmful to smokers' health. Defendants knew that by providing worried smokers with health reassurance, they could keep them buying and smoking cigarettes.16

¶Defendants' efforts have been successful. Even though low tar smokers have a greater desire to quit, their misconception that low tar cigarettes are less harmful dissuades them from doing so. Current research demonstrates that approximately 50% of all smokers of lower tar cigarettes chose such products because they perceive them to be a "healthier" cigarette and a potential step toward quitting. Weinstein WD, 53:3-54:20; Benowitz WD, 60:8-22.

¶Defendants were aware, however, that because of nicotine addiction, smokers would not smoke "health reassurance" cigarettes if they failed to supply enough nicotine to sustain their addiction. Defendants therefore designed their low nicotine and low tar cigarettes with what they referred to as "elasticity" of delivery. This created the illusion that there would be less nicotine and less tar, but at the same time it would facilitate a smoker's ability to compensate for the reduced nicotine yield. As a result of smoker compensation, discussed in detail in the Findings of Facts, smokers inhale essentially the same amount of nicotine (and with it, tar) from low tar cigarettes as from regular cigarettes.

¶In short, Defendants have known for decades that filtered and low tar cigarettes do not offer a meaningful reduction of risk, and that their marketing which emphasized reductions in tar and

¶The alleged Racketeering Acts relating to this claimed scheme are Racketeering Act Nos. 36, 37, 39, 47, 48, 53, 119 & 124.

¶nicotine was false and misleading. Defendants have known for decades that each smoker has a particular nicotine requirement that he or she must satisfy in order to sustain the addiction and, as a result, smokers will inhale the same amount of nicotine, and with it tar, from low tar cigarettes as they do from regular cigarettes. Benowitz WD, 55:11-22; 56:22-23; 57:5-9; 57:23-1; Benowitz TT, 11/2/04, 4762:23-24; 4763:14-16; Farone WD, 103:18-104:1; see also Findings of Fact Section V(E)(2).

¶Despite overwhelming evidence that Defendants intended to market low tar cigarettes in order to deter potential quitters, Defendants have consistently maintained publicly that "all of their marketing activities had one and only one purpose: to impact the brand choice of adults who had already chosen to smoke." In addition, "[t]he tobacco companies expressly stated they had no interest in either (1) increasing the likelihood of anyone's beginning to smoke or (2) decreasing the likelihood that a current smoker would quit." Dolan WD, 56:3-14.

¶These public statements are blatantly false. For instance, Carolyn Levy, former Philip Morris Director of Consumer Research and Senior Vice President for Marketing and Sales Information, testified that at the same time Philip Morris was making public statements that it had no interest in intercepting quitters, she was conducting research on ways to deter smokers from quitting. Levy WD, 33:12-34:9, 34:23-35:2. Levy testified that Philip Morris was "studying the factors that influence quitting," including whether "people quit because of health concerns," so that Philip Morris could "design products or line extensions of existing brands that addressed those factors." Asked if the purpose was "[s]o that people would keep smoking Philip Morris cigarettes rather than quitting," Levy testified: "Yes, if Philip Morris could design new products to address those concerns." Levy WD, 31:9-22.

¶As part of the Enterprise's scheme to defraud smokers, Defendants withheld and suppressed their extensive knowledge and understanding of nicotine-driven smoker compensation. Farone WD, 112:23-113:10 (Defendants' superior knowledge of compensation was closely held within Philip Morris and the tobacco industry and there was an "effort on the part of [his] co-workers at Philip Morris, including [his] supervisors, to restrict any public acknowledgment on the part of Philip Morris of the phenomena of compensation"). For example, a 1978 BATCo memorandum about its internal research stated:

In general, a majority of habitual smokers compensate for changed delivery, if they change to a lower delivery brand than their usual brand. . . . If they choose [a] lower delivery brand which has a higher tar to nicotine ratio than their usual brand (which is often the case with lower delivery products) the smokers will in fact increase the amounts of tar and gas phase that they take in, in order to take the same amount of nicotine.

¶105553905-3914 at 3905, 3907, 3913 (US 34799). In addition, there are lights of certain brands with higher tar levels than regulars of other brands from the same company, and there are also lights and regulars of the same brand that have the same FTC tar rating. For example, according to the most recent FTC report of tar and nicotine yields, Philip Morris sells versions of Virginia Slims and Virginia Slims Lights that both deliver 15 mg of tar as measured by the FTC method.

¶Defendants acknowledge that, today, every major manufacturer continues to manufacture and sell low tar brands and brand extensions in both the "light" and "ultra light" categories. Ivey WD, 54:6-17; Bonhomme WD, 8:13-9:18. Defendants use these so-called brand descriptors such as "light," "medium," and "mild" to market their brand extensions as low in tar with full knowledge that a substantial number of smokers interpret these descriptors as indicating a less harmful cigarette. See Findings of Fact Section V(E)(3).

¶The misleading nature of Defendants' design and marketing of filtered and low tar cigarettes continues. See generally Burns WD, 30:9-12; 62:5-7; Farone WD, 3:12-22; 4:20-22; 72:13-18; 115:19-116:2; Henningfield WD, 55:13-56:7; 66:14-67:12; 82:16-19.