Reports that Matter

United States v. Philip Morris USA Inc.: Amended Final Opinion

Defendants Made False and Misleading Public Statements Denying that

Section 88 of 129

Defendants Made False and Misleading Public Statements Denying that

ETS Is Hazardous to Nonsmokers 3793. Despite the positions of the public health authorities and despite their own internal

  1. In 1979, Defendant Tobacco Institute issued a brochure to the public called "Fact or Fancy?" that denied any adverse health effects caused by cigarettes. With respect to passive smoking, the brochure denied that: "Women who smoke harm their babies before and after birth." Moreover the brochure claimed: "It is difficult to understand why parental smoking is blamed for a child's coughs or wheezes, in view of these conflicts in research findings." TIMN0133740-3798 at 3741, 3754 (US 21280).

  2. In 1980, the Tobacco Institute published a brochure titled "A Two-Way Street" which stated: "First of all, it is important to understand that there is no convincing evidence that tobacco smoke causes disease in nonsmokers." 2024299572-9575 at 9573 (US 20401).

  3. In response to the three 1981 studies showing an increased risk of lung cancer among spouses married to smokers and the Surgeon General's warning of a "possible serious public health problem," Defendant Tobacco Institute ran a series of advertisements called "Answers to the most asked questions about cigarettes." "Question 5" was "Does Cigarette Smoke Endanger Nonsmokers?" The Tobacco Institute's "answer" in the advertisement distorted the scientific evidence and the Surgeon General's conclusions:

Here's what two major opponents of smoking said on the subject:

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  1. The Surgeon General. Clearly and simply put, he has not concluded from the scientific literature reviews that cigarette smoking causes disease in nonsmokers.
  1. The American Cancer Society. A report covering 17 years and some 200,000 people indicated that 'second-hand' smoke has an insignificant effect on lung-cancer rates in nonsmokers. Fact from a report published by the Statistical Director of the Society in June, 1981.

A recent Japanese study made claims about lung cancer rates among nonsmokers. This got wide press coverage. But the validity of the study was seriously questioned by a variety of experts around the world.

TIMN0121194-1205 at 1196 (US 85358); see also 93852854-2869 at 2854 (US 88574).

  1. The ad campaign attacking the 1982 Surgeon General's Report was substantial:

The campaign . . . [was] targeted to reach eight out of 10 Americans 25 years or older. It is appearing in publications including Newsweek, People, Sports Illustrated, Time, TV Guide, U.S. News & World Report. . . .

TIMN0121194-1205 at 1196 (US 85358). Previous ads had already generated 10,000 requests for the Tobacco Institute's booklet. A series of nine ads were planned to run throughout 1982. Id., see also 93852922-2933 at 2931 (US 21118); TI04591849-1855 at 1853 (US 22028); TINY00063696379 at 6376 (US 87667).

  1. In October 1983, the Tobacco Institute ran another advertisement in the series called

"Answers to the most asked questions about cigarettes," posing the question "What happens to cigarette smoke in the air?" The ad ran in the Wall Street Journal and other news media. Among other things, the ad stated,

Even the U.S. Surgeon General, an outspoken critic of smoking, said in 1982 that the available evidence is not sufficient to conclude that other people's smoke causes disease in nonsmokers. The fact is, no

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claim of adverse health effect of cigarette smoke on a healthy nonsmoker has yet been proved.

TLT0601093-1095 at 1094 (US 65131); TLT0601100-1104 at 1101-1102 (US 65133).

  1. In 1984, Defendant Reynolds ran an advertisement titled, "Can we have an open debate about smoking?" Among other things, the advertisement stated, "Studies which conclude that smoking causes disease have regularly ignored significant evidence to the contrary. These scientific findings come from research completely independent of the tobacco industry. We at R. J. Reynolds think you will find such evidence very interesting. We think reasonable people who analyze it may come to see this issue as not a closed case, but as an open controversy." Reynolds included the adverse health effects of secondhand smoke in its campaign:

We will also explore other important issues including relations between smokers and non-smokers, smoking among our youth, and "passive smoking." Some of the things we say may surprise you. Even the fact that we say them may prove controversial. But we won't shy away from the controversy because, quite frankly, that's our whole point. We don't say there are no questions about smoking. Just the opposite. We say there are lots of questions -- but, as yet, no simple answers.

513943434-3434 (US 50268).

  1. Subsequently in 1984, Reynolds ran an advertisement titled "Smoking and Health:

Some facts you've never heard about." The advertisement directly attacked the conclusions of the

Hirayama study:

You also hear a lot today about "passive smoking" -- breathing other people's cigarette smoke. One study from Japan, which recently received tremendous publicity, claimed to have shown that wives of smokers ran a greater risk of lung cancer than wives of non-smokers. But this study contained such serious flaws that it was quickly and strongly criticized by several independent scientists -- including the statistician who designed the test used in the study.

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  1. From January 1984 to April 1986, Reynolds ran a series of advertisements in newspapers across the country. One was titled "Smoking in Public: Let's separate fact from fiction"; another was titled "Secondhand smoke: Let's clear the air"; and a third ran under the headline "Secondhand smoke: The Myth and the Reality." The three Reynolds advertisements asserted: "In fact, there is little evidence -- and certainly nothing which proves scientifically -- that cigarette smoke causes disease in nonsmokers." 506290558-0792 at 0608, 0611, 0612 (US 29799).

  2. In December 1986, the Tobacco Institute published a brochure, titled "Tobacco Smoke and the Nonsmoker: Scientific Integrity at the Crossroads." The Tobacco Institute claimed in its brochure that "a detailed review of the scientific literature on ETS" led to the conclusion that: "The evidence does not support conclusions that ETS represents a health hazard to nonsmokers." TIMN 284404-4413 at 4405 (US 77088).

  3. Defendants continued their drumbeat of public statements denying that cigarettes and tobacco smoke are a hazard to nonsmokers. The statements often borrowed from what the industry had said with respect to active smoking. For example, the Tobacco Institute published a booklet in 1987, titled "Smoking Restrictions: The Hidden Threat to Public Health." In this booklet, the authors asserted with respect to the health effects of passive smoke that:

A detailed review of the scientific literature on environmental tobacco smoke yields two basic conclusions: First, environmental tobacco smoke has not been shown scientifically to pose a health hazard in nonsmokers. Second, as a National Academy of Sciences panel noted recently, more and better research needs to be done.

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520911538-1542 at 1539, 1540-1541 (US 85593).

  1. A 1987 series of Philip Morris advertisements had pictures of smokers "talking" to the reader. The smokers in the ads asserted: "Please don't tell me my cigarette smoke is harmful to you. There's just no convincing proof that it is"; and "I know there's no proof my smoke can hurt you." 2500146093-6096 (US 20554).

  2. The Tobacco Institute published a brochure in 1988, titled "Environmental Tobacco Smoke and Health: THE CONSENSUS." This brochure referred to the 1986 reviews on passive smoking, then declared: "SCIENTIFIC CONSENSUS: No scientific case against environmental tobacco smoke." 507828094-8102 at 8096 (US 51276).

  3. An April 1990 INFOTAB publication, titled "Children & Smoking-The Balanced View," stated: "Exposure to ETS has not been scientifically proven to adversely affect the health of children." 2501342105-2110 at 2109 (US 20565).

  4. In November 1989, EPA had requested comments on a draft document titled "Environmental Tobacco Smoke: A Compendium of Technical Information," a companion document to the upcoming ETS Risk Assessment. TI11951245-1685 at 1251 (US 85699). In its February 1990 comments to EPA, the Tobacco Institute relied heavily on the conclusions of the McGill symposium, an industry funded and managed conference discussed Section V(G)(6)(a)((7))((e)), supra, but did not disclose the connection:

In addition, we would like to point out that in November of this past year, a symposium on ETS involving some 80 scientists from 20 countries was held at McGill University in Montreal. The proceedings of the symposium reflect a thorough, up-to-date discussion of the relevant literature. We believe that the results of this conference -- which concluded, overall, that ETS has not been shown to present a health hazard to nonsmokers -- should be carefully considered in

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further development of the EPA Compendium. Accordingly, we are transmitting copies of the McGill proceedings for use by EPA and its consulting authors.

TI11951245-1685 at 1254 (US 85699).

  1. In support of its arguments opposing the compendium's conclusions, the Tobacco Institute also cited published papers by industry consultants Sterling, Kessler, Fleiss, Layard, Reasor, HBI, Robertson, Hood, Tollison, Wagner, Ecobichon, Wu, Gori, Turner, Holcomb, Weinberg Consulting Group, Viren, Lee, Koo, Kabat, Wynder, Eatough, Witorsch and Haley. The Tobacco Institute did not disclose that it and the cigarette manufacturers funded and managed these consultants. TI11951245-1685 (US 85699).

  2. On June 25, 1990, the day the EPA released its draft Risk Assessment, the Tobacco Institute issued a press release which stated, under the headline "DRAFT RISK ASSESSMENT DESCRIBED AS SPECULATION; Underlying scientific foundation inadequate," that the conclusion that "ETS has been shown to be a cause of disease" was "contrary to fact." The Tobacco Institute then cited the McGill symposium findings, with no disclosure or attribution, as independent authority in support of its view:

This very issue was recently addressed by a prestigious panel of scientists at an international symposium on ETS held at McGill University in Montreal, Canada. As the opening presenter to the risk assessment panel at the symposium emphasized: "The first order of business . . . is for proper studies to be carried out with respect to a possible causal link between ETS and particular diseases. If studies justifying a causal inference were to become available, we could then employ the remaining steps in the risk assessment technique."

87697659-7664 at 7659, 7660 (US 85586); Dawson WD, 135:18-137:3.

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  1. The Tobacco Institute also critiqued the EPA Draft Policy Guidelines, which related to smoking in the workplace. A Tobacco Institute Public Affairs Progress Report stated:

We continued coordinating the industry's submissions on both draft documents with two member companies who plan to submit independent comments. . . . Editorials by scientific consultants criticizing the EPA ETS risk assessment in light of the findings of the McGill ETS symposium were published in the Detroit News, the Las Vegas sun and the Chicago Sun-Times. . . .

TI09911997-2033 at 2005 (US 22367).

  1. Industry consultants prepared letters to the editor for publication in major newspapers attacking the draft Risk Assessment with the results of the McGill symposium. As stated in the Progress Report quoted above, a number of these editorials/ letters were published. TI09911997- 2033 at 2021 (US 22367). By omitting industry attribution, the letters appeared to have been written by individuals with no industry connection. 1990 letters by Tobacco Institute consultant Jack Peterson in the Chicago Sun-Times, Las Vegas Sun and the Salt Lake Tribune, and by Tobacco Institute consultant David Weeks in the Richmond-Times Dispatch. Dawson WD, 133:13-135:13; TI12201464-1465 (US 86722) (Peterson letter titled "Passive smoking danger? Don't believe what you read"); TIMN343061-3061 (US 85582) (Weeks editorial titled "The Facts About ETS"); TIDN0019217-9268 at 9228-9229 and 9232-9233 (US 85597).

  2. As described below, the Tobacco Institute and other Defendants filed lengthy comments with the EPA on October 1, 1990, disputing the conclusions of and evidence cited in the Risk Assessment and policy guide. In these submissions, Defendants relied on the industry's ETS initiatives.

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  1. On October 1, 1990, the Tobacco Institute made its submission to the EPA. 87653565-6820 at 3941- 3998 (US 88596). The comments emphasize the findings of the papers presented at the McGill symposium, as well as industry-funded papers by industry consultants Lee, Balter, Gori, LeVois, Mantel, Bacon-Shone, Lunau, G.L. Reynolds, Viren, Fleiss, Gross, Wynder, Kabat, Reasor, Ecobichon, Wu, Gross, Kilpatrick, Todhunter, Perry, Kirk, Layard, Koo, Bieva and Witorsch, as well as the 1987 Tokyo conference and the 1988 "Perry" conference (organized by industry ETS consultant Roger Perry). 87653565-6820 at 3958, 3963-3967, 3969, 3972-3976 (US 88596).

  2. On October 1, 1990, R.J. Reynolds also made a submission to the EPA, which relied on many of the same industry consultant papers and industry-managed conferences, including: Koo, Witorsch, Kabat, Lee, Mantel, Kornegay, Kastenbaum, MacDonald, Layard, Viren, Kilpatrick, Butler, Rylander, the American Health Foundation (AHF), Adlkofer, Gori, Haley, Viren, Bieva, Sterling, Yano, Eatough, Proctor, Carson/Erikson. 87654420-4485 (US 92098).

  3. Oldaker and Paul Nelson were among a number of Reynolds scientists who wrote separate comments on the draft EPA Risk Assessment for the company. They similarly cited the industry's symposia and consultants in support of their opposition. Oldaker, the writer of the 1988 Carson/Erickson paper, repeatedly cited the paper as one of the authorities in support of his comments. 87653565-6820 at 4515-4531, 4604-4612, 4613-4618, 4619-4645 (US 88596).

  4. Philip Morris submitted comments to the EPA dated September 28, 1990. Like those of the Tobacco Institute and R.J. Reynolds, the Philip Morris submission cited to: Adlkofer, Haley, Robertson, Sterling, Kirk, Perry, Carson & Erikson, Proctor, Eatough, Jenkins, Kilpatrick, Viren, Koo, Lee, Ueberla, Mantel, Wynder, Kabat, First, Guerin, Schwartz, Balter, Aviado, Lunau,

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Rylander, Fustinoni, Kasuga, Katzenstein and Faccini, as well as several industry "symposia" and conferences. 2070140494-0630 at 0537-0553, 0595-0600, 0604-0608, 0611-0615 (US 88604).

  1. Defendants also paid a number of their consultants to submit free-standing comments to EPA in opposition to the draft Risk Assessment. The following scientists submitted separate comments to the EPA, but did not disclose their affiliation with the tobacco industry: Adlkofer; Aviado; Bridges; Bucci; Butler; Furst; Rutsch; Rylander; Schneider; Skrabanek; Springall; Sterling (individually and with Weinkam and Rosenbaum); Sullivan; Tweedie; and Ueberla. 2026127293- 7298 (Adlkofer); 2026128531-8559 (Aviado); 2026129063-9064 (Bridges); 2026127908-7912 (Bucci); 2026135132-5136 (Butler); 2026128569-8575 (Furst); 2026128171-8176 (Rutsch); 2026127783-7790 (Rylander); 2026127753-7760 (Schneider); 2023475720-5728 (Skrabanek); 2023128950-8981 (Springall); 2026127212-7236 (Sterling and Collett)); 2026128426-8477 (Sterling, Weinkam, Rosenbaum); 2026134124-4134 (Sullivan); 2026127923-8001(Tweedie); 2026127065-7102 (Ueberla) (US 92064); 2026127628-7636 (US 85564) (Crepat); 2081369202-9220 at 9205-9206 (US 27796) (list of PM consultants); Parrish TT, 1/26/05, 11147:12- 11148:22, 11160:22-11167:9.

  2. Under cover letter dated September 28, 1990, industry consultant and McGill symposium co-host Donald Ecobichon separately submitted the proceedings of the symposium directly to the EPA, urging that EPA consider the conclusions of the participants; Ecobichon did not disclose any tie to the industry. 2026134978-4978 (US 87395).

  3. In December 1990, EPA's Scientific Advisory Board held a public meeting to discuss the Draft Risk Assessment and the draft policy guide. 2040226083-6212 (JD 002884). That morning, the Tobacco Institute issued a press release claiming that there were major flaws in the draft EPA Risk Assessment and Policy Guide. Critical comments by Tobacco Institute consultants Lee, LeVois, and Fleiss are quoted in the release. However, neither their affiliation with the Tobacco Institute nor the fact they were paid industry consultants was disclosed.

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  1. The Tobacco Institute created and fostered the impression that a large number of scientists existed who, independent of the tobacco industry, opposed the EPA's proposed Risk Assessment. The press release was accompanied by 69 pages of background materials, including "an annotated list of scientific comments critical of the documents." The Tobacco Institute claimed that "dozens of scientists have challenged fundamental and technical aspects of the draft documents." 87697701-87697772 (US 85587). Of the 59 scientists included on the list, "most of if not all of the scientists commenting would have been retained by the industry." Dawson WD, 142:19-22, 143:9- 19; Dawson TT, 1/12/05, 10008:5-10011-9.

  2. Under cover letter dated October 15, 1990, Covington & Burling forwarded Lorillard a compilation of comments that were "filed by and on behalf of the tobacco industry" with respect to the draft ETS risk assessment and policy guide. The compilation contains submissions from various third party entities with varying document dates. For example, on October 1, 1990, the tobacco-industry funded Washington Legal Foundation filed comments on behalf of itself and twelve congressmen from tobacco-growing states who opposed the EPA action. WLF also issued a news release to publicize their comments. Nowhere in the submission to EPA or in the press release did WLF acknowledge its industry funding. 87653565-6820 at 3567-3583 (US 88596).

  3. Defendants' critique of the EPA continued after the final EPA Risk Assessment was published in 1992. In 1993, John Luik was hired by CECCM to write a paper titled "Pandora's Box: The Dangers of Politically Corrupted Science for Democratic Public Policy;" which attacked the

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Risk Assessment. Blackie WD, 132:19-133:10. Shook, Hardy & Bacon helped craft Luik's response to peer review criticisms after he submitted "Pandora's Box" to a journal for publication.

2024215189-5190 (US 37097); 2025495375-5376 (US 89050). In spite of this, and although Luik received funding from Reynolds, Philip Morris, and BATCo, neither the funding nor the industry support was acknowledged or disclosed in the paper, which was ultimately published in a Boston

University alumni journal called Bostonia. 2025495237-5249 (US 89052).35

  1. In 1999, B&W funded a book by Luik and fellow industry consultant Gio Gori through a third party, the Fraser Institute. Blackie WD, 143:6-12. The book, titled Passive Smoke:

The EPA's Betrayal of Science and Policy, alleged scientific misconduct on the part of the EPA in conducting its Risk Assessment. JDX2781834-1954 (JD 067661). The authors did not acknowledge tobacco industry funding. Blackie WD, 143:10-17.

According to a December 21, 1993 memorandum from CECCM Chairman John Lepere to Philip Morris's David Bushong and Matt Winokur, Lepere addressed a Philip Morris recommendation that consultants in the future disclose CECCM funding. Lepere responded:

I consider that future decisions on disclosure would best be made, taking account of your company's recommendation, on a case by case basis as each arises . . . .

The only recent project to which the recommendation would have been relevant in J.C. Luik's "Pandora's Box" project. Although the decision was not recorded in the minutes of the meeting of our Working Group held on 9 June 1993, the Group then decided, without dissent, that credit should not be given to CECCM in any publication resulting from that project. I confirmed accordingly to John Luik in writing on the following day. He submitted his paper shortly thereafter for peer-review for publication in the "Philosophy and Public Affairs" learned journal and it has also recently been part-published in the Bostonia magazine, in both cases without acknowledgment of CECCM's financial support.

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  1. Defendants knew that a one-tailed 95% confidence interval was used by EPA. See Section V(G)(2)(a)(¶¶3341-3344) for a detailed explanation of this issue. In a November 22, 1993 memorandum to industry consultant John Luik, with copies to BATCo's Chris Proctor and Philip Morris's Matt Winokus, Rothmans scientist David Rowland summarized the facts and the source of the confusion over whether the EPA had applied a 90% or 95% confidence interval. Luik was in the process at that time of finding a journal to publish his "Pandora's Box" paper, discussed above. Rowland described a meeting with counsel at Shook, Hardy & Bacon:

[SHB attorney] Bernie O'Neill and I went through the EPA document. The key to the whole thing is a short paragraph on page 5-2. . . . So the EPA used a one-tailed test of significance at p=0.05 (i.e., the 95% confidence level). To effect this, they performed a two-tailed test with 90% confidence intervals, which is equivalent. Hence the source of confusion perpetuated by Stanton Glantz and other commentators. Since getting back to the office this morning, I see that Kim Davis of Lovell, White and Durrant has come to a similar conclusion after considering pages 5-34/35 and speaking to his contacts in the US. Thus, the 90% argument is out: what has to be attacked is the EPA's assumption that they were justified in using the one-tailed test.

2025495375-5376 at 5375 (US 89051).

  1. Rowland had undertaken his investigation of the 90% confidence interval allegation after Luik was told by a journal reviewer that "Luik's claim that EPA used BOTH a 90% confidence interval and a one-tailed test is 'manifestly false.'" 2024215189-5190 at 5189 (US 37097). Notwithstanding Rowland's confirmation to Luik that EPA used a 95% confidence interval and a one-tailed test, Luik's article was not corrected. 2024595237-5249 at 4239, 5243 (US 89052).
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  1. Indeed, under questioning by the Court, Defendants' expert Dr. Bradley admitted to understanding the EPA's rationale for a one-tailed test, noting that the EPA

had stated that they [EPA] felt like you could not have reduced risk with exposure to ETS, so therefore, that was not a possibility that the relative risk could be less than 1, it could only be greater than 1, and consequently, they wanted to look only at the increase. . . .

Bradley TT, 3/14/05, 15456:23-15457:3.

  1. At the RJR Nabisco Holdings Company annual shareholders' meeting held on April 17, 1996, in Winston-Salem, corporate executives of the holding company, RJR Nabisco, and RJR Tobacco presented an overview of their companies' performance and answered questions from shareholders. One shareholder asked the companies' position on passive smoking and children, that is, whether the company believed that people should smoke around children. The answer from management did not acknowledge any health risk to children. Instead, the following ensued between the shareholder and the chairman of RJR Nabisco:

THE CHAIRMAN: I will not restrict anybody's right to smoke. If the children don't like to be in a smoky room, and I wouldn't like to be, they'll leave. I don't know if you've got any grandchildren; I do. And if there is smoke around that's uncomfortable, they'll leave. MS. DONLEY: An infant cannot leave a room. THE CHAIRMAN: Well -- Okay. At some point they begin to crawl, okay. And then they begin to walk, and so on. I guess that's enough said. Thank you very much.

520800648-0821 at 0708-0709 (US 92100).

  1. On October 2, 1997, Philip Morris Companies sent a letter to Congress in response to a request from senators asking for Philip Morris's position on smoking and health issues. In this letter, often referred to as the "Hatch Statement," the company stated that "the evidence with respect to ETS is not persuasive." 2085633197-3198 at 3198 (US 45754). Philip Morris Companies Chairman Geoffrey Bible repeated this statement during his testimony before the House Commerce Committee on January 28, 1998. 86592673-86592675 at 3344 (US 21820). Lorillard's letter to Congress, dated October 1, 1997, similarly asserted, "We do not agree that exposure to environmental tobacco smoke has been shown to be a cause of disease in nonsmokers. 86592673-2675 at 2675 (US 56175).
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  1. Defendants Continue to Obscure the Fact that ETS is Hazardous to Non Smokers a. 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).

  1. 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.

  1. 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).

  2. 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).

  3. 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.

  4. 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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  1. 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).

  1. 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).

  2. 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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  1. 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).

  1. 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).

  2. 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).

  3. 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).

  1. 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).

  1. 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).

  2. 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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  1. 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).

  2. 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.

b. 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.

  1. 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).

  2. 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).

  1. 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).

  2. 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.

  3. 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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  1. 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).

  2. 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).

  3. 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).

  4. 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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c. Other Initiatives

  1. 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.

  1. 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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  1. Scientists have been concerned about the health effects of environmental tobacco smoke since at least the late 1960s, after the issuance of the Surgeon General's Report on Smoking and Health. However, no scientific consensus about the hazards of ETS to non-smokers (particularly to babies and young children), as well as to smokers who also inhale the sidestream smoke which is a component of ETS, was reached until 1986. That year the Surgeon General issued his Report concluding that ETS is a cause of disease and that children of smoking parents have a higher frequency of respiratory infections and symptoms; the National Research Council of the National Academy of Sciences issued its report on "Environmental Tobacco Smoke, Measuring Exposures and Assessing Health Effects," concluding that ETS increases the incidence of lung cancer in nonsmokers and that children of smoking parents suffer greater respiratory problems; and the World Health Organization's International Agency for Research on Cancer (IARC) issued its Monograph concluding that tobacco smoke is carcinogenic to humans.

  2. Significantly, Defendants were well aware of, and worried about, this issue as early as 1961 when a Philip Morris scientist presented a paper showing that 84% of cigarette smoke was composed of sidestream smoke, and that sidestream smoke contained carcinogens. In addition to understanding, early on, that there was a strong possibility that ETS posed a serious health danger to smokers, Defendants also understood the financial ramifications of such a conclusion. In 1974, the Tobacco Institute's president Horace Kornegay acknowledged that indoor air restrictions designed to defuse the passive smoking issue "could lead to the virtual elimination of cigarette smoking." In 1980, the CEO of R.J. Reynolds, Ed Horrigan, stated that "We all know that probably the biggest threat to our industry is the issue of passive smoking." In the 1990s, a Philip Morris report identified "the social acceptability of smoking practices [as] the most critical issue that our industry is facing today . . . Attacks on acceptability are almost exclusively based on claims that ETS can cause diseases in the exposed population."

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  1. Despite the fact that Defendants' own scientists were increasingly persuaded of the strength of the research showing the dangers of ETS to nonsmokers, Defendants mounted a comprehensive, coordinated, international effort to undermine and discredit this research. Defendants poured money and resources into establishing a network of interlocking organizations. They identified, trained, and subsidized "friendly" scientists through their Global Consultancy Program, and sponsored symposia all over the world from Vienna to Tokyo to Bermuda to Canada featuring those "friendly" scientists, without revealing their substantial financial ties to Defendants. They conducted a mammoth national and international public relations campaign to criticize and trivialize scientific reports demonstrating the health hazards of ETS to nonsmokers and smokers.

  2. Defendants still continue to deny the full extent to which ETS can harm nonsmokers and smokers. Some Defendants, such as BATCo, R. J. Reynolds, and Lorillard, flatly deny that secondhand smoke causes disease and other adverse health effects; some, such as Brown & Williamson, claim it's still "an open question"; and others, such as Philip Morris, say that they don't take a position and that the public should follow the recommendations of the public health authorities. To this day, no Defendant fully acknowledges that the danger exists.

At Various Times, Defendants Attempted to and Did Suppress and Conceal

Scientific Research and Destroy Documents Relevant to Their Public and Litigation Positions 3863. Defendants attempted to and, at times, did prevent/stop ongoing research, hide

existing research, and destroy sensitive documents in order to protect their public positions on smoking and health, avoid or limit liability for smoking and health related claims in litigation, and prevent regulatory limitations on the cigarette industry.

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  1. The evidence of Defendants' suppression of research and destruction of documents consists of events which often seem to be unrelated and to lack a unifying thread. Defendants claim these facts, most of which are undisputed, amount to no more than a string of isolated instances which prove nothing. This explanation misses the point. The evidence is clear that on a significant number of occasions, Defendants did in fact suppress research and destroy documents to protect themselves and the industry. The fact that much additional evidence may be lacking because Defendants were successful in their efforts to suppress, conceal, and destroy materials that would have reflected adversely on their corporate interests is hardly a justification for ignoring the evidence that does exist. Moreover, in those instances where Defendants did successfully suppress, conceal, and destroy materials, it is most unlikely that there would be any evidence to reflect that since it would no longer exist. By destroying evidence, Defendants make it virtually impossible to know what materials existed prior to their destruction.