Reports that Matter

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

Defendants' Marketing Is a Substantial Contributing Factor to Youth

Section 73 of 129

Defendants' Marketing Is a Substantial Contributing Factor to Youth

Smoking Initiation 2647. Cigarette marketing, which includes both advertising and promotion, is designed to

play a key role in the process of recruiting young, new smokers by exposing young people to massive amounts of imagery associating positive qualities with cigarette smoking. Research in psychology and cognitive neuroscience demonstrates how powerful such imagery can be, particularly for young people, in suppressing perception of risk and encouraging behavior. Slovic WD, 53:22-63:11 Defendants' own statistics demonstrate how successful they have been in marketing their three main youth brands: Philip Morris's Marlboro, RJR's Camel, and Lorillard's Newport.

a. Development of the Link Between Marketing and Youth Smoking (1) No Single-Source Causative Factor Can Describe the Complex Link Between Marketing and Youth Smoking 2648. In 1989, the Surgeon General concluded: There is no scientifically rigorous study available to the public that provides a definitive answer to the basic question of whether advertising and promotion increase the level of tobacco consumption. Given the complexity of the issue, none is likely to be forthcoming in the foreseeable future.

(no bates) (JE 063621 at 516-17) (1989 Surgeon General Report).

  1. In her 1994 Report, Youth and Tobacco: Preventing Tobacco Use Among Young People, the Surgeon General echoed these sentiments and further warned that the debate "about whether tobacco promotion 'causes' young people to smoke" was "misguided because single-source causation is probably too simple an explanation for any social phenomenon." (no bates) (US 64693 at iii) (1994 Surgeon General Report); see also Eriksen TT, 2/2/05, 11827:8-11828:1 (agreeing that the Surgeon General's major conclusion does not say that cigarette advertising causes smoking initiation).
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  1. Social scientists are increasingly uncomfortable applying the term "causation" and its corresponding rigorous criteria, which require proof of consistency, strength, specificity, temporality, and coherence of the association, in describing social behavioral phenomena.

VXA1601844-2232 at 1874 (US 64057). Government expert Dr. Dean Krugman noted he would

"never phrase the question [of the relationship between marketing and youth smoking initiation] in a causal manner":

You cannot look at advertising and promotion and get a direct causal link to behavior. That has been well cited in the literature, it's been well cited in the 1994 Surgeon General's Report, that the whole notion of positing a causal question is really not germane to understanding if there is influence between advertising and sales promotion and youth behavior.

Krugman TT, 12/16/04, 8901:2-4, 8915:10-18; see also Krugman WD, 158:18-159:4 ("the advertising/promotion and smoking initiation/continuation relationship is not an empirically verifiable phenomenon"). For more on Dr. Krugman's credentials, see ¶2681, infra.

(2) Public Health Authorities Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation

  1. In her 1994 Report, the Surgeon General pointed out:

A substantial and growing body of scientific literature has reported on young people's awareness of, and attitudes about, cigarette advertising and promotional activities. Research has also focused on the effects of these activities on the psychosocial risk factors for beginning to smoke. Considered together, these studies offer a compelling argument for the mediated relationship of cigarette advertising and adolescent smoking.

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UXA013058-0484 at 0362 (US 64693).

  1. In the same Report, the Surgeon General explicitly addressed and rejected Defendants' claims that their marketing activities are directed only toward adult brand-switchers:

Even though the tobacco industry asserts that the sole purpose of advertising and promotional activities is to maintain and potentially increase market shares of adult consumers, it appears that some young people are recruited to smoking by brand advertising. Two sources of epidemiologic data support the Surgeon General's assertion. Adolescents consistently smoke the most advertised brands of cigarettes. . . . Moreover, following the introduction of advertisements that appeal to young people, the prevalence of the use of those brands -- or even the prevalence of smoking altogether -- increases.

UXA013058-0484 at 0368 (US 64693).

  1. The Surgeon General further noted in the 1994 Report:

Current research suggests that pervasive tobacco promotion has two major effects: it creates the perception that more people smoke than actually do, and it provides a conduit between actual self-image and ideal self-image -- in other words, smoking is made to look cool. Whether causal or not, these effects foster the uptake of smoking, initiating for many a dismal and relentless chain of events.

UXA013058-0484 at 0167 (US 64693).

  1. In the 1998 Surgeon General's Report, Tobacco Use Among U.S. Racial/Ethnic

Minority Groups, the Surgeon General concluded that:

Advertising is an important influence on tobacco use initiation and maintenance. . . . Cigarette advertising and promotion may stimulate cigarette consumption by . . . encouraging children and adolescents to experiment with and initiate regular use of cigarettes. . . . In addition, cigarette advertising appears to influence the perceptions of youths and adults about the pervasiveness of cigarette smoking and the images they hold of smokers.

This 1998 Report also pointed out that:

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Available data indicate that young people smoke the brands that are most heavily advertised. In 1993, the three most heavily advertised brands of cigarettes, Marlboro, Camel, and Newport, were the most commonly purchased brands among adolescent smokers.

HHA0430685-1029 at 0914 (US 64831).

  1. In the 2000 Surgeon General's Report, Reducing Tobacco Use, the Surgeon General stated that:

[i]ntensive review of the available data . . . suggests a positive correlation between level of advertising and overall tobacco consumption -- that is, as advertising funds increase, the amount of tobacco products purchased by consumers also increases.

Moreover,

[i]ndirect evidence of the importance of advertising and promotion to the tobacco industry is provided by surveys that suggest that most adolescents can recall certain tobacco advertisements, logos, or brand insignia; these surveys correlate such recall with smoking intent, initiation, or level of consumption.

VXA1240104-0567 at 0272 (US 64316).

  1. In her 2000 Report the Surgeon General rejected Defendants' claims that their main purpose in advertising is to maintain brand loyalty and increase market share among current smokers and found that "[c]onsiderable evidence" supported the hypothesis that "advertising and promotion recruit new smokers." The Surgeon General stated:

Attempts to regulate advertising and promotion of tobacco products were initiated in the United States almost immediately after the appearance of the 1964 report to the Surgeon General on the health consequences of smoking. Underlying these attempts is the hypothesis that advertising and promotion recruit new smokers and retain current ones, thereby perpetuating a great risk to public health. The tobacco industry asserts that the purpose of marketing is to maintain brand loyalty. Considerable evidence has accumulated

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showing that advertising and promotion are perhaps the main motivators for adopting and maintaining tobacco use.

Id. at 0129.

  1. Regarding the Joe Camel campaign, the Surgeon General noted in the 2000 Report:

The role of advertising is perhaps best epitomized by R.J. Reynolds Tobacco Company's Camel brand campaign (initiated in 1988) using the cartoon character 'Joe Camel.' Considerable research has demonstrated the appeal of this character to young people and the influence that the advertising campaign had on minors' understanding of tobacco use and on their decision to smoke.

Moreover,

an increase in smoking initiation among adolescents during 1985- 1989 has been ecologically associated with considerable increases in promotion expenditures [by the tobacco industry], as exemplified by the Joe Camel campaign.

Id. at 0130, 0272.

  1. The 1992 United Kingdom Department of Health, Economics and Operational

Research Division publication, "The Effect of Tobacco Advertising on Tobacco Consumption: A

Discussion Document Reviewing the Evidence," concluded that:

the great majority of the results [of aggregate statistical studies] point in the same direction -- towards positive impact [on tobacco consumption]. The balance of evidence thus supports the conclusion that advertising does have a positive impact on consumption.

0212977-3036 at 0243 (US 34282). The Department of Health further concluded, regarding studies of advertising bans in other countries, that "[i]n each case the banning of advertising was followed by a fall in smoking on a scale which cannot reasonably be attributed to other factors [other than the advertising ban]." Id.

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  1. The Institute of Medicine, chartered in 1970 by the National Academy of Sciences, which advises the Federal government on science, engineering and medicare and enlists distinguished members of the appropriate professions in the examination of policy matters pertaining to the health of the public, earlier reached a similar conclusion. The 1994 Institute of Medicine publication "Growing Up Tobacco Free, Preventing Nicotine Addiction in Children and Youths" concluded:

The images typically associated with advertising and promotion convey the message that tobacco use is a desirable, socially approved, safe and healthful, and widely practiced behavior among adults, whom children and young people want to emulate. As a result, tobacco advertising and promotion undoubtedly contribute to multiple and convergent psychological influences that lead children and youths to begin using these products and to become addicted to them.

HHA2242048-2211 at 2122 (US 33038).

  1. Other reputable experts have concurred with the conclusions drawn by the Surgeon

General. NCI's Monograph 14: Changing Adolescent Smoking Prevalence, a 2001 National Cancer

Institute publication, found:

Tobacco advertising and promotional activities are an important catalyst in the smoking initiation process. A review of the existing evidence on the relationship between exposure to advertising or having a tobacco promotional item and smoking behavior . . . suggests that there is a causal relationship between tobacco marketing and smoking initiation.

CXA0240054-0325 at 0079 (US 72977).

  1. Regarding the numerous studies which examine the role of tobacco advertising and promotion in smoking initiation, NCI's Monograph 14 concluded that:

When [these studies are] viewed as a group, . . . the conclusion that there is a causal relationship between tobacco marketing and smoking

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initiation seems unassailable. . . . . [T]obacco advertisements are particularly attractive to adolescents who, for one reason or another, are looking for an identity that the images are carefully designed to offer. (3) Independent Studies Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation 2662. Several independent longitudinal studies have demonstrated the positive link between

marketing and youth smoking. "Longitudinal studies, which collect data at two or more points in time, can help sort out the 'directionality' of the relationship between advertising and smoking behavior." Eriksen (Liability) WD, 75:15-17; see also Biglan TT, 1/11/05, 9638:11-20; Eriksen TT, 1/27/05, 11471:12-11472:22.

  1. Unfortunately, "[t]here is not one longitudinal study that directly measures the impact of exposure to cigarette marketing on the one hand, with initiation of smoking on the other." Eriksen TT, 2/2/05, 11798:3-6; see also Biglan TT, 1/11/05, 9670:4-12 (testifying that he cannot "identify a single longitudinal study that measures the relationship between the actual marketing practices on the one hand -- not receptivity or susceptibility or attitudes or needs -- but independently measures . . . defendants' cigarette marketing as a variable in its relationship to actual smoking behavior.") This is largely because of widespread concerns about the ethical issues raised in devising a controlled experiment which would expose children and young people to cigarette advertising for purposes of comparing them to children and young people not exposed to such advertising.

  2. As a result, longitudinal studies have been forced to rely upon "proxies" for exposure, such as "susceptibility," and "receptivity" to smoking initiation. For example, one of the receptivity measures used in studies is the possession of cigarette company promotional items. However, there is concern that the studies fail to account for "unobserved preferences" for smoking that may have "already existed among the adolescents studied." As a result, a simple correlation between the possession of such smoking-related items and future smoking does not indicate that the items caused smoking. Heckman WD, 31:6-19.

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  1. Recognizing the limitations of such longitudinal studies, there have been four which have provided useful information about the relationship between marketing and youth smoking:

C Pierce, et al., Journal of the American Medical Association, 279(7): 511-515 (1998) C Biener and Siegel, American Journal of Public Health, 90:407-411 (2000) C Sargent, et al., Preventive Medicine, 30:320-327 (2000) C Choi, et al., American Journal of Preventive Medicine, 22(4):228-233 (2002).

Eriksen (Liability) WD, 76:16-78:22; (no bates) (US 17684).

  1. The Pierce study is a prospective study that examined whether California adolescents who had never smoked, "who had a favorite cigarette advertisement, . . . or were willing to use a cigarette promotional item, were significantly more likely to progress toward smoking, including increased susceptibility and intention to smoke" than adolescents not susceptible to smoking. Eriksen (Liability) WD, 76:16-77:2; Wecker WD, 54:23-55:19. Pierce concluded that "tobacco promotional items are causally related to the onset of smoking." Wecker WD, 55:20-23 (quoting Pierce). However, the Pierce study does not purport to determine the effect of marketing on actual smoking behavior, but rather on progression along a smoking susceptibility continuum. Eriksen TT, 1/27/05, 11543:19-11544:11.
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  1. The 2000 Biener & Siegel study was similar in design in many respects to the 1998 Pierce study. Unlike Pierce, Biener & Siegel's "baseline" included youth who had smoked one cigarette, in addition to older smokers. Biener AL & Siegel M., "Tobacco marketing and adolescent smoking: more support for a causal inference," American Journal of Public Health 90(3):407-411 (2000). In addition, Biener & Siegel measured progression to smoking behavior (i.e., smoking at least 100 cigarettes), not just susceptibility to smoking. Id. at 61:13-15. Biener & Siegel "attempt[] to improve upon the Pierce study" "by examining the connection between advertising (using possession of a branded promotional item as a receptivity proxy) and actual adolescent smoking behavior." Heckman WD, 37:6-12. The study found a statistically significant relationship between "receptivity" and progression to established smoking, and specifically found that, among persons who reported smoking less than one cigarette in their lifetime in 1993 (ages twelve through fifteen), but who had a favorite cigarette advertisement or who owned a cigarette brand promotion item, 46% progressed to established smoking (ages sixteen through nineteen). See Eriksen (Liability) WD, 77:23-78:5.

  2. In the Sargent (2000) study, researchers in New Hampshire reported the results of a longitudinal study conducted among a cohort of rural Vermont students. Baseline data (data from the starting point of the study) were collected in 1996, with follow up surveys in 1997 and 1998. The researchers found that receptivity to cigarette advertising (owning or being willing to own a cigarette promotional item) at baseline was associated with higher smoking rates at the eighteen month follow-up. After controlling for possible confounding factors, the researchers reported: "our study documents a strong and statistically significant association between receptivity to cigarette promotions and increased smoking uptake over time in a cohort of adolescents." Sargent, et al., Preventive Medicine 30:320-327, 2000.

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  1. The Choi (2002) study measured progression to smoking in 1996 among young persons who reported being confirmed "never smokers" in 1993 (ages twelve through seventeen), but who had a favorite cigarette advertisement, or who owned or were willing to own a cigarette brand promotion item, and concluded that 34% of all experimentation with cigarettes in California between 1993 and 1996 (ages fifteen through twenty) was attributable to tobacco marketing activities. Pierce JP, Choi WS, Gilpin EA, Farkas AJ & Berry CC., "Tobacco industry promotion of cigarettes and adolescent smoking," JAMA 279 (7): 511-515 (1998).

  2. Finally, the Cochrane Review, a "systematic review [of nine longitudinal studies] on the impact of tobacco marketing on adolescent smoking behaviors," concluded: "Longitudinal studies suggest that exposure to tobacco advertising and promotion is associated with the likelihood that adolescents will start to smoke." Eriksen (Liability) WD, 79:5-14, 79:24-27.

  3. While it is true that no study has ever attempted to measure the direct link between exposure to marketing and youth smoking initiation or continuation, all of the studies discussed used proxies to study that relationship and, most significantly, all demonstrated a positive correlation between marketing and promotion on the one hand and youth smoking progression on the other.

(4) Credible Expert Witnesses Have Found that Marketing Is a Substantial Contributing Factor to Youth Smoking Initiation 2672. The testimony of the expert witnesses establishes that the weight of all available

evidence, including survey data, scientific studies and experiments, and behavioral and econometric studies, supports the conclusion that cigarette marketing is a substantial contributing factor in the smoking behavior of young people, including the decision to begin smoking and the decision to continue smoking. Eriksen (Liability) WD, 1:20-3:19.

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  1. Despite Defendants' frequent public assertions that cigarette marketing only affects brand switching and brand loyalty, marketing has been and continues to be enormously effective in influencing young people to smoke. For example: (a) young people who are more familiar with the advertising are more likely to begin smoking; (b) increased expenditures on cigarette marketing campaigns have been associated with increases in the incidence of smoking among adolescents; (c) adolescents who are exposed to more cigarette advertising are more likely to begin smoking; and (d) the brands that are most popular with young people are the ones where advertisements are designed to appeal to their interest and vulnerability and where the most money has been spent on advertising and promotional activities. Biglan WD, 36-95; Dolan WD, 147:10-148:18; Krugman WD, 84-149.

  2. The evidence is overwhelming that Defendants intentionally exploit adolescents' vulnerability to imagery by creating advertising that utilizes the themes of independence, adventurousness, sophistication, glamour, athleticism, social inclusion, sexual attractiveness, thinness, popularity, rebelliousness, and being "cool." Cigarette Company Defendants have, over the years, placed this advertising in magazines, on billboards, at point of sale ( or "POS," meaning marketing materials placed in retail locations such as convenience stores), and in other venues that historically and currently reach millions of teens. Krugman WD, 100-139.

  3. Knowing that advertising and promotion stimulated the demand for cigarettes, Defendants used their knowledge of young people, gained through tracking youth behavior and preferences, in order to create marketing campaigns (including advertising, promotion, and couponing) that would appeal to youth, in order to stimulate youth smoking initiation and ensure that young smokers would select their brands. Dolan WD, 24:3-16, 65:7-74:23; Chaloupka WD, 30:8- 32:20; Biglan WD, 100-379; Krugman WD, 50:1-149:23.

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  1. The messages, images, and merchandise used in cigarette advertising have corresponded precisely to adolescent psychology. Teens smoke the most heavily advertised brands: Philip Morris's Marlboro, Lorillard's Newport, and B&W's Kool. Biglan WD, 36-95.

  2. Defendants' marketing activities brought new smokers into the market and retained existing smokers in the market. Dolan WD, 24:3-16.

  3. Dr. Robert Dolan, Dean of the University of Michigan School of Business, former Harvard Business School Professor, and widely used marketing consultant, while acknowledging that marketing practices of the tobacco companies were not the only factor impacting the likelihood of an individual's smoking, and that behavior of other family members and peers are other contributing factors, still concluded that the marketing of the tobacco companies, carried out in a highly sophisticated and heavily financed fashion, was a substantial contributing factor to the number of teenagers who began smoking, the likelihood they would continue as smokers, and their consumption rate. Dolan WD, 24:11-16.

  4. Dr. Anthony Biglan, currently a Senior Scientist and Director at the Oregon Research Institute, has been conducting research on adolescent smoking for over twenty-five years. He has written over 100 publications on adolescent problem behavior, particularly smoking, and has completed grant projects for the National Cancer Institute and the National Institute on Drug Abuse. From September 2000 through June 2001, Dr. Biglan was a Fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford, and also served as a Participant on the Behavior Change Expert Panel of the Office of White House National Drug Control Policy from 1998 to 2001.

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  1. Upon reviewing the published literature on adolescent development, his own research and clinical work with adolescents and their families, and Defendants' internal documents, Dr. Biglan concluded that

tobacco companies understand what motivates adolescents to smoke, such as desires to be popular, masculine, independent, cool, rebellious, or to have excitement. The companies use their understanding of adolescent needs to create images in marketing their brands (e.g., Marlboro, Camel, Newport) that convey to adolescents they can achieve such desired outcomes by smoking these brands. In short, tobacco companies market cigarettes to adolescents by exploiting the psychological needs of adolescents.

Biglan WD, 37: 1-10. The central purpose of the tobacco companies' image advertising is motivating adolescents to smoke.

These studies show that adolescents have distinct images of smokers and they are more likely to smoke if their self-image is like the image they have of a smoker. . . . [T]he images adolescents have of smokers of specific brands are precisely the images that the tobacco companies convey in their marketing.

Id. at 95:23-96:5.

  1. Dr. Dean Krugman, Professor and Chair of the Department of Advertising and Public

Relations at the University of Georgia, has published over thirty peer-reviewed articles on marketing, particularly tobacco marketing, including an article, titled "Teenage Exposure to Cigarette

Media, and the Journal of Marketing Research, and is currently a Member of the Editorial Board of the Journal of Advertising.

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  1. Dr. Krugman concluded that the tobacco industry knowingly targeted adolescents under eighteen years of age. In his estimation, the marketing strategies of the tobacco industry have been effective, thorough and well-planned efforts to attract teenagers to cigarettes and contribute to the continuance of teenage smoking. Krugman WD,17:4-7.

Tobacco companies: (1) employed the concept of peers in order to market to teenagers; (2) use images and themes in their marketing that appeal to teenagers; and (3) employ advertising and promotion strategies to knowingly reach teenagers. Brand share data confirms that the leading brands among teenagers are image oriented and have been among the most heavily supported brands by advertising and promotion. Taking all these elements together, I have reached . . . [the] conclusion, that the tobacco industry has been effective in the planning and execution of cigarette advertising and promotion to teenagers.

Id. at 84:25-85:8.

It is my conclusion that advertising and promotion are an important part of the smoking uptake and continuation process. I am very satisfied after examining the total situation -- industry investments, the actual advertising and sales promotion, academic and industry research, industry documents and industry comments -- that advertising and sales promotion are influential in the initiation and continuation of smoking among teenagers.

Id. at 160:8-12.

  1. Dr. Michael Eriksen was the longest serving Director of the Public Health Service's

Center for Disease Control and Prevention's Office of Smoking and Health ("OSH"), the primary federal agency responsible for coordinating tobacco and health issues. From 1992 to 2000 at OSH,

Dr. Eriksen was responsible for the preparation of the Reports of the Surgeon General. In addition,

Dr. Eriksen has researched and published about the tobacco industry and tobacco-related disease control and prevention for over twenty years. Dr. Eriksen has written nearly eighty peer-reviewed articles and books on tobacco-related issues and has received numerous professional awards and honors.

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  1. Dr. Eriksen, relying upon "the weight of the evidence," including numerous scientific studies, Reports of the Surgeon General, and other reliable publications and reports, concluded that

Defendants' cigarette marketing is a substantial contributing factor to youth smoking initiation and continuation. Eriksen (Liability) WD, 55:4-8. Dr. Eriksen also concluded that adolescent smoking initiation is an immature behavior, one driven by the psychosocial development of adolescents and the cigarette brand imagery that corresponds precisely to adolescent aspirations. Eriksen (Liability)

WD, 3:14-16.

  1. Dr. Eriksen explained that he used the term "substantial contributing factor" to mean

"one cause among many." Eriksen TT, 2/02/05, 11892:7-15, 11893:18-25, 11894:3-19. He provided extensive and clear testimony on this point:

Q. And the question there is, "Is there any difference in your mind between saying that advertising is a substantial contributing factor to the decision to smoke and saying that advertising is the cause of the decision to smoke?" . . .

A. Yes.

Q. Dr. Eriksen, your testimony at lines 20 of page 92 through line 5 of 93, was "That the language that I've used in my depositions and testimony and statement that there will be consistency between using the term contributing factor and a cause implying -- as long as it's understood it's not being said to be the only cause, but it's one factor among many or one cause among many. I would generally be comfortable with that being used interchangeably." And is that consistent with the testimony that you were providing today?

A. It certainly was my intent to be consistent with that. . . . I'm comfortable with using cause if it's one cause of many. It's in

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my written testimony to that effect, and that's how I believed I was answering the question in the context of cause. If it's meant the only cause, I don't agree that's the only cause. But if it's one cause of many I'm comfortable with using the term cause. Q. So by choosing the term "substantial contributing factor," you meant to indicate that marketing was one cause among many? A. Yes, I meant it to mean a cause, but not the cause.

Eriksen TT, 2/02/05, 11892:7-15, 11893:18-25, 11894:3-19.

  1. Dr. Biglan's views were consistent with that provided by Dr. Eriksen. When asked if marketing was the "cause" of smoking initiation, Dr. Biglan answered:

That word is not used much in the behavioral sciences any more. The term "influences" has come to be used largely because it better connotes the fact that behavior is multiply determined and so no single variable cause is -- of behavior. Behavior is influenced by a set of variables.

Biglan TT, 1/11/05, 9681:3-8.

  1. The testimony of all of the Government's marketing experts, cited in the Findings of Fact contained in this Section, was credible and is accepted by the Court. First, the academic and professional credentials and experience of Drs. Eriksen, Biglan, Krugman, Chaloupka, and Dolan were outstanding. Second, each and every one had studied smoking and health issues for many years and had written numerous peer-reviewed articles in the field. Third, each had significant non- academic "real world" experience in the field. For example, Dr. Dolan has consulted to a number of Fortune 500 companies, Dr. Eriksen directed the Office of Smoking and Health at the Department of Health and Human Services for many years, and Dr. Biglan served as a member of a White House drug control panel. Fourth, all were fully conversant with the internal documents and practices of
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Defendants. Finally, many of their conclusions were consistent, even though they each drew from different studies and segments of the field.

  1. In contrast, Defendants called a single expert on the topic of marketing, Dr. Richard Semenik, who is the Dean of the College of Business at Montana State University in Bozeman and has researched, written, and taught on marketing and consumer behavior for over thirty years. Dr. Semenik offered the opinion that cigarette advertising is a weak force, and that the cigarette market is a mature market similar to laundry detergent and chewing gum, i.e., one which is not growing by bringing in new consumers. Dr. Semenik admitted that he did not review any internal company documents for this case. Dr. Semenik "didn't review the deposition testimony of any tobacco company employees at all in this case" and he "did not review the written direct testimony filed in this case or any trial testimony of any of the tobacco companies' witnesses." He also did not review any tobacco company point-of-sale marketing pieces, any direct mail pieces, or any of the tobacco companies' direct mail marketing databases. He provided no testimony about the extent and impact of any of Defendants' marketing efforts, whether through television, on billboards, in magazines or at retail. His reason for failing to review any of these materials was that Defendants' internal marketing documents are "irrelevant" to his expert opinions. Semenik TT, 4/4/05, 17644:9-12, 17738:7-25, 17669:4-6, 17667:9-14, 17666:20-23, 17666:24-17667:2, 17674:11-25, 17680:15-25. Finally, Dr. Semenik failed to cite a single article, peer-reviewed or not, to support his mature market theory. Semenik TT, 4/4/05, 17690:21-24. For all these reasons, the Court does not find Dr. Semenik's analysis and conclusions persuasive and cannot credit them.
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b. The Ubiquity of Defendants' Marketing Normalizes and Legitimizes Smoking for Youth

  1. Defendants have consistently, over the past fifty years, spent vast sums of money on advertising and promotion, ensuring that their brand imagery would be repeated frequently and in as many different media as possible so that the message is received by the maximum number of smokers and potential smokers. Krugman WD, 21:1-31:23.

  2. Some cigarette marketing vehicles reach a wider range of viewers, readers or customers than other vehicles. For example, television, outdoor advertising (billboards), and in-store or point-of-sale displays are less selective and tend to reach more people than more targeted vehicles like magazines. Krugman WD, 47:2-48:10.

  3. Although there is no one framework for understanding social influences, media play a significant role in the way individuals develop ideas. (Bandura, 1994). Moreover, the cumulative impact of media assists in cultivating tastes and expectations among audience members. (Webster and Phalen, 1997). In short, because people learn how to act, at least in part, by observing what happens in the media, the media often help set the tone for how they act. Krugman WD, 49:10-17.

  4. Between 1952 and 1962, the six leading cigarette manufacturers, including these Defendants, spent approximately $1.2 billion for television, newspaper, and general magazine advertising. Their total expenditures for all media in this time period may have been as high as $2 billion. Between 1963 and 1970, they spent over $1.5 billion on television advertising, and over $180 million on radio advertising. It has been estimated that on a single evening in this time period, Defendants' television cigarette advertising reached 46% of thirteen to seventeen year olds, 38% of the United States population eighteen years old and over, and 26% of the population ages two to twelve. 03573546-3751 at Table 10 (US 75032); FTCDOCS00491753-1821 at Table 7 (JD-003567).

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  1. In recognition of the enormous impact of television advertising, on January 1, 1971, Congress imposed a broadcast ban that ended all cigarette advertisements on television. On January 1, 1971, alone, the last day on which such advertisements were permitted, Cigarette Company Defendants spent over $2 million, three times as much as was spent on an average day in 1970. Id. at FTCDOCS00491753-1821 at Table 7 (JD 003567).

  2. Following the broadcast ban that banned their advertisements from television, Cigarette Company Defendants turned to billboard advertising, newspapers, and magazines as a substitute to reach massive numbers of young people. Defendants' spending on newspapers and magazines increased close to three-fold after the television ban, from over $64 million in 1970 to nearly $160 million in 1971, and spending on outdoor advertising (mostly billboards) increased five- fold from under $12 million in 1970 to over $60 million in 1971. Id. at Tables 7, 8.

  3. As a May 1981 FTC Staff Report noted, by 1979, "[a]lmost half of all billboards in the United States advertise cigarettes." The Report continued:

In 1979, cigarettes also continued to be the product most heavily advertised in newspapers. . . . The tobacco industry dominated outdoor advertising even more than it does magazines and newspapers. The top five outdoor advertisers in 1979 were the five largest cigarette companies.

(no bates) (JD 004744 at ch. 2, 2-5).

  1. In his 1998 Report, the Surgeon General concluded: The tobacco companies both in the past and present invest an enormous amount of money in cigarette advertising and promotion. The dollars invested, and the artful way that advertising and
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promotion are employed, make cigarettes a ubiquitous part of the American culture and landscape accessible to teenagers. Testimony of the tobacco companies' employees and many internal documents demonstrate that the tobacco companies' ubiquitous marketing communications have been well planned and far reaching in terms of making cigarette smoking an ever present part of our culture.

Cigarette brand names, logos, and advertising messages are pervasive. (no bates) (US 64831) (1998 Surgeon General Report at 220). While cigarette industry advertising and sales promotion strategies have changed quickly over the years in response to different types of regulation, cigarette products still maintain a very high profile in terms of images and messages reaching teenagers. By making their cigarette products and messages ubiquitous, the tobacco companies normalize smoking and make smoking an acceptable behavior among adolescents. Tobacco companies' plans indicate their intent to make their brands an ever-present part of the culture, "while becoming a fabric of the community." 2041940822-0852 at 0822 (US 38244).

  1. Teenagers in particular have a heightened sensitivity to image and promotion themes because they are at a stage in their psychosocial development when they are struggling to define their own identities. (no bates) (US 64276 at 106). Teenagers actively search for cues in advertising and amongst peers for the "right" way to look and behave. Krugman WD, 49:19-23. A 2004 Report of the American Psychological Association notes that advertising is particularly effective with teenagers when it normalizes smoking (and alcohol consumption). Id. at 50:4-12. In this way, ubiquitous cigarette advertising and sales promotion serve to normalize and socially sanction smoking.

  2. In sum, the ubiquity of Defendants' marketing increases young peoples' perceptions of the prevalence of smoking ("everyone is doing it"), normalizes smoking, and connects positive imagery (sex appeal, popularity, peer approval, success, and independence) with smoking, all of which work together to encourage youth smoking initiation and continued consumption. Krugman

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c. Risk Perception: The Inability of Youth to Grasp the Full Implications of Smoking 2699. Dr. Paul Slovic, an expert in the field of risk perception, was one of the first to

publish research in this area and recently published a book, titled "Smoking: Risk, Perception, and Policy." He has been a Professor in the Department of Psychology at the University of Oregon since 1986, and the President of Decision Research in Eugene, Oregon. Dr. Slovic is a charter fellow of the American Psychological Society and a fellow of the American Psychological Association. In addition, he currently serves on the editorial boards of Risk Analysis, Risk Abstracts, Behavioral Decision Making, Risk, Decision and Policy, and the Journal of Psychology and Financial Markets.

  1. Dr. Slovic concluded that most people have a deficient appreciation of the risks associated with smoking, particularly when they begin to smoke. See generally Slovic WD. Many people, and particularly young people, do not adequately understand and appreciate the cumulative risk that smoking entails. Most smokers only begin to think of risk after they have started to smoke regularly and have already become addicted. At that point, more than 80% of smokers wish they had never begun to smoke. Id. at 29:4-30:2. As people become more experienced smokers, they overwhelmingly regret having started smoking. Paul Slovic, Annenberg Survey ch. 6 (2001). Smokers in the Annenberg survey were asked, "If you had to do it over again, would you start smoking?" More than 85% of adult smokers and about 80% of young smokers answered no. Id.

  2. Many young smokers tend to believe that smoking the "very next cigarette" poses little or no risk to their health. Because the most serious harmful consequences of smoking are cumulative, and occur in the distant future, and because teenagers are focused on the present rather than the future and lack an understanding of the addictive properties of cigarettes, it is unlikely that the decisions by teenagers to initiate smoking are influenced by concerns about future harmful consequences. Slovic WD, 11:18-12:3.

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  1. Initiation of smoking before the age of twenty-one is particularly harmful because, the earlier one begins smoking, the more likely one will become addicted, the less likely one will be able to quit, and the more likely one will develop a smoking-related disease. VXA130158-0484 at 0203-0207 (US 64693) (1994 Surgeon General Report).

  2. Cigarette smoking, particularly that begun by young people, continues to be the leading cause of preventable disease and premature mortality in the United States. Of children and adolescents who are regular smokers, one out of three will die of smoking-related disease. Eriksen (Liability) WD, 3:10-19.

  3. Recent studies indicate that early onset of cigarette smoking is associated with heavier smoking. Heavier smokers are not only more likely to experience tobacco-related health problems, but they also are the least likely to quit smoking. The level of dependence on nicotine in adults has been found to be inversely related to the age of initiation of smoking.

  4. Dr. Neal Benowitz, an expert in toxicology and pharmacology, is Professor of Medicine, Psychiatry and Biopharmaceutical Sciences at the University of California, San Francisco ("UCSF"). He also serves as Chief of UCSF's Division of Clinical Pharmacology and Experimental Therapeutics, as well as Vice Chair of the Department of Biopharmaceutical Sciences at UCSF's School of Pharmacy. In addition, Dr. Benowitz is an attending physician and consultant at the San Francisco General Hospital. Dr. Benowitz has worked extensively on smoking and health issues.

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He has written over 300 peer-reviewed articles and almost fifty book chapters on subjects related to the pharmacology of nicotine and nicotine addiction. He was also a senior scientific editor and contributing author of the 1988 Report of the Surgeon General. Dr. Benowitz also served as a peer reviewer for the Surgeon General's 1994 Report concerning tobacco use by youth. Based on his academic credentials, his clinical experience as an attending and consulting physician, his work for the Surgeon General, and his prodigious output of peer-reviewed articles, the Court credits his testimony. According to Dr. Benowitz:

The earlier a person starts smoking cigarettes, the more highly dependent they will be as an adult, and the more difficult it will be for them to quit. In addition, the earlier someone starts smoking, the higher that person's smoking rate is later on in life.

Benowitz WD, 40:8-11; VXA0130158-0484 at 0256-0260 (US 64693) (1994 Surgeon General Report, Tables 20 and 22).

  1. Similarly, Dr. Neil Weinstein found that most people do not appreciate the risks associated with smoking in order to make informed decisions about whether to commence or continue smoking. Dr. Weinstein is a psychologist with expertise in the study of risk perception, risk communication, and health protective behavior. He has been studying individual risk perception since 1974 and wrote a chapter in the NCI's Monograph 13 on consumers' perceptions of light cigarettes. See generally Weinstein WD.

  2. Most people do not possess a meaningful knowledge of the adverse health effects of smoking. Most people do not have a complete understanding of the many serious diseases caused by smoking, the true nature of addiction, or what it would be like to experience either those diseases or addiction itself. Rather, most people have only a superficial awareness that smoking is dangerous.

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Slovic WD, 20:16-21:5. Surveys have demonstrated that individuals have little knowledge of the reality of the pain, suffering, and despair of those with lung cancer, emphysema, congestive heart failure, and other smoking related diseases. One survey showed that 53% of adolescent smokers and 49% of adult smokers know "a little" or "not much at all" about the pain and suffering associated with lung cancer. Likewise, 68% of adolescent smokers and 54% of adult smokers know "a little" or "not much at all" about the pain and suffering associated with emphysema. More than 70% of adults and 80% of adolescents overestimated the likelihood that lung cancer is curable. Slovic WD, 19:4-20:15 (citing Weinstein, N.D., Slovic, P., Waters, E., and Gibson, G., Public Understanding of the Illnesses Caused by Cigarette Smoking, Nicotine and Tobacco Research (April 2004)).

  1. Underage smokers and potential smokers are particularly vulnerable to cigarette marketing because they are not capable of making a fully informed decision whether to start or continue smoking for a variety of reasons, including the fact that they underestimate personal risks and lack the judgment which can only be developed through experience. Youth also fail to appreciate the risks and consequences of addiction. VXA0300208-0848 (US 64591) (1988 Surgeon General Report); Benowitz WD, 47:3-48:10; Weinstein WD, 61:5-74:2.

  2. Studies demonstrate that adolescents not only underestimate the harm that results from smoking cigarettes, but are overly optimistic about their ability to quit smoking. In one peer-reviewed study of ten to eighteen year olds, the subjects were asked to estimate the probability of four smoking-related conditions, including heart trouble, cancer, breathlessness, and carbon monoxide in the blood. They found that adolescents rated the hypothetical risk that they would experience if they became a regular smoker to be lower than the risk for another smoker, even though the two were said to have the same amount and duration of smoking. Weinstein WD, 64:7-16. See Hansen & Malotte, 1986 at 363.

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  1. In addition, teens tend to believe that they are at less risk to become addicted than other teens and that they can smoke without much chance of becoming addicted. Furthermore, they rate occasional cigarette use as less harmful than adults' rating. The 1995 Cohn study asked 376 teenagers about their risk of experiencing nineteen health problems and other negative life events, one of which was "get[ting] hooked on cigarettes." Overwhelmingly, the teenagers claimed that they were less likely than their peers to become addicted. Furthermore, when asked about their perceptions of the harmfulness of various risky activities, including cigarette smoking, the teenagers rated these activities as significantly less harmful than did their parents. Weinstein WD, 64:17- 65:15.

  2. Most smokers give no thought to how long they will smoke when they first begin, apparently believing that quitting is something that can be easily undertaken at a later date. By that "later date," addiction can make it extremely difficult to quit. In the 2001 Annenberg Study, a large national survey, 24% of youth smokers said they expected to smoke for less than a year, 10% said one to five years, and only 5% said they expected to smoke longer than five years. However, a much larger proportion, 61%, said they had never thought about it. Weinstein WD, 66:3-69:19.

  3. Moreover, the data shows that while adolescents believe that it is hard for other smokers to quit, they believe they will be able to quit more easily than others. In one study, 96% of the teen respondents believed that it is "hard," "very hard," or "almost impossible" for a half-pack-a- day smoker to quit, and 96% agreed that the longer you smoke the more difficult it is to quit. However, 43% of the teen smokers in the survey reported that they, personally, would find it easy to quit and never smoke again, and a mere 16% said it would be either "very hard" or "almost impossible" for them. Teenagers' reluctance to give up the reassuring illusion of easy quitting is demonstrated by the finding that, even among teens who had already made a serious quit attempt and failed, 32% still said it would be easy for them to quit. Weinstein WD, 66:3-69:19.

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  1. The 2000 Annenberg Study of 3,506 teen and adult smokers and nonsmokers nationwide asked smokers who said that they planned to try to quit in the next year, "If we called you again in a year, would you guess you would have successfully quit smoking?" A very high 83% of youths and 78% of adults said they expected to succeed in their quit attempt. The reality, however, is that only 28% of teenage quitters manage to quit smoking for a year, and only 7% of adult smokers who try to quit are able to remain cigarette free for a year. Weinstein WD, 66:3-69:19.

  2. In the 2001 Weinstein & Slovic Study, smokers who were planning to quit in the next year, and who had tried and failed in the past, were asked about their next quit attempt. From this group, 88% of youths and 64% of adults said that they would be nonsmokers a year later. Even among those who stated that quitting was very hard or almost impossible for others, 83% of youths and 57% of adults predicted their own success. Weinstein WD, 68:22-69:4.

  3. Finally, in the University of Michigan's Monitoring the Future survey, high school seniors were asked, "Do you think you will be smoking cigarettes 5 years from now?" These same seniors were contacted five years later. The results showed that both light smokers and heavy smokers overestimated the likelihood that they would have quit. Of seniors who smoked less than one cigarette per day, approximately 85% stated that they probably or definitely would not still be smoking after five years. When the same group was polled five years later, 58% were still smoking.

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Almost one third of seniors who smoked a pack a day thought that they, too, would quit within five years. Only 13% actually quit. Weinstein WD, 66:3-69:19.

  1. In sum, the research and expert testimony demonstrate that most youth, at a time when they are deciding whether to start smoking, have a very inadequate understanding of the medical consequences, physical pain, and emotional suffering which results from smoking and the unlikelihood of their being able to quit smoking at some future time. Weinstein WD, 66:3-69:19.