Reports that Matter

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

Defendants Received Conflicting Messages From the Government and the Public Health Community About Their Efforts to Create and Market

Section 62 of 129

Defendants Received Conflicting Messages From the Government and the Public Health Community About Their Efforts to Create and Market

Less Hazardous Cigarettes

  1. Over the last few decades, Defendants have received inconsistent messages from the government and the public health community regarding their efforts to create and market less hazardous cigarettes. Beginning in the 1950s, public health authorities, including the Surgeon General, pushed the industry to develop lower tar/nicotine cigarettes and other nonconventional less hazardous cigarettes. In the 1960s, public health authorities, including the Surgeon General, began emphasizing the need for consumers who could not quit to compare brands, using the FTC uniform system for cigarette labeling, in order that they might choose which is the least harmful to their health. At the same time, the FTC prosecuted cigarette manufacturers for their low tar/less hazardous cigarette advertisements if they could not substantiate the health claims made.
689

  1. During the late 1940s and early 1950s, the FTC brought a series of cases alleging that the cigarette companies were engaging in unfair and deceptive advertising, involving what the FTC considered to be unsubstantiated health claims. Langenfeld WD, 37:15-23.

  2. Cigarette brands directly affected by the FTC formal actions during this period made up roughly 70 percent of all the cigarettes sold in the United States in 1954, and the companies subject to the various consent decrees or other compliance agreements with the FTC sold virtually all the cigarettes sold in the United States in 1954. Langenfeld WD, 37:24-39:6.

  3. The first such action occurred when the FTC brought proceedings against Brown & Williamson for Raleigh cigarette advertisements that stated "Right for taste and right for the throat!" beginning in 1947. Brown & Williamson ultimately agreed to cease making the claim. Langenfeld WD, 39:12-21.

  4. Beginning in 1950, the FTC also successfully challenged several health related claims made in R.J. Reynolds's advertisements of Camel cigarettes. (no bates) (JD 061525).

  5. In 1950, the FTC successfully challenged Lorillard's advertisements that Old Gold cigarettes were lowest in nicotine and throat-irritating tars and resins. Langenfeld WD, 42:5-43:11.

690

  1. During 1951 and 1952, the FTC brought challenges to advertisements for several Philip Morris cigarettes and American Tobacco Company's Lucky Strikes cigarettes. Langenfeld WD, 43:16-47:2. The FTC found that Philip Morris's ads had made several unsubstantiated health claims. After Philip Morris assured the FTC that it had abandoned the ads, the complaint was dismissed. The FTC also pursued challenges to Chesterfield advertisements run by Liggett. Langenfeld WD, 47:3-49:4.

  2. Despite the claim of Government expert Dr. Harris that the FTC had "toothless involvement," (Harris TT, 10/14/04, 2548:4-6) the Court finds that these successful FTC legal challenges undoubtedly discouraged Defendants from continuing to advertise the health benefits of their cigarettes.

  3. There was also public criticism during this time of the substance of Defendants' health claims. For example, a December 21, 1953, article in Advertising Age, titled "Cigaret Makers Urged to Purge Medical Claim," stated:

Cigaret advertisers were urged today by the National Better Business Bureaus to adopt an eight-point code to eliminate unfounded health claims in cigaret advertising. Kenneth B. Wilson, NBBB President said . . . the code should be adopted . . . because of growing evidence that the general public bitterly resents the use of deceptive "health" claims in cigaret advertising and because public resentment of objectionable cigaret advertising impairs public confidence in all advertising.

(no bates) (JD 043377).

  1. Still, some health claims continued. For example, an April 19, 1954, issue of Newsweek magazine contains an advertisement in which Lorillard compares its Kent Micronite filter to cellulose and cotton filters, asserting that its filter is best: "If you need the protection of a filter cigarette . . . get KENT, the cigarette that takes out far more nicotine and tars than any other filter cigarette, old or new." The same edition of Newsweek contains an advertisement for Viceroy cigarettes, touting its Estron filter and proclaiming that Viceroy gives you "double filtering action." (no bates ) (JD 011827).
691

  1. Likewise, the Kent "Voice of Wisdom" Campaign, which continued into 1955, also contained health claims. See generally, Harris TT, 10/18/04, 2727-2739.

  2. Notwithstanding the successful FTC challenges in the early 1950s, Defendants did continue to make health claims. As a result, the FTC issued a letter in 1954 to all tobacco companies announcing its intention to adopt uniform standards for cigarette advertising "to prevent the use of false or misleading claims." (no bates) (JD 000332 at 276).

  3. In 1955, the FTC adopted the "Cigarette Advertising Guides," proscribing any implicit or explicit health claims in cigarette advertising. The Guides did, however, allow comparative ads claiming that a cigarette was "low in nicotine or tars" provided it has "been established by competent scientific proof applicable at the time of dissemination that the claim is true, and if true, that such difference or differences are significant." 50202 3956-3957 at 3957 (JD 003616 ); (JD 021949).

  4. Given this exception, and calls from the public health community to develop cigarettes with reduced tar yields, the American cigarette manufacturers responded by the mid to late 1950s with a heated "tar derby" of competing claims about the effectiveness of various filters: "[C]igarette companies advertised that certain brands were lower in 'tar' and nicotine and, by implication, less dangerous." (no bates) (JD 001032 at 1-49, n.174). See also (no bates) (JD 004344 at 8343). See Section V(E), infra.

692

  1. Faced with the "tar derby" and perceived consumer confusion, the FTC concluded that, "[i]n the absence of uniform testing procedures, it was impossible to make claims about 'tar' and nicotine levels that could be substantiated . . . ." (no bates) (JD 001032 at 1-49, n.174).

  2. Accordingly, on December 17, 1959, the FTC informed tobacco manufacturers that it would henceforth consider "all representations of low or reduced tar or nicotine, whether by filtration or otherwise . . . as health claims" that would be barred in advertising. 1005150070 (JD 004534). The FTC considered that simply listing tar and nicotine deliveries constituted an implied health claim that those cigarettes would be less harmful. Harris TT, 10/19/04, 2902:19- 2903:3. The FTC further "inform[ed] the industry that in its opinion the evidence then available would support a complaint against any marketer who made any reference to tar or nicotine content, charging that such a reference was false and misleading." 670310575-588 at 3 (JD 040931).

  3. A month later, the FTC requested that the cigarette manufacturers agree to stop all references to tar and nicotine in their advertising, and the manufacturers acceded. See, e.g., 1005150056-57 (JD 004535); 1005150051-52 (JD 003617).

  4. The FTC threatened to sue the tobacco companies if they did not comply with the ban on tar and nicotine advertising. 670310575-588 (JD 040931 at 3); 501016129 (JD 000706); 521058489 (JD 000543).

  5. In 1964, the FTC chose not to adopt certain cigarette advertising restrictions because the industry had adopted its own the provisions on health-related advertising in the 1964 Advertising Code. Langenfeld TT, 3/10/05, 15195:12-16; see also Langenfeld WD, 63:14-68:20.

  6. As detailed in Section V(E)(1)(b), infra, the FTC, in 1971, later reversed this policy, adopted its own standardized test method for determining tar and nicotine yields for cigarettes, and first permitted, then later required, that cigarette manufacturers advertise the tar and nicotine yields of their cigarettes. The new FTC policy was driven by two goals: (1) publishing standardized information so that consumers could meaningfully compare brands; and (2) creating an incentive for the tobacco companies to compete on FTC-measured tar yields, thereby bringing more low tar products to the market. See ¶2051, infra.

693
  1. In 1999, the FDA commissioned the Institute of Medicine to formulate standards by which "potential reduced-exposure products," or "PREPs" could be assessed. In 2001, an Institute of Medicine Committee published a report highlighting the significant gaps in knowledge about the mechanisms of smoking-related diseases and the resulting difficulties in evaluating reduced risk. 99053048-3558 (JE 032485). The Committee recognized that manufacturers must "have the necessary incentive to develop and market products that reduce exposure to tobacco toxicants." Id. at 99053068 (emphasis in original). The IOM stressed that "the confidence with which the adverse effects or harm reduction potential of PREPs can be extrapolated, especially at low doses, is uncertain." Id. at 99053071. Finally, the Committee concluded that "[t]here is no one panel or group of tests that the committee could recommend at this time that would, as a whole, serve to assure that morbidity and mortality would decrease with use of [cigarette design modifications]." Id. at 99053253.