Reports that Matter

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

(IAPAG)

Section 86 of 129

(IAPAG)

  1. The Tobacco Institute was the hub of Defendants' domestic ETS consultancy program, which included a group set up by Covington & Burling and several U.S. consultants in

1985 called the Indoor Air Pollution Advisory Group (IAPAG). Schwartz WD, 7:6-21.

  1. IAPAG activities were billed through the Center for Environmental Health and

Human Toxicology (CEHHT), a consulting firm founded by consultants Sorell Schwartz and Philip

Witorsch in late 1982 to enable the professors to perform consulting work beyond the 20 percent time limit imposed by Schwartz's employer, Georgetown University. Schwartz WD, 2:25-3:9. Schwartz and Witorsch did their consulting work through CEHHT, and the Tobacco Institute covered CEHHT's basic operating costs. 2026335488-5492 at 5489 (US 26860).

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  1. IAPAG consultants traveled throughout the country testifying at public hearings of many kinds. IAPAG consultants also: "reviewed, evaluated and critiqued scientific literature updated the database, educated and prepared scientific witnesses at direction of the Tobacco Institute, coordinated their interaction with the EPA, prepared scientific papers, participated in meetings." Schwartz WD, 5:7-9; see also TIDN0007373-7378 (US 77020); 2023542584-2586 at 2584 (US 87329); TI07560820-0821 at 0820 (US 65475).

  2. The Tobacco Institute employed IAPAG to rebut evidence confirming the association between ETS and lung cancer. Tobacco Institute vice president Walter Woodson wrote an internal memo dated January 15, 1988:

I would like to know IAPAG's plans for dealing with new studies. For example, Balter mentioned three new cancer/ETS publications from late 1987, but it was unclear – to me, at least – what, if anything, they are doing to rebut new work in this and other ETS areas. Also, I'd like to know if IAPAG papers are underway for publication in peer-review journals. Such articles are a key reason for IAPAG existence, in my view.

TIOK0023599-3602 at 3600 (US 65701).

  1. The billing procedures and contacts between IAPAG consultants and the cigarette manufacturers obscured their close connection. As noted already, the billing for IAPAG's activities was done through CEHHT. See e.g., TI42550751-0754 (JD 54135). Rupp served as a buffer between Schwartz and the Tobacco Institute. Schwartz, through his consulting from CEHHT, billed Covington & Burling. Rupp kept the Tobacco Institute informed of IAPAG's activities. Checks to
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IAPAG and CEHHT came from Covington & Burling, even though the money originated from the Tobacco Institute. Schwartz WD, 8:1-25.

  1. The Tobacco Institute decided where to send the consultants to make statements. Schwartz WD, 3, 8; TI07560615-0619 at 0618 (US 65472).

  2. During the 1980s and 1990s, CEHHT billed the tobacco industry millions of dollars for their services. The Tobacco Institute often spent tens of thousands per month on CEHHT fees. In 1986 alone, Schwartz's consulting firm received $1,032,000 from the Tobacco Institute. TI07560820-0821 at 0820 (US 65475); 87824794-4797 (US 32070); 87824798-4801 (US 32071); TI42550751-0754 (JD 54135); TI42550732-0740 (JD 54140); TI43990461-0455 (JD 54155); TI44110204-0205 (JD 54157); TI44110160-0162 (JD 54167); TI43370130-0132 (JD 54170); TI43370125-0127 (JD 54173); TIMN431124-1124 (US 62974); TI10160667 (US 65485).

  3. Schwartz's public appearances and the public relations aspect of his alliance with Defendants was discontinued in 1988 after he became uncomfortable providing the "unabashed advocacy" urged by the industry. Schwartz also became uncomfortable with the public testimony which the Tobacco Institute required of IAPAG. Schwartz WD, 12:22-26, 14:27-16:17. TI07560744-0746 at 0744 (US 62246); TI07560611-0614 at 0611, 0613 (US 65471); TI07562260- 2261 (US 62247).

(d) The Appearance of "Independence" 3635. Through their recruiting and training of consultants around the world, Defendants

created a cadre of seemingly independent consultants to support the industry's position on secondhand smoke and to create the impression that a legitimate controversy existed among independent scientists. The global effort to create and manage this program required intense coordination among the companies and their counsel.

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  1. The need for seemingly independent consultants emanated in part from an internal recognition that the industry had little credibility with the public and among regulatory bodies. As stated in a July 24,1991 to 1995. This program studied the correlation between lifestyle and environmental exposures and major chronic illnesses, and the role of diet in cancers of the lung, oral cavity and bladder. 2046988683-8683 (US 85673); 2021630974-0975 (US 87371); 2046988682-8682 (US 85674). -1358- BATCo summary of the program:

It has been apparent to the industry for some time that we do not have sufficient credibility to put forward a position on ETS (or any other issue for that matter) unless we can identify independent scientists who are saying the same thing. If independent scientists back up our position, it becomes more credible, not only to the general public and the media, but to politicians and other decision-makers. . . . Although it is essential for the industry to speak up about its positions, there are some things that are better left to independent scientists to express.

300522762-2767 at 2762 (US 22223).

  1. On July 15, 1988, company representatives from Philip Morris, Reynolds, BATCo and others, along with Covington & Burling and Shook, Hardy & Bacon lawyers attended a "Joint Meeting on ETS" at which they discussed the continuing industry ETS strategy of generating "marketable science" to use for public relations purposes. As one company representative told the group, "In providing this [ETS] information, the industry must be inconspicuous. Otherwise, he argued, the public will suspect the authenticity of the information." He recommended the use of third parties to convey Defendants' message. 2021548222-8235 at 8234 (US 20349).

  2. Defendants sometimes used long-time consultants, such as George Leslie and Francis Roe, to carry out recruiting and training tasks, so as to put more distance between the consultants and the tobacco industry. Leslie and Roe also assisted Rupp in identifying and recruiting additional industry ETS consultants in both Europe and Asia. 2500048598-8600 (US 75372); 300541877-1877 (US 85568); 2501474253-4259 at 4256-4257 (US 22017).

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  1. As with CEHHT, the consultants would bill Covington & Burling for their work, then Covington & Burling would bill the companies, to avoid direct payments from the companies themselves. See, e.g., 2023856341 (US 23713); 2023856342 (US 23714); 2023856343 (US 23715); 2023856344 (US 23716); 2023856345 (US 23717); 2023856346 (US 23718); 2023856348-6349 (US 23719*).

  2. In a memorandum dated December 12, 1988 from Philip Morris's Stig Carlson to Covington & Burling attorney Charles Lister, Carlson listed some specific industry ETS initiatives in Scandinavia, emphasizing the need to use different "contact" points to "avoid the infamous 'fingerprints'" of the cigarette companies. 2501255446-5447 at 5446 (US 85562).

  1. In Boyse's (Blackie) July 1991 review and summary of the program, she wrote: It was agreed that the kind of program that had been going on in the Far East and was being developed in Latin America was ideal, because the scientists were of good quality, were largely prepared to enter a more public arena than scientists normally would, and the programme was handled in such a way thanks to Covington & Burling that there was no direct association between the scientists and the tobacco industry. . . . For this type of programme it is absolutely essential to ensure that administration of the programme and contact with consultants is made quite independently of the tobacco industry, and that no tobacco industry executives have contact with them.
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(e) Defendants' Use of Consultants

  1. Through the consultancy program, the tobacco industry was successful in reaching

"public, scientific and governmental audiences." 2500048956-8969 at 8967 (US 27901). In the words of B&W counsel Kendrick Wells: "The consultants groups' operation is essentially a public relations program, not a scientific operation." 401033325-3328 (US 24099).

  1. In a Philip Morris January 31, 1989 report titled "Boca Raton Action Plan," the company details its worldwide ETS initiatives, including placing consultants in scientific seminars, using consultants to resist aircraft smoking bans, using consultants to oppose restaurant smoking restrictions, the creation of Burson-Marsteller "News Bureau" programs in Europe for media distribution, and the coordination with other industry groups, such as INFOTAB and CORESTA.

2021595753-5910 (US 85541).

  1. In July 1989, after less than two years of participating in the program, Philip Morris vice president Andrew Whist reported to Philip Morris International president Geoffrey Bible (who later became CEO of Philip Morris Companies) that:

Several hundred specific activities or events have been completed. These have included numerous press briefings, repeated briefings of important government officials, the publication of a number of review articles on the science of ETS, several air quality monitoring studies, convening of a number of scientific conferences, submission of comments on smoking restriction proposals being considered in a number of countries, testimony before a variety of legislative bodies, preparation and submission of affidavits and offers of proof in cases involving claims concerning ETS, publication of a book ("Clearing the Air") that seeks to put ETS into proper perspective, drafting of two additional books on ETS and indoor air quality issues, and approximately 100 separate presentations at major international scientific meetings challenging the unwarranted health claims that have been made concerning ETS.

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  1. This July 1989 overview of the ETS Consultancy Program provides a snapshot of the size and complexity of the program. At that point, 70 scientists had been recruited in Europe, Asia, Australia, and Canada. This number included 49 scientists who were university-affiliated and 21 who were private. The consultants were sent to 36 scientific conferences in 1989, published some 43 papers, published three books in seven languages, delivered over 70 scientific and political briefings, gave over 1100 media interviews, and signed ten affidavits in an Australian AFCO lawsuit. According to the 1989 memorandum from Whist, this effort was managed by some 30 attorneys and cost approximately $3.5 million in consultant and legal fees in 1989. 2500048772-8781 (US 85527). This was before Defendants expanded the consultancy program into Latin America.

  2. Similarly, an October 1989 report from Covington & Burling provided Defendants a nine-page list of "conferences attended by consultants, recent publications, and ongoing projects" in Europe. 2500019903-9911 (US 25337).

  3. The Tobacco Institute played a pivotal role in retaining American and foreign consultants domestically:

Scientific Witness Team. TI now has 23 consulting scientists whose businesses are to market their scientific expertise. Their principal mission is to testify before state and local legislative bodies on ETS and indoor air quality issues. They also respond to adverse articles in scientific technical, and general audience publications by submitting letters to editors. They attend and report on meetings of scientific organizations. . . . Members of the scientific witness team have made 48 legislative appearances and conducted 30 media tours to date this year. . . . Foreign Scientists. This strategy is to bring a "foreign" perspective on ETS science to U.S. journalists through the use of the industry's overseas consulting scientists. Through editorial board briefings and

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interviews with science and health reporters, these scientists will suggest that the U.S. understanding of ETS science is skewed by anti-smoker media hype, and that the U.S. response to ETS science is out of step with the rest of the world. . . . Next year we anticipate foreign scientists conducting at least one media tour per month in connection with attendance at scientific meetings.

TIDN0004239-4248 at 4239-4240 (US 75287).

  1. The Tobacco Institute's consultants attempted to critique and undermine scientific studies that identified ETS as a health hazard. For example, in 1993 alone:
  • The Tobacco Institute paid consultant Gio Gori $3,555 to write a letter to the editor of the Journal of the National Cancer Institute ("JNCI") captioned: "Environmental Tobacco Smoke: The Price of Scientific Uncertainty." The letter appeared in the journal on January 6, 1993. The Tobacco Institute paid Gori another $4,137.50 to write an Op-Ed newspaper submission on the Environmental Protection Agency's Risk Assessment for the Wall Street Journal. TIMN0435220-5272 at 5225, 5226 (US 21734).
  • The Tobacco Institute paid Peter Lee $4,000 to write a response to letters to the editor of Environment International that appeared on January 29, 1993, disputing the conclusion that ETS exposure caused lung cancer and mortality. TIMN0435220-5272 at 5253 (US 21734).
  • On April 10, 1993, the Tobacco Institute paid Gio Gori $4,000 to write a letter to Lancet, disputing an editorial that had found the Environmental Protection Agency's Risk Assessment provided a firm regulatory basis for increased social action to minimize the public's exposure to ETS. TIMN0435220-5272 at 5231 (US 21734).
  • In June 1993, the Tobacco Institute paid Peter Lee $5,000 to write a letter to the editor of Journal of the National Cancer Institute disputing results of an ETS study by Stockwell that post-dated the EPA Risk Assessment and found a link between ETS exposure and lung cancer in nonsmoking women. The letter was published along with two other letters
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from Tobacco Institute consultants Paul Switzer and Max Layard. TIMN0435220-5272 at 5247 (US 21734).

None of the letters disclosed that tobacco industry money had funded them. TIMN0435220-5272 at 5247 (US 21734); 2046342683-2686 (US 20469).

(f) ARIA and IAI 3649. The tobacco industry used its consultants to create larger organizations as well.

Through these organizations, the industry's ETS consultants arranged conferences and published papers to get the industry's position on passive smoking into the scientific literature. 2500019903- 9911 (US 25337); 2500048956-8969 (US 27901).

  1. The industry's ETS consultants in the United Kingdom, along with Covington & Burling, formed a group called Association for Research on Indoor Air ("ARIA") in 1988. 2500048956-8969 at 8960 (US 27901); 300538942-8943 (US 85552). According to Chris Proctor's record of an October 25, 1988 meeting in London, Philip Morris and Covington & Burling, along with the three ARIA founding consultants Francis Roe, George Leslie, and Frank Lunau, presented the ARIA group to Reynolds, BATCo, and other British manufacturers. 400974548-4550 (US 47525).

  2. ARIA was presented as a "Philip Morris initiative" set up in order to create a "group of scientists in the UK that will comment on ETS issues." Roe emphasized the value of ARIA's perceived independence to the other manufacturers and the industry, although the consultants were aware of the funding source:

He stressed at length that the 16 individuals currently operating for ARIA were totally independent and that there was to be no formal contact between the individuals (not to be termed consultants) and the industry. . . .

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It was suggested that the position of Covington & Burling allows the members of each group to remain independent of the industry, though all know that it is tobacco money that is funding the exercise.

400974548-4550 at 4548-4549 (US 47525).

  1. In a memorandum dated October 10, 1988, B&W in-house counsel Kendrick Wells wrote Nick Cannar at BATCo that the industry also retained a public relations firm in London to generate material for distribution that was "intended to 'leverage' the statements" made by ARIA and its members. 401033325-3328 at 3325 (US 24099).

  2. The public relations firm was in fact the London office of Burson-Marsteller, who placed consultant statements in the European media. Burson-Marsteller, which coordinated their media activities with Philip Morris and Covington & Burling. 2500048951-8955 (US 85571); 2500048939-8941 (US 85572); 2500048926-8929 (US 85573); 2500048846-8847 (US 85574); 2500048931-8932 (US 85554).

  3. Covington & Burling organized, monitored, and funded the ARIA organization. 2500048956-8969 at 8960 (US 27901); 300538945-8954 (US 85549); 300541877-1877 (US 85568); 300538976-8979 (US 88778); 2501474253-4259 at 4256-4257 (US 22017); 2023856337-6349 (US 23712).

  4. In 1989, ARIA created an organization called Indoor Air International (IAI), a group to address scientific issues related to indoor air quality around the world. In a March 1, 1990, memorandum on the European Consultancy Program, John Rupp noted:

Our consultants have created the world's only learned scientific society addressing questions of indoor air quality. The society (Indoor Air International) is seeking memberships from all those interested in IAQ issues throughout the world. It will soon have its own periodic newsletter . . . its own scientific journal. . . . The

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society will sponsor meetings and conferences . . . and thus can serve as an independent and accepted source of ideas and research regarding IAQ to the public and the scientific community. . . . We are of course including Asian and American consultants in the society, so as to provide worldwide coverage on IAQ issues.

2500048956-8969 at 8960 (US 27901).

  1. IAI was founded at an ARIA meeting in October 1989 exclusively by Defendants' paid European ETS consultants, notably Francis Roe, Frank Lunau, George Leslie, and Max Weetman. Most of the key members of ARIA were close friends of Roe. Covington & Burling managed the creation of IAI, publicly presented it as an "international learned society," and drafted the organization's bylaws. 2021598978-8991 at 8981, 8986 (US 23604); 2028440936-0950 at 0940 (US 75243); 300538942-8943 at 8942 (US 85552). IAI was funded by Philip Morris and BATCo. All billing was processed through Covington & Burling to avoid any direct connection to the industry. 300538942-8943 (US 85552); 300511564-1568 (US 85553); 2500048951-8955 (US 85571); 2500048931-8932 (US 85554); 2500049060-9062 (US 85555); TI43370125-0127 at 0125 (JD 54173).

  2. Rupp stated in his February 14, 1990 Asia consultancy program update that IAI intended to begin publishing a journal the next year. Rupp reported that Asia industry consultants were preparing to write articles for the journal, and several consultants were serving on the journal's editorial board. 2500048976-8998 at 8987-8988 (US 23007).

  3. IAI's publications and newsletters omitted any connection to the tobacco industry or tobacco law firms. Instead, its publications stated that the organization was merely a "learned society" dedicated to "promoting indoor air quality." 2028467035-7042 (US 85559); 2028467029- 7034 (US 85560); 2023545366-5369 (US 23680); 325297289-7360 (US 85561).

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  1. On September 5, 1991, Anthony Andrade wrote Mary Pottorff to voice his concern that Philip Morris should avoid direct involvement with IAI consultants:

C&B should not recruit as consultants any scientists actively working for S&T. . . . There is a grave risk that IAI members may be compromised if they have a direct relationship with Philip Morris S&T. The best example would be Dr. Weetman. Dr. Weetman is obviously a critical leader in the C&B consultant program and IAI, and his potential usefulness could be jeopardized by his direct consulting relationship with PM S&T. Dr. Skrabanek is a second example.

2023856321-6328 at 6321-6322 (US 22037).

  1. IAI to some extent took over the law firm role of organizing and managing scientific conferences. According to a June 6, 1990 memorandum from Jim Newsom at Shook, Hardy &

Bacon to other Shook, Hardy attorneys, the firm had a May 1990 meeting with Philip Morris's Steve

Parrish to discuss ETS initiatives going forward. One topic was the industry's continuing use of IAI:

We also briefly discussed whether we should be organizing conferences. Don [Hoel] had been responsible for these projects in the past. The newly-formed organization, IAI (Indoor Air International), plans to hold one indoor air conference each year. We told Steve [Parrish] that we would be willing to organize conferences depending on his views on how many conferences are needed , etc.

2023239673- 9695 at 9690 (US 26781); see also 2028467016-7019 at 7018 (US 85558).

  1. Geoffrey Bible, Executive Vice President of Philip Morris International, was kept informed as to the progress and achievements of the ETS Consultancy Program, and specifically

ARIA and IAI. In 1991 Helmut Gaisch provided Bible an update:

ARIA, an informal group, and IAI, a registered association, have made quite some progress during the recent months. It should be stressed that most act independently and are seen to be independent of us. IAI, Indoor Air International, who deal with the broad topic of the indoor environment, have a newsletter and a learned journal

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published by the respected Swiss scientific publishing house Karger. IAI have conducted large and successful international meetings in Lisbon and Montreux. IAI will jointly sponsor meetings in the near future with universities, government agencies and independent societies in Paris, Pavia, Perogia, Budapest, Prague, Bangkok, Bratislava, Athens and Rotterdam. . . . IAI members have met with governmental ministers and officials in several countries. . . . In all, no other resource gives the industry any similar access to the scientific community, government and those who make decisions about IAQ issues and standards. The key to this success is that an institution of growing professional authority was created, an institution that has developed an identity of its own.

2023856111A-6112 at 6111A-6112 (US 23708*).

  1. In 1995, the IAI changed its name to the International Society of the Built

Environment ("ISBE") and the IAI journal's title was changed to "Indoor+Built Environment." The

ISBE is still in existence today, continues to publish its journal and hold conferences, and is still run by industry ETS consultants. TLT0500003-0006 at 0005 (US 65083); 2063651094-1096 (US

75250).

(g) The Industry's ETS Consultants Cited and/or Published Without Disclosure of Tobacco Industry Ties

  1. Defendants used the work of their seemingly independent consultants disputing the health risks attributable to ETS to gain public support for their position by rarely disclosing the depth of their involvement. For example, articles in the Hong Kong Standard and South China Morning

Post identified British ETS consultant and ARIA president George Leslie simply as the "head of

Associates for Research on Indoor Air UK," and identified Rupp only as "a senior US scientific adviser and member of the American Civil Liberties Union." 2501204903-4903 (US 85577);

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  1. There are many other examples of newspaper and journal articles where consultants were quoted without disclosure of tobacco industry funding. See, e.g., 2501205177-5179 at 5178 (US 85579); 2048551288-1289 at 1288 (US 85581); TOMN343061-3061 (US 85582); 86022880- 2880 (US 85583); 86022881-2881 (US 85584); 2505533679-3705 (US 22898); 2026127628-7634 (US 85564).

  2. In 1991, the book "Other People's Tobacco Smoke", a compilation of articles, all written by tobacco industry consultants, was published. The book was edited by A.K. Armitage, industry consultant and member of ARIA. However, the only mention of industry involvement was one half of a sentence by the editors at the end of a brief "Acknowledgments" paragraph thanking both their wives and Philip Morris International for their "cooperation and assistance." 2051809899- 10096 at 9908 (US 87373); 2501152077-2091 (US 25597); 2081369203-9220 (US 27796); 2023034933-4946 (US 87334); 2500019903-9911 (US 25337); 2023592986-2998 at 2991 (US 85548); TIDN0019217-9268, at 9236, 9238, 9239, 9244 (US 85597); TIDN0011870-1870 (85635); 2501474296-4301 at 4299-4300 (US 27955); 2023591657-1659 (US 23692*); 2023591835-1837 (US 23695); 2023591891-1894 (US 23696); 2023591915-1918 (US 23698); 2023591962-1965 (US 23699); 2023591985-1988 (US 23700).

  3. The Tobacco Institute also tried to create the illusion of independence in its press releases and other publications attacking research implicating ETS as a cause of disease. These press releases cited industry consultants and conferences without reference to their tobacco industry source, instead describing them as:

• "independent scientific teams" (referring to IT Corporation, a Special Account 4 recipient) 92756893-6894 at 6893 (US

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85585); 86002410-2413 (US 85716); 86002393-2396 (US

  • "an expert on substances in indoor air" (referring to David Weeks, a paid industry ETS consultant) 92756893-6894 at 6893 (US 85585); TITX0025965-5968 at 5968 (US 85522); TIDN0019217-9268 at 9232-9233 (US 85597).
  • "a prestigious panel of scientists at an international symposium" (referring to the industry's ETS consultants at the McGill Symposium) 87697659-7664 at 7660 (US 85586).
  • "a US lawyer specializing in antitrust and trade regulation law" (referring to John Rupp) 87780965-0967 at 0965 (US 85589).
  • "Maurice LeVois, Peter Lee, and Joseph Fleiss" (long-time paid industry consultants) who all provided an "objective review" 87697701-7772 at 7701-7702 (US 85587); TIDN0019217-9268 at 9220, 9226-9227 (US 85597).
  • "independent scientists" Flamm and LeVois (noting ties to Federal Government including FDA, CDC, VA, but failing to disclose ties to tobacco industry) 91806529-6529 (US 88597); 87698341-8342 (US 85588); TIDN0019217-9268 at 9220, 9226-9227 (US 85597).
  • "[a]n independent analysis of more than 300 major private and public buildings by ACVA Atlantic, Inc., an indoor air quality analysis firm, identified tobacco smoke as a major contributing factor to air quality complaints in only four percent–twelve buildings." TLT0961875-1888 at 1881 (US 85591).
  1. The articles, letters, and submissions of the industry consultants to regulatory bodies were sometimes reviewed and edited by lawyers prior to publication. TIMN0435220-5272 (US

21734); TI00581616-1629 (US 62969); Dawson WD, 114:15-116:4; 680707970-7973 at 7970 (US

92065); Parrish TT, 1/27/05, 11387:25-11393:1.

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  1. For example, written responses by industry ETS Consultant Peter Lee to James Repace and Judson Wells were revised by both Shook, Hardy & Bacon and Covington & Burling prior to submission to a journal. Similarly, Covington & Burling made revisions prior to submission to an article criticizing the EPA risk assessment by industry ETS consultants Flamm and Todhunter, and a letter to the editor by ETS Consultant Gio Gori criticizing an adverse study by Brownson. TIMN435220-5272 at 5222, 5223 (US 21734).

(h) ACVA/HBI 3669. In June 1985, on the recommendation of the ETSAG, Defendants recruited John

Graham "Gray" Robertson, owner of a small ventilation inspection firm called Air Conditioning and Ventilation Access ("ACVA") and later renamed Healthy Buildings International (HBI), to test air samples from homes in Boston and Florida. Robertson WD, 12:19-14:16; TLT0270555-0555 (US 85619); 504221588-1593 at 1591 (US 85620); 521028861-8861(US 52692*); TIDN0011695-1704 at 1695 (US 62594). Defendants funded the ACVA home testing as a CTR Special Project. Robertson WD, 15:7-11.

  1. Although not a scientist, Robertson, by January 1986, had become associated with the Indoor Air Pollution Advisory Group (IAPAG). Robertson WD, 18:13-20, 20:5-21:4 and 21:12- 22:13; Schwartz TT, 10/25/04, 3580:11-21. Over time, Robertson became one of the industry's most traveled ETS consultants.

  2. Defendants funded Robertson's ETS activities, including making statements at legislative and regulatory hearings on indoor smoking bans and initiating projects and studies that questioned the adverse health effects of secondhand smoke. TIDN0002692-2701 at 2695-2697 (US 85605); TIDN0007373-7378 (US 77020); TIDN0016039-6045 at 6041-6042 (US 75289); Robertson

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WD, 12:19-14:16 (1985 home study); 51:8-53:13 (New York City study); 36:10-37:7 (1987 Tokyo Conference); 38:2-40:12 and 103:3-19 (1988 Swiss study for Philip Morris); 41:6-14 (1988 London Conference); 41:15-42:12 (1989 Brussels Conference proceedings paper); 45:5-46:11, 46:13-16, 48:5-50:13 (1989 CIAR-funded 585 Building Study); 62:14-64:4 (1989 McGill "symposium"); 61:3- 9 (1989 Building Council on Indoor Air position paper); and 87:5-10 (1992 Athens Conference).

  1. Defendants identified "Robertson and his colleagues at HBI" as "our foremost resources in our indoor air quality strategy" and promoted him as a "building doctor" and an expert in "sick building syndrome." [A situation in which building occupants experience adverse health effects that appear to be linked to time spent in a building but are not linked to a specific cause.] TI01140124-0133 at 0128 (US 62100); TLT0880001- 0024 at 0004 (US 87336). Robertson's work sought to examine and improve indoor air quality particularly through improved ventilation. Downplaying ETS exposure, Robertson took the position that banning indoor smoking was unnecessary to improve indoor air quality and that the "sick building syndrome" was the real problem. TI01262206-2209 (US 62105); TI12990109-0118 (JD 080482); Simmons WD, 5:3-10; TIOK0023878-3878 (US 77107); TIDN0002692-2701 at 2695-2696 (US 85605); 87780965-0967 (US 85589).

  2. Internally, Defendants questioned the rigor of Robertson's testing methods and the quality of his data. In a confidential note to BATCo and B&W, Sharon Boyse (Blackie) summarized a meeting with Reynolds on January 29, 1988. Boyse wrote: "RJR pointed out that although the abilities of Gray Robertson . . .as a presenter are undeniable, this is not the case for his scientific abilities. They felt, in particular, that his methodology could not stand up to scientific scrutiny, and that some of his data was questionable." BWBU242341-2343 at 2343 (US 21136). Project coordinator Michael Michaelson at Covington and Burling made a similar observation of Robertson's methods in 1985: "In summary, the data generated by the ACVA home study in Boston are deeply flawed and not subject to meaningful interpretation." 80406377-6385 at 6385 (US 23476); 504933703-3707 at 3704 (US 24220).

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  1. Other comments disparaging HBI's methods were made by senior tobacco company scientists in 1991 in reviewing a proposal eventually rejected for CIAR funding. 87776361-6362 (US 56325); 87776358-6359 (US 56324).

  2. Nevertheless, by 1994 Robertson and other HBI spokesmen had made over 125 legislative appearances and given over 700 media interviews. TLT0600106-0120 (US 65099); TLT0860022-0022 (US 87367); TLT0860023-0023 (US 87368); TIDN0010792-0792 (US 85637); TIDN0012371-2373 at 2372 (US 85638).

  3. Defendants maintained the perception of an arm's length relationship with Robertson and HBI. At a 1987 ETS Strategy Meeting held at Philip Morris International, Defendants warned that HBI must "be perceived to be at arm's length from the industry, including in media briefings. Its role at most should seem as yet another third party expert amongst others." 2046754737-4740 at 4739 (US 21646).

  4. By 1987, HBI was on monthly retainer to the Tobacco Institute and was paid various amounts at various times as well as its expenses. Robertson WD, 42:13-43:1, 26:14-16, and 30:14- 15; TIDN0004200-4235 at 4202 (US 77018); TIDN0020081-0085 at 0082 (US 85612); TIDN0023739-3740 at 3740 (US 85613); TIDN0008801-8801(US 85614); TIDN0025605-5612 at 5606 (US 85615); TI10160671-0671 (US 65486).

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  1. Through Robertson's work for Defendants, HBI went national, and eventually global. HBI grew from a small ventilation duct inspection outfit with an annual revenue of about $250,000 to a multi-national business with over $2.5 million in annual revenue; Robertson became an indoor air quality expert in forums around the world. Robertson TT, 10/21/04, 3332:4-3339:15, 3406:1- 3409:16; Robertson WD, 3:11-4:8, 5:1-6:3, 64:5-65:16, and 73:4-74:11; see also TLT0860122-0129 (US 87341); 2501026750-6761 at 6753 (US 85609); 2029370437-0437 (US 26896). In 1990, the Tobacco Institute paid for HBI to expand by opening regional offices in the United States and abroad. Robertson WD, 56:16-58:13, 64:5-65:16; TIDN0010085-0093 (US 85617*).

  2. Philip Morris, through Covington & Burling, reimbursed costs incurred by HBI. Expenses included hundreds of thousands of dollars associated with Healthy Buildings International Magazine. 2063935035-5035 (US 39877); Robertson WD 66:15-72:12; 2023590035-0036 (US 85621); TIDN0010768-0769 (US 85622); TIDN0011756 (US 85623); 2029370155-0160 (US 87343); 2029370138-0139 (US 87355); 2503001929 (US 85611); TIDN0021382-1383 at 1382 (US 85626); 2043709159A-9159A (US 46241); 2029370153-0161 (US 87356); 2029372111-2112 (US 87357); 2503001929-1929 (US 87359). The full color, bi-monthly magazine presented Defendants' views to a wide range of recipients around the globe. TLT0860028-0039 (US 87344). At least seven issues of "Healthy Buildings" were published between 1990 and 1991. See, e.g., TLT0850001-0008 (US 87346); TLT0850073-0084 (US 87352).

(7) ETS Symposia 3680. Defendants sponsored and planned various ETS symposia or conferences throughout

the world to generate data which supported the industry's ETS position. These conferences included a 1974 Bermuda conference, a 1983 Geneva workshop, a 1984 Vienna conference, a 1987 Tokyo conference, the 1989 McGill "symposium," and others. The presentations made at these conferences were thereafter publicized in the United States by Defendants as examples of independent scientific statements in support of the industry's position that ETS was not a proven health hazard. In a June 28, 1998 memorandum from Hoel to Philip Morris's Todd Sollis describing Shook, Hardy & Bacon's ETS efforts for the industry, Hoel bragged:

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Since 1974, SHB has been actively engaged in the organization and development of ETS conferences and symposia. . . . Once the proceedings from these conferences are published, they provide information that is useful in dealing with the attacks of anti-smoking activities.

2015007199-7207 at 7206 (US 20311).

(a) The 1974 Bermuda (Rylander) "Workshop" 3681. Long-time industry consultant, Swedish professor Ragnar Rylander proposed to Philip

Morris in July 1973 a "workshop" on the effects of passive smoking on nonsmokers. 1000259865-9865 (US 85708); 1000259799-9803 (US 85709).

  1. The purpose of the workshop was to generate findings favorable to the industry's position opposing smoking restrictions. Philip Morris's Helmut Wakeham strongly recommended industry financing of the workshop to counteract smoking legislation. 1000053116-3116 (US 85707). In a February 26, 1974 letter to Imperial Tobacco, Wakeham summarized the workshop as follows:

We are looking forward to the report of this workshop. We hope it will provide us with a document we can use to quiet some of the hysteria on the subject. Our main concern is the legislation restricting smokers now being passed in some of the local governments in the U.S.A. A copy of the workshop outline is enclosed for your information.

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  1. The workshop was held in Bermuda on March 27-29, 1974. Its proceedings were published as a book. The only attribution to Defendants was in the preface: "The Workshop was supported by Geneva University through a grant from "Fabriques de Tabac Reunies." The proceedings did not disclose that FTR was and is the Philip Morris subsidiary in Neuchatel, Switzerland. 690019211-9302 at 9216 (US 88462).

  2. In addition to funding the workshop through FTR, Helmut Wakeham of Philip Morris and Don Hoel of Shook, Hardy & Bacon helped Rylander plan the workshop, choose the participants, and publish the results. 2015035615-5615 (US 85710); 2015035611-5611 (US 89406); 1000259703-9703 (US 85713); 1000260272-0272 (US 85714); 1000259790-9790 (US 87036). 1000259784-9784 (US 85717); 2015035615-5615 (US 85710).

  3. Later, Rylander submitted drafts of the workshop proceedings to Philip Morris and Shook, Hardy & Bacon for review and comment before submitting them for publication in the Scandinavian Journal of Respiratory Disease. 1000259693-9693 (US 86613); 1000259703-9703 (US 85713); 1000260272-0272 (US 85714); 1000260253-0253 (US 89407).

  4. The 1974 Bermuda papers were incorporated into a broad industry "Position Paper" on passive/public smoking distributed to Defendants as part of the operations of ICOSI, the international tobacco industry group. ICOSI distributed this "Position Paper" in order to coordinate the responses of the manufacturers on a number of smoking and health issues. With respect to passive smoking, the position paper stated:

In 1974, a workshop (organized by, among others, Dr. Rylander of the Universities of Geneva and Gothenburg) was attended by scientists from all over the world to consider the health consequences of

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atmospheric tobacco smoke. These scientists were unable to conclude that cigarette smoking is a hazard to non-smokers.

513886735-6773 at 6737-6738 (US 87377); 500876807-6812 (US 87378).

  1. The 1974 conference was the beginning of a 25-year financial relationship between Rylander and all cigarette company Defendants. He was first funded through the industry's Special Account 4 from 1975 to 1989. 1005122219-2222 (US 20214); 507875857-5859 (US 20795); 507876993-6994 (US 20799); 86002454-2457 (US 85776); 86002410-2413 (US 85716); 86002393-2396 (US 86359); ATX140000938-0939 (US 21122). His relationship with Defendants continued as a consultant to Philip Morris and as a CIAR Applied Projects researcher through 1999. 2063590583-0586 (US 85704); 2505442777-2960, 2905-2907 (US 25643*).

(b) The Geneva (Rylander) Conference 3688. In 1981, the Tobacco Institute Executive Committee, the Committee of Counsel, and

Shook, Hardy & Bacon, enlisted Rylander to assess the utility of another conference. 03554255-4255 (US 85641). An August 1981 memorandum from Don Hoel recorded his meeting with Rylander at Shook, Hardy & Bacon. In this memorandum, Rylander acknowledged that neither he nor a conference could give ETS a "clean bill of health"; however, he did believe that "he could bring a healthy skepticism" to the conference and to claims against ETS. Hoel and other Shook, Hardy attorneys reviewed Rylander's proposed list of invitees. 680542957-2962 at 2958 (US 85718). The Committee of Counsel approved the symposium in April 1982 and reported that approval to the Executive Committee. 01330467-0467 (US 26460); 01330468-0469 (US 85719).

1380

  1. Rylander provided his overview paper, used to introduce the conference, as well as the discussion papers presented at the conference, to Defendants for review and input prior to their use at the conference. 680542957-2962 at 2958 (US 85718).

  2. The conference was estimated to cost the industry between $65,000 and $80,000. 502122726-2727 (US 29551). A later memorandum from Brown & Williamson in-house counsel J. Kendrick Wells put the cost to Defendants at $70,000. 401033325-3328 at 3327 (US 24099).

  3. Rylander invited a number of other Special Account 4 and CTR Special Project recipients; several gave presentations at the symposium on work they had performed on behalf of the tobacco industry. These participants included Domingo Aviado, Anthony Cosentino, Melvin First, Roger Jenkins, and Theodor Sterling. None of their financial relationships with the industry were disclosed in the published proceedings of the Geneva conference. 301153900-4051 (US 85645).

  4. For example, Melvin First was paid via Special Account 4 for work that he performed in early 1983 under the title "Methods for Environmental Tobacco Smoke Measurement," the subject of First's presentation at the Geneva conference. 1005125153-5154 (US 36085); 03746173-6182 at 6179 (US 46500). Theodor Sterling received hundreds of thousands of dollars in CTR Special Project funds in 1982 and 1983 for work related to his Geneva conference topic. 03746173-6182 (US 46500). In addition, Sterling's financial ties to Defendants via CTR Special Project funding began in the early 1970s and continued into the 1990s. 2024699783-9808 (US 85647); 92613920-4198 (US 32132); 2015006938-6940 (US 85764). Domingo Aviado was also a long-time recipient of industry Special Project and Special Account funds at the time of the Geneva Conference. 92613920-4198 at 4107 (US 32132); 03638980-8982 (US 85649); 2015029462-9463

1381

682069960-9961 (US 85659); 682069953-9954 (US 85660); 682069938-9940 (US 85661); 507875841-5843 (US 85662); 507875857-5859 (US 20795); 507876993-6994 (US 20799); 507875832-5834 (US 20794); 507876986-6987 (US 20798); 507875698-5700 (US 22953); 86002454-2457 (US 85776).

  1. The conference, organized by Rylander and Hoel, was held in Geneva in March 1983. The conference proceedings were then published in a book, titled "ETS-Environmental Tobacco Smoke, Report from a Workshop on Effects and Exposure Levels." The preface did include a statement that the conference "was supported by a grant from the Tobacco Institute, Washington, D.C., to the University of Geneva." 301153900-4051 at 3905 (US 85645). Rylander's extensive connection to the industry and the involvement of Shook, Hardy & Bacon in planning the conference were not disclosed in either the conference proceedings or any of the industry statements citing the conference's "conclusions." 301153900-4051 (US 85645); 2025364951-5007 (US 22173); 500642763-2772 (US 85644).

  2. Rylander's workshop summary, printed in a section titled "Workshop Perspectives," at the close of the published conference proceedings, stated that (1) the evidence linking ETS to any disease was "not considered conclusive"; (2) no passive smoking conclusions could be drawn from the data linking active smoking to disease; (3) the evidence of passive smoking causing effects on children was "contradictory"; (4) carbon monoxide was "not important from a health point of view"; and (5) the only proven effects of ETS were "irritation and annoyance." 301153900-4051 at

1382

  1. The Tobacco Institute sent a report of the Geneva symposia conclusions to the U.S. Health and Human Services Secretary and Assistant Secretary, and to the Surgeon General. The Tobacco Institute circulated a press release about the conference to medical and health publications, medical schools, members of Congress, newspapers, journalists and state health officials. TI12882975-2977 (US 62400).

  2. Rylander submitted comments to EPA in 1990 on the draft Risk Assessment stating: "I am sorry to see our own workshops from 1974 [Bermuda] and 1984 [Geneva] are not cited, particularly as the former was the first to apply the terms environmental tobacco smoke (ETS)." 2026127784-7790 (US 92064).

  3. Defendants went on to cite the conference as seemingly independent authority in advertisements, brochures, news releases, and submissions to Congress, OSHA, and EPA in support of their opposition to smoking restrictions. None of these materials informed readers that the conference was funded by the industry or planned by an industry consultant (Rylander) and lawyer (Hoel). 520911538-1542 (US 85593); 500642763-2772 (US 85644); 2025364951-5007 (US 22173); TINY0020573-0577 at 0575-0576 (US 88600); TIFL0055129-5139 at 5131-5132 (US 88601); TIMN0120782-0785 at 0784-0785 (US 88602); 517001328-1330 (US 88603); 2070140494-0630 at 0595-0596 (US 88604).

  4. In May 1984, the Tobacco Institute published "Environmental Tobacco Smoke Workshops 1983 - 1984" claiming: "Three times since March 1983, participating researchers and other medical experts have declared, forthrightly and independently, that no conclusion can be drawn about whether ETS has any chronic health effects on the nonsmoker. . . . Another physician-researcher organized an ETS workshop in Geneva in March 1983 as follow-up to a similar conference in 1974. He concluded afterward that "irritation and annoyance must still be considered to be the most prevalent effects ascertained from exposure to ETS.'" 500642763-2779 at 2765-2766 (US 85644).

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(c) The Vienna Conference 3699. Defendants organized an invitation-only symposium addressing passive smoking and

health in Vienna, Austria, from April 9-12, 1984. 04211608-1610 (US 22131*).

  1. A September 17, 1981 Reynolds "SECRET" memorandum from Associate Scientific Director Frank Colby to in-house counsel Samuel Witt, with copies to Don Hoel and others, detailed the industry's plans to hold a conference/workshop on passive smoking. The conference would be planned by Hoel and Colby, and would be chaired by Professors Helmut Valentin (a former Special Account #4 recipient) and Ernst Wynder, another recipient of extensive industry funding, with the "thrust and intent" to convince German and American scientists "that there is no real controversy, and that the facts on the [passive smoking] problem are all on our side." 500534168-4169 (US 89428). 1005045370-5383 (US 85777) and 1005122262-2265 (US 20218).

  2. The Vienna Conference was funded by the German Verband, the German cigarette manufacturer association with representatives of Philip Morris, BATCo, and Reynolds. According to a December 1, 1983 internal memorandum from Philip Morris (FTR) scientist Walter Fink to Tom Osdene at Philip Morris recording the minutes of a November 1983 Verband meeting, "DM 150,000 were approved for the Meeting on Passive Smoking to be held in Vienna in April 1984." 2028524616-4618 at 4618 (US 89162).

  3. The primary conclusion of the conference was that there was no link between passive smoking and any disease. Dr. Hirayama was invited to attend the conference. The conference concluded that, "[w]ith the exception of Dr. Hirayama, all the participants agreed that so far there was no definite proof of a causal relationship between passive smoking and the risk of lung cancer." TI12871546-1582 (US 87370). Following the conference, Wynder and Valentin issued a press release stating: "Should lawmakers wish to take legislative measures with regard to passive smoking, they will, for the present, not be able to base their efforts on a demonstrated health hazard from passive smoking." The press release omitted any information about funding of the conference by Defendants or the Verband. 04211608-1610 (US 22131*); 2024967092-7093 (US 87372). The translated press release was circulated by Don Hoel to the Committee of Counsel for Defendants' use and information. 2024967085-7085 (US 89431).

1384

  1. Defendants publicized the conclusions of the Vienna Conference. A May 1984 Tobacco Institute publication, titled "Environmental Tobacco Smoke Workshops 1983 - 1984," claimed that the Vienna conference's conclusion that "a health hazard from ETS has not been demonstrated" was reached "forthrightly and independently." 500642763-2779 at 2765-2766 (US 85644). The conference was also cited at length by Defendants in the 1986 Tobacco Institute booklet, titled "Tobacco Smoke and the Nonsmoker: Scientific Integrity at Crossroads," in which the Tobacco Institute claimed that Hirayama "stood alone" in his finding that passive smoking was linked to lung cancer. 2025364951-5007 at 4957-4958, 4961 (US 22173).

  2. In 1986, the Vienna conference was turned into published proceedings (Medical Perspectives on Passive Smoking) containing a summary preface and the presentations made by the industry-selected scientists. While the conference was limited to a selected group of scientists, the preface stated that the conference proceedings "provide the interested reader with an overview of the present status of the scientific discussion of passive smoking." TI12871546-1582 (US 87370).

1385

  1. In 1987, the Tobacco Institute published a booklet, titled "Smoking Restrictions: The Hidden Threat to Public Health," in which it declared that ETS had not been shown to be a health hazard to nonsmokers and that more research was needed. The booklet quoted statements made by organizers of the 1983 Geneva and the 1984 Vienna conferences, with no disclosure that the conferences were funded and organized by the tobacco industry. TI05540699-0705 at 0702 (US 21246).

  2. Defendants made similar claims in other public statements and submissions made to the public and regulatory and legislative bodies. TINY0020573-0577 (US 88600); 300551794-1823 at 1799 (US 88608); 93766027-6051 at 6029 (US 85675*).

  3. Defendants not only omitted mentioning any connection to the tobacco industry in their use of the Vienna conference in public statements, but also affirmatively misrepresented that the conference was sponsored by or held "in cooperation with" the World Health Organization. See e.g., 500642763-2779 at 2767 (US 85644); 04211608-1610 at 1608 (US 22131*). The misrepresentation was stopped only after the WHO protested in writing that it "ha[d] not granted the workshop any kind of sponsorship or support." TI00681815-1818 (US 62083); TI00681800-1803 (US 88606).

  4. Don Hoel and John Rupp denied that the industry had sponsored the Vienna Conference to the industry's own ETS consultants Sorell Schwartz and Nancy Balter when they expressed concern about having relied on its conclusions as a "neutral source":

At some point later, Nancy and I were sitting in Rupp's office and she brought [the Vienna conference] up again, emphasizing the importance of the question, our having relied on the conference proceedings as a neutral source. Rupp picked up his phone, dialed Don Hoel, put him on speaker, and said to Hoel: I have Sorell and

1386

Nancy here with me and they want to know if the Vienna conference was surreptitiously sponsored by the tobacco industry. Hoel's response -- absolutely not. A year or two later, I attended a meeting in Europe on indoor air pollution. Mary Pottorff of Philip Morris was also there, and we were talking. I mentioned this Vienna story to her. She laughed and said to me, "You have got to be kidding, Don Hoel organized that symposium."

Schwartz WD, 19:29-38.

(d) The 1987 Tokyo Conference 3709. In 1987, Japan Tobacco Inc. (JTI) sponsored a conference in Tokyo to counter the 6th

World Conference on Smoking and Health, an annual event of the World Health Organization slated to be held in Japan in November 1987. The 1987 Tokyo Conference was planned and managed by Don Hoel and the Tobacco Institute ETS Advisory Group (ETSAG). Several ETSAG meeting agendas and summaries demonstrate Defendants' involvement in moving the Tokyo conference from a "project proposal" to a reality. 506330874-0879 (US 50834); 505491315-1320 (US 24227); TIBU30330-0331 (US 62566); 511252621-2626 (US 51554); 505491406-1410 at 1409 (US 75275).

  1. Defendants and JTI met several times in late 1986 and early 1987 to discuss the conference. 506330874-0879 (US 50834); 505491315-1320 (US 24227); 512252621-2626 (US 51554).

  2. A February 4, 1987 internal Philip Morris ETS "Action Items" update memorandum from Mary Pottorff to Bill Murray reported the following under the heading "PMI Action on ETS":

Tokyo University ETS Conference Don Hoel has informed us that this PMI requested conference will take place two weeks prior to 6th World Conference, pending confirmation from JTI.

1387

  1. Professor Hitoshi Kasuga chaired the conference. Kasuga was a Japanese scientist who was conducting research for JTI at the time the conference was planned. 508226799-6804 at 6801 (US 75279). Defendants supplied names of American industry ETS consultants who would attend. The consultants' fees, along with their travel, food, and lodging expenses, were paid by JTI and Defendants. TI0068-2069-2070 (US 62088).

  2. The ETS conference, titled "International Conference on Indoor Air Quality," was held in Tokyo on November 4-6, 1987. Many of Defendants' American and European ETS consultants were in attendance and many presented papers. These consultants included Theodor Sterling, Franz Adlkofer, Karl Ueberla, Linda Koo, Ragnar Rylander, Peter Lee, Roger Perry, Domingo Aviado, Sal DiNardi, Melvin First, James Kilpatrick, Michael Lebowitz, Nathan Mantel, Gray Robertson, Sorrell Schwartz, and Ernst Wynder. Neither the list of attendees nor the conference program disclosed that the conference was funded through JTI and planned by both JTI and Defendants. 321091730-1825 (US 22892 ).

  3. The Tokyo Conference proceedings were published in 1990 as a book titled Indoor Air Quality. Kasuga's preface emphasized the existing ETS "controversy," and stated that none of the preceding conferences and "symposia," including Rylander's Geneva and Vienna conferences, had "established a definite causal relationship between ETS and lung cancer." Papers written by ETS consultants Rylander, Lee, Perry, Adlkofer, Sterling, and others were published in Indoor Air Quality. The book published papers written by BATCo scientist Chris Proctor and Reynolds scientist Guy Oldaker, without any mention of their employers. Kasuga summarized the conference in an "Outline" section at the conclusion of the book, where he stated that any number of factors in the air may have adverse effects on health, and ETS is merely one among many that should be studied. TLT0990809-1076 at 0812-0813, 1073-1074 (US 87398).

1388

  1. None of the papers published in Indoor Air Quality, nor the book itself, disclosed that the conference was funded through JTI and planned by both JTI and Defendants. TLT0990809-1076 (US 87398).

  2. Defendants cited the Tokyo Conference and papers published in Indoor Air Quality as objective scientific authority in support of their position that passive smoking was not a proven health hazard to nonsmokers. TI11951245-1685 at 1374 (US 85699); 87654420-4485 at 4481, 4485 (US 87385); 2024706618-6698 at 6687 (US 87405).

  3. Ernst Wynder, founder of American Health Foundation ("AHF"), was one of the organizers of the 1984 Vienna conference and the primary speaker at the 1987 Tokyo conference. Wynder had a long history with Philip Morris that also was not publicly disclosed. This relationship began in approximately around 1969, at which time Wynder described himself as one of the "best friends the cigaret [sic] industry has." 1000321438-1438 (US 85666). Between 1976 and 1990, Philip Morris provided AHF with millions of dollars in research grants.34 2021630792-0794 at 0793

85671); 2021594926-4930 at 4929 (US 85672*).

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(e) The 1989 McGill "Symposium"

  1. Defendants planned a symposium at McGill University in Montreal for November

  3. In an August 8, 1989 "Strictly Confidential" memorandum from Philip Morris

International's Andrew Whist to Philip Morris Companies' Vice Chairman Bill Murray, with copies to Geoffrey Bible and others, Whist wrote:

This memorandum summarizes our earlier conversation concerning the ETS symposium at McGill University.

What we have been planning over the past several days is a major international symposium which would be both closed and private until the release, shortly after the symposium, of a monograph summarizing the proceedings. Our goal, of course, is to produce an impressive document that would have the potential of neutralizing two reports that are scheduled to be released near the end of this year -- an ETS risk assessment that is being prepared by EPA and a detailed assessment of ETS health effects under preparation, at Rockefeller University, supervised by Professor Spitzer (an avowed anti-smoker). The EPA and Spitzer reports would cause substantial damage unless they are somehow countered.

2023034633-4637 (US 22932).

  1. Long-time industry ETS consultant, Donald Ecobichon at McGill, hosted the symposium, which was held November 3-4, 1989. Philip Morris chose the attendees and also edited and transcribed the panel discussions for inclusion in the monograph which was to be published immediately following the symposium. Numerous Covington & Burling attorneys participated in the planning and organization of the symposium on behalf of the industry. Philip Morris, Reynolds, and the Tobacco Institute share the costs of the symposium evenly. 2023034633-4637 (US 22932).
1390

  1. A September 19, 1989 report of the industry "ETS Coordinating Committee," written by Reynolds attorney Mary Ward, recorded Rupp's McGill presentation to the committee. Rupp told the group that the published "monograph" (Ward refers to this as a "big, fat book") could be used by the companies to oppose the EPA's risk assessment. 515541696-1701 at 1700 (US 30103).

  2. A September 27, 1989 "Status Report" from Covington & Burling attorney John Rupp clearly states that the purpose of the McGill event was to neutralize two ETS reports that were expected to indict passive smoking as a cause of disease:

ETS Symposium at McGill University

On November 3 and 4, 1989, approximately 60 of our consultant scientists from the United States, Canada, Asia, and Western Europe will convene for a private symposium devoted to ETS and risk assessment. The purpose of the symposium is to produce an authoritative monograph that will serve to neutralize two reports that are scheduled to be released near the end of this year - an ETS risk assessment that is being prepared by the U.S. Environmental Protection Agency and a detailed assessment of ETS health effects that is being prepared in Canada under Professor Spitzer's supervision.

2500048508-8515 (US 20549).

  1. The symposium included 80 industry ETS consultants. 2500048976-8998 at 8984

(US 23007). Chris Collett, an employee of industry consultant Theodor Sterling and an attendee at the "symposium," wrote in an internal review of the conference that:

Other comments I overheard concerned the absence of criticism or disagreement between the attendees. The presentations and panel discussions were sessions of "preaching to the converted."

1391

  1. Covington & Burling sent the Tobacco Institute an itemized statement of McGill symposium expenses under cover letter dated January 19, 1990. The expense statement includes a listing of many of the attendees, all industry ETS consultants, as well as industry-financed groups such as ARIA and HBI. The expenses and fees listed on this one statement for the production of the McGill symposium totaled over $800,000. TIDN 0021302-1305 (US 22731).

  2. In January 1990, the McGill proceedings were published by Lexington Books, along with a press release, and press kits for distribution by the Tobacco Institute with the assistance of public relations firms Ogilvy & Meyer and Burson Marsteller. 2023546229-6233 (JD 080524).

  3. The published McGill proceedings did not disclose the sponsorship by Defendants beyond citing a generic "tobacco industry grant." TLT0150001-0390 (US 65706). The sole reference to the tobacco industry was contained in the preface, which stated that the "symposium . . . was made possible by a tobacco industry grant and by grants and other support from the following co-sponsors." TLT0150001-0390 (US 65706). The preface listed 11 independent-appearing "co-sponsors." 2501474253-4259 (US 22017). Several of the "co-sponsors" were merely the institutions where a number of attending industry ETS consultants worked; others had preexisting links to Defendants. TIDN0019217-9268 at 9219, 9234 (US 85597) (Ecobichon/McGill University and Healthy Buildings International); 2501474253-4259 at 4255 (US 22017) (Institut Fresenius); 2500048643-8654 (US 22857) (Kim/Hanyang University); TIDN 0002692-2701 at 2695 (US 85605) and TIMN0435220-5272 at 5264 (US 21734) (National Energy Management Institute); 87697701-7772 (US 85587) (National Federation of Independent Business); 2023592986-2998 at 2993 (US 85548) (Allen/RCC Research and Consulting); 2023856321-6328 at 6322 (US 22037) (Weetman/Sunderland Polytechnic).

1392
  1. The McGill proceedings did not disclose that:
  • The symposium chairs (Ecobichon and Wu) were industry ETS consultants TIDN0019217-9268 at 9219, 9234 (US 85597).
  • The conference participants were all industry ETS consultants who had been selected by the industry and Covington & Burling. 2500048976-8998 at 8984 (US 23007).
  • Several of the "co-sponsors" did not sponsor the event at all. Rather, the Covington & Burling list of expenses shows that McGill University, HBI and the Institute for International Health and Development were actually paid by Defendants. TIDN 0021302-1305 (US 22731).
  1. The Tobacco Institute sent out McGill symposium proceedings and materials to over

200 science and health writers. TI13341775-1775 (US 62415).

  1. Defendants cited the McGill symposium in press releases, legislative submissions, and letters to the editor in major newspapers, without disclosing their sponsorship of the symposium:
  • Defendants coordinated nationwide "media activity" drawing attention to the McGill conference through the Tobacco Institute's Public Affairs Division, but using ETS consultant interviews arranged by industry public relations firm Ogilvy & Mather. TIOK0017415-7416 (US 85698).
  • The October 1, 1990 "Comments of The Tobacco Institute on Health Effects of Passive Smoking: Assessment of Lung Cancer in Adults and Respiratory Disorders in Children" repeatedly cited the McGill symposium, characterizing the event only as an "international symposium on ETS" that generated "the consensus views of 80 eminent scientists." 87653565-6820 at 3941- 3998 (at 3958) (US 88596).
  • In its March 20, 1992 "Comments" in response to the OSHA Request for Information, the Tobacco Institute cited the proceedings and several individual "papers" presented at McGill. TLT1022319-2405 at 2324-2328 (US 87404).
1393
  • The February 5, 1990 Tobacco Institute comments to the EPA on the draft Risk Assessment attached the McGill proceedings and described the event simply as a "a thorough, up-to-date discussion of the relevant literature" which concluded that "ETS has not been shown to present a health hazard to nonsmokers." TI11951245-1685 at 1254 (US 85699).
  • Philip Morris's September 28, 1990 "Comments" to the EPA on its draft Risk Assessment cited the McGill conference in a lengthy section summarizing industry-favorable conclusions of "scientific symposia." 2070140494-0630 at 0598 (US 88604).
  • A June 25, 1990 Tobacco Institute press release titled "Draft Risk Assessment Described as Speculation" identified the McGill conference as a "prestigious panel of scientists at an international symposium on ETS held at McGill University in Montreal, Canada." 87697659-7664 (US 85586).
  • Tobacco Institute consultant letters to the editor appeared in newspapers such as the Chicago Sun-Times, Detroit News, Las Vegas Sun, and Salt lake Tribune drawing attention to the McGill "conclusions." TI09911997-2033 (US 22367).
  • Letters to the editor published in the Chicago Sun-Times, Las Vegas Sun and the Salt Lake Tribune under the name of industry consultant Jack Peterson, and in the Richmond-Times Dispatch on August 26, 1990, under the name of industry consultant David Weeks are typical examples in which the McGill symposium conclusions were communicated to the public with no industry attribution. Dawson WD, 134:13-135:13; TI12201464-1465 (US 86722); TIMN343061-3061 (US 85582); TIDN0019217-9268 at 9229 (US 85597).
  • A Tobacco Institute press release dated June 10, 1992 titled "Majority Favors Smoking Sections in Most Public Places, Anti-smoking activists recycle old claims to add new pressure" relied on the McGill symposium findings. TIFL0523989-3992 (US 88456).
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  • ETS consultants distributed the McGill proceedings to government officials in markets around the world. 300522762-2767 at 2766 (US 22223).
  1. Defendants organized at least four other similar ETS conferences: London in 1988,

Brussels in 1989, Lisbon in 1990, and Athens in 1992. Robertson WD, 41:6-14 (1988 London Conference); 41:15-42:12 (1989 Brussels Conference); 87:5-10 (1992 Athens Conference); 2500048956-8969 at 8957 (US 27901) (1990 Lisbon Conference).

b. Defendants and Their Paid Consultants Controlled ETS Research Findings 3731. Several projects managed by Defendants as part of their worldwide ETS program

illustrate the degree to which Defendants closely supervised and, when necessary, altered the research on the question of ETS and disease. Four of these ETS projects -- the 1995 Japanese Spousal Study, the 1989 Malmfors/SAS paper, the 1992 HBI 585 Building Study, and the 2003 Enstrom/Kabat paper -- are described in detail below.

(1) The 1995 Japanese Spousal Study 3732. In April 1995, a paper titled "Marriage to a smoker may not be a valid marker of

exposure in studies relating environmental tobacco smoke to risk of lung cancer in Japanese nonsmoking women" was published in the International Archives of Occupational and Environmental Health under the name of industry consultant Peter (P.N.) Lee. 900006054-6061 (US 57902*) This paper, internally referred to by Defendants as "The Japanese Spousal Study" was funded and directed by Defendants through the International ETS Management Committee (IEMC) in order to challenge the association between lung cancer and spousal smoking reported in the Hirayama study. Blackie WD, 54:17-19; 2023522351-2352B (US 75127). As explained, infra, the study was not only closely managed by Defendants, but reached a conclusion that "high misclassification rates in Japan . . . undermine conclusions from epidemiological studies conducted there," which was of very dubious validity.

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  1. On April 5, 1991, Covington & Burling's Chris Proctor proposed to Defendants a study of misclassification (i.e., misreporting of the smoking status of participants) among Japanese women married to men who smoked. Charles Green at Reynolds sent the proposal to Bob Pages and Tom Osdene at Philip Morris with the message: "We need to get our international folks involved in the funding." 2023544450-4455 (US 22817).

  2. Proctor's proposal for what later became the Japanese Spousal Study was presented to the CIAR Board of Directors for funding. The proposal called for a payment of $45,000 to Covington & Burling for Proctor's "supervision . . . of all phases of the study, including the preparation of a publishable report." 87802262-2263 (US 56329); 2023544450-4455 (US 22817).

  3. According to an April 15,1991 to 1995. This program studied the correlation between lifestyle and environmental exposures and major chronic illnesses, and the role of diet in cancers of the lung, oral cavity and bladder. 2046988683-8683 (US 85673); 2021630974-0975 (US 87371); 2046988682-8682 (US 85674). -1358- Philip Morris e-mail from Bob Pages, a member of the CIAR Board of Directors, to Steve Parrish, Proctor's proposal called for two Japanese investigators to serve as co-authors, but that Proctor would be "a 'behind-the-scenes' study director." 2023544456-4456 (US 22816).

  1. Pages recommended the following to Parrish in his April 15,1991 to 1995. This program studied the correlation between lifestyle and environmental exposures and major chronic illnesses, and the role of diet in cancers of the lung, oral cavity and bladder. 2046988683-8683 (US 85673); 2021630974-0975 (US 87371); 2046988682-8682 (US 85674). -1358- e-mail: Three concerns: 1) This is NOT a project that should be funded by CIAR, although there MAY be (I'm not convinced yet) a reason to say it was sponsored by CIAR so as to "hide" industry involvement (as was done in Rupp's "Asia Project"). 2) Proctor (and his fee) may be necessary to help get this done -- at least he has the "hands on" experience with a similar study done in the UK -- but this should be a Japanese study: Proctor should not be a coauthor on any publication that comes out of it.
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  1. While the project was still under consideration by CIAR, the discussion among

Defendants was extended to include BATCo and the IEMC. BATCo's Sharon Boyse (Blackie) commented in a June 19,1991 to 1995. This program studied the correlation between lifestyle and environmental exposures and major chronic illnesses, and the role of diet in cancers of the lung, oral cavity and bladder. 2046988683-8683 (US 85673); 2021630974-0975 (US 87371); 2046988682-8682 (US 85674). -1358- memorandum to other members of the IEMC (including representatives of Philip Morris, Reynolds, and Brown & Williamson in the United States) that:

In the meantime, were we only to support one project we would support the Japanese one for the following reasons:

Independence. Although I accept many of the points made in [Rothmans'] Barry Frost's memo, the fact is that with Hazleton [laboratories], the tobacco industry is directly paying for the research, whereas the Japanese study could be channeled through an 'independent' organization such as CIAR. No matter how good the science, independence is always preferable, and in fact BAT made the decision to discontinue part of its in-house research on ETS for this very reason.

507974107-4109 (US 24730*).

  1. Ultimately the project was not funded through CIAR. Instead, with law firm supervision, IEMC funded the project. Boyse wrote her boss at BATCo Ray Thorton in a June 17,1991 to 1995. This program studied the correlation between lifestyle and environmental exposures and major chronic illnesses, and the role of diet in cancers of the lung, oral cavity and bladder. 2046988683-8683 (US 85673); 2021630974-0975 (US 87371); 2046988682-8682 (US 85674). -1358- memorandum titled "IEMC ETS Research Projects" that:

It was therefore decided by all companies to fund the project. The research will be carried out by two Japanese scientists who have been recruited by Covington and Burling as part of the Far East ETS project, and who are therefore in no way associated with the tobacco industry. The project will be monitored by Covington and Burling, with Chris having a direct involvement in assessing methodology and progress. Regular verbal progress reports will come from Chris.

Peter Lee will also be involved in advising on certain aspects of the project. However, neither Peter nor Chris will appear as co-authors.

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  1. All members of the IEMC participated in the funding of the Japanese Spousal Study at an original cost of $200,000 as follows: Philip Morris ($36,000), Brown & Williamson ($36,000), Reynolds ($36,000), BATCo ($36,000), Rothmans ($36,000), and Imperial ($20,000). 300512244- 2245 at 2245 (US 67752).

  2. The Japanese Spousal Study was carried out, as planned, under Proctor's direction. Pages provided Parrish an update of the progress in an e-mail dated November 8, 1991, which noted that, although the samples for the study were obtained in Japan, analyses of the samples would be conducted at Reynolds's lab in Winston-Salem. Pages wrote:

Spoke with Chris Proctor to get an update. Study seems to be moving along surprisingly quickly. . . . Frozen urine samples will eventually be sent to RJR for analysis. . . . Proctor expects to return to Japan shortly to check on the distribution of subjects . . . . He would like to be back in Tokyo to begin drafting a report by mid-December.

2023544508-4508 (US 22913).

  1. The testing of the samples for the Japanese Spousal Study was carried out at the Reynolds's lab. Ogden TT, 3/17/05, 15982:8-22; see also 508217791-7793 (US 92094).

  2. The Japanese Spousal Study ran into problems when the Japanese investigators recruited by Proctor refused to cooperate. According to a May 18, 1993 Philip Morris summary of an IEMC meeting, Proctor related the following as part of his presentation to the group: