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

Physiological Strength or Potency

Physiological Strength or Potency

454

This is the property of tobacco which makes your head swim, and makes you feel 'weak at the knees' after rapid smoking. It is a direct effect on the metabolism which does not come through the sense organs. It affects muscular co-ordination, pulse rate and peripheral circulation. . . . It is very difficult to assess S by these reactions because a subconscious mechanism usually controls the rate of smoking to keep these effects small. [Physiological Strength or Potency] is usually assessed by considering whether the cigarette was "satisfying." "The cigarette satisfied my need for a cigarette (even though it may have tasted horrible), I did not want to light another cigarette immediately afterwards."

650378968-9132 at 9036 (US 85303).

  1. Representatives of Philip Morris, RJR, B&W, BATCo, Lorillard, and Liggett attended and presented papers at the same October 1964 conference. 2012614167-4279 at 4176-4182 (US 85304).

  2. In August 1967, B&W commissioned a report on addiction titled "A Psychological Map of the Cigarette World." The stated purpose of the report was "to provide a resource of information regarding those consumer needs, habits, and attitudes which shape the current cigarette market" and to "serve as a platform for the development of responsive marketing and advertising strategies." B&W's recognition of the important link between the addictiveness of its products and the shaping of the cigarette market exhibits, as far back as the mid-1960s, an acute understanding of smoker guilt, anxiety, and inability to control what is clearly perceived to be harmful, unhealthy behavior. 680282619-2668 at 2620 (US 85305).

  3. This 1967 report commissioned by B&W summarized the responses of some 1,400 smokers and included the following commentary:

Most smokers see themselves as addicts. . . . Many fear they'd "fall apart" if they quit. . . . Interpretively, the typical smoker feels guilty

455

and anxious about smoking but impotent to control it. Psychologically, most smokers feel trapped. Speculatively, the decision to smoke is psychologically motivated. Once that decision is made, smoking frequency is physiologically determined, with the addiction becoming more severe as smokers grow older. People who smoke plain cigarettes are strongly addicted but deny anxiety about smoking. . . . [They] hate to run out of cigarettes. . . . [They] admit they'd be a nervous wreck if they ran out of cigarettes.

680282619-2668 at 2625, 2632, 2635 (US 85305) (emphasis in original).

  1. The 1967 report focused in part on smokers of B&W's Viceroy and Kool brands. With respect to the Viceroy market, the report found that "attractions to Viceroy are strong, but its appeals represent a threat to the addicted mass." With respect to Kool, the report concluded that "The Kool smoker feels he smokes too much -- but does not want to stop . . . is 'hooked' and more openly anxious than menthol smokers generally." 680282619-2668 at 2656, 2660 (US 85305).

  2. B&W has long known that nicotine is the most important component of cigarettes, that nicotine is the most important component of addiction, and that without nicotine, people would not smoke. For example, B&W's Director of Research and Development, I.W. Hughes, gave the following response, on March 13, 1970, to an article raising questions about a link between nicotine and coronary heart disease:

This section of the paper is of some interest in that (a) there is the lead to take pressure off nicotine. This is very important to us; we can cope with reducing carbon monoxide, however difficult, but reduction or deletion of nicotine could be death to us.

456
  1. A February 22, 1972 "Private and Confidential" report by B&W researcher J.E. Kennedy, distributed to executives, including General Counsel Yeaman, was titled "Beneficial Aspects of Smoking." Kennedy's paper reviewed a number of studies, including studies focusing on nicotine's effects on animal behavior. Kennedy described studies showing that monkeys developed a "strong preference for tobacco smoke" over air, and would "spend time smoking in preference to other available activities," and even learned to self-inject nicotine. 690008455-8462 (US 54320).

  2. B&W was also privy to internal nicotine reports from other cigarette manufacturers. In a 1973 "Confidential" marketing long-term planning memorandum, the company summarized BATCo and Philip Morris research, as well as some secondary studies. The memorandum acknowledged the drug-like effects of nicotine, and that "cigarettes allow people to self-administer nicotine and at a self-determined rate." The memorandum flatly stated that "Nearly all regular smokers are nicotine dependent" and described the smoking behavior of addicted smokers. 680096095-6110 at 6096, 6099, 6106 (US 53993).

  3. As the following excerpts demonstrate, the Memorandum directly addressed a number of the criteria used to determine addiction. The 1973 "Confidential" memorandum described tolerance to nicotine:

As the novice [smoker] acquires tolerance to the irritation of the smoke over a period of two or three years, he becomes conditioned to a high and regular intake of nicotine. . . . Physical dependence involves changes which are physiological. Firstly, this is shown by the smoker's tolerance to the effects of nicotine. This is due to changes at the synapses. The smoker also has an increased capacity to metabolise and excrete the drug, mainly in the liver.

457

Id. at 6095, 6101, 6103.

  1. The memorandum also accepted and described the adverse withdrawal symptoms experienced by smokers who abstain:

The rush of nicotine into the blood stream and nervous system is short-lived; therefore, reducing consumption would cause withdrawal and all of its unpleasant side effects so long as the smoker is restricted from smoking. Nicotine vacates the system in 30 minutes or so and at that time withdrawal starts.

Id. at 6096.

  1. The memorandum further described the concept of nicotine compensation by smokers to obtain the desired amount of nicotine:

If the nicotine level of cigarettes fails to completely achieve the desired mood change, that cigarette will be drawn on deeper, the smoke held longer, and consumption will rise. . . . Reductions in nicotine are therefore compensated for by consumers but the limit to which they can compensate for the diminished nicotine/diminished therapeutic efficacy is unknown. R&D is studying this subject at the present time.

Id. at 6095.

  1. Finally, the memorandum summarized external research suggesting smokers are, in effect, drug addicted:

[M]onkeys can be trained to inject themselves with nicotine for its own sake, just as they will inject other dependence-producing drugs, e.g., opiates, caffeine, amphetamine, cocaine . . . in the 1970s and 1980s In twenty to thirty minutes after the smoker has finished his cigarette, most of the nicotine has left his brain for other organs -- stomach, liver, and kidneys -- and this is just about the time that the heavily dependent smoker needs his next cigarette.

458
  1. Minutes taken at a 1974 B&W/BATCo conference included the conclusion: "Whatever the characteristics of cigarettes as determined by smoking machines, the smoker adjusts his pattern to deliver his own nicotine requirements." 2502272091-2096 at 2092 (US 45990).

  2. In January 1974, B&W hired an advertising agency to study the market for its new cigarette Raleigh Extra Milds. The specific goal of the study was to "aid in the development of future marketing and creative planning for the new Raleigh cigarettes." The advertising strategy presented to B&W included the following broad observations:

obviously the negative aspects of smoking outweigh the positives, so much so that many of the men and women interviewed had attempted to quit or at least considered quitting smoking. Apparently the Surgeon General's warnings have had a considerable impact upon smokers' attitudes toward their habit if not their behavior. However, as additional evidence of the addictive qualities of smoking, those who tried to quit, both male and female, admitted great difficulties in overcoming the psychological and/or the physiological urge or craving to smoke. Their presence in these discussions attests to their lack of success. The inability to quit or even attempt to quit often results in some degree of guilt and the admission to one's self of a "dependency" on cigarettes or a lack of willpower.

680289650-9743 at 9665 (US 85307).

  1. In August 1975, B&W commissioned a marketing report titled "New Product Ideas Developed for B&W." One exhibit to the study created an "Addiction Profile" to describe the relative intensity of smoking motivation. The study then divided smokers into three groups, "Mainstream" smokers, "Compromisers," and "Justifiers." "Compromisers" were defined as those "heavily addicted" smokers who have made "many attempts to quit" and were "searching for a solution to their problem." "Justifiers," in contrast, referred to those who were "less addicted" and who were "quick to rationalize." 680287748-7895 at 7770, 7773 (US 85308).
459
  1. In a section of the report titled "Background Information on Cigarette Smoking Habits," the report emphasized a smoker's "need" for cigarettes:

At times, a person smokes because it is something he depends on to keep going, in order to be able to function and to face the problems in daily life. This is when a cigarette is needed. . . . Let's take first the situations where a cigarette is needed. This is usually characterized by its being smoked quickly, where the smoker is hardly aware that he is smoking. It serves to relieve tension, frustration, irritation, or insecurity. It has a calming effect. Here the relaxation is of the type of a quick, crucial shot in the arm.

680287748-7895 at 7835 (US 85308).

  1. In 1977, a B&W advertising conference was held at the company headquarters in Louisville to review company research and discuss the company's advertising for a "Low Tar High Nicotine Cigarette." The conference report included the following under the heading "Goals/Wishes":

• MULTIPLY NICOTINE RUSH

• get across to consumer that what he likes (NICOTINE) is not what hurts (TAR) • have FREE NICOTINE as opposed to BOUND • show VALUE OF NICOTINE (lift, A.M. Starter) • market an ADDICTIVE PRODUCT in an ETHICAL