Publications and Public Statements of TIRC/CTR

TIRC/CTR Annual Reports

¶90. TIRC/CTR published and issued Annual Reports from 1956 through 1997. McAllister WD, 20:10-11. Copies of the TIRC/CTR Annual Reports were sent to libraries, colleges and universities, deans of medical schools, science and medical editors and writers for the popular press, CTR grant recipients, and members of professional medical societies. McAllister WD, 20:14- 24; Glenn PD, Sontag v. U.S. Tobacco, 10/16/96, 34:4-23; Sommers PD, Rogers v. R.J. Reynolds, 12/17/85, 18:8-19.

¶91. The TIRC/CTR Annual Reports routinely included, in varying formats: abstracts of articles published by researchers funded by TIRC/CTR grants; brief statements regarding organization and policy; lists of SAB members and their affiliations; lists of current and former grantees; lists of ongoing and completed projects; and research summaries, commentaries, rationales, and observations. Zahn PD, Cipollone v. Liggett, 12/16/86, 79:4-13, 81:1-9; CTRAR000001-0013 (JD 090000); CTRAR000015-0040 (JD 090001); CTRAR000041-0073 (JD 090002); CTRAR000074-0109 (JD 090003); CTRAR000110-0147 (JD 090004); CTRAR000148-0185 (JD 090005); CTRAR000186-0216 (JD 090006); CTRAR000217-0253 (JD 090007); CTRAR000254- 0293 (JD 090008); CTRAR000294-0334 (JD 090009); CTRAR000335- 0376 (JD 090010); CTRAR000377-0433 (JD 090011); CTRAR000434-0477 (JD 090012); CTRAR000478-0526 (JD 090013); CTRAR000527-0580 (JD 090014); CTRAR000581-0629 (JD 090015); CTRAR000630- 0675 (JD 090016); CTRAR000676-0717 (JD 090017); CTRAR000719-0763 (JD 090018); CTRAR000764-0807 (JD 090019); CTRAR000808-0861 (JD 090020); CTRAR000862-0916 (JD 090021); CTRAR000917-0974 (JD 090022); CTRAR000975-1036 (JD 090023); CTRAR0010371097 (JD 090024); CTRAR001098-1172 (JD 090025); CTRAR001173-1246 (JD 090026); CTRAR001247-1355 (JD 090027); CTRAR001356-1451 (JD 090028); CTRAR001452-1547 (JD 090029); CTRAR001548-1649 (JD 090030); CTRAR001650-1767 (JD 090031); CTRAR001768- 1880 (JD 090032); CTRAR001881-2003 (JD 090033); CTRAR002004-2149 (JD 090034); CTRAR002150-2287 (JD 090035); CTRAR002288-2465 (JD 090036); CTRAR002466-2619 (JD 090037); CTRAR002620-2784 (JD 090038); 70000302-0618 (JD 090039); 85865669-5692 (US 22954); 85865742-5804 (US 21082); 85865805-5873 (US 21083); 85865874-5946 (US 21084); 01141473-1541 (US 20039); 85866020-6080 (US 21085); 1002315412-5483 (US 20125); 1002315484-5561 (US 20126); 1002315562-5640 (US 20010); 1002315641-5722 (US 20011); 1002315723-5834 (US 20127); 501773418-3466 (US 20686); 1002315835-5920 (US 21800); 85865693-5741 (US 22237); 1005082487-2584 (US 20202); 1005082585-2690 (US 20203); 1005082691-2788 (US 20012); 2028556086-6177 (US 20428); 1002316312-6397 (US 20128); 1002316398-6485 (US 20129); 1002316486-6571 (US 20130); 1002316572-6677 (US 20131); 1002316678-6780 (US 20132).

¶92. From 1956 until 1993, TIRC/CTR public relations counsel Leonard Zahn was in charge of preparing and compiling the Annual Reports, making distribution recommendations, and drafting the Introduction section for some of them. Zahn PD, Cipollone v. Liggett, 12/18/86, 368:23-369:4, 369:10-370:14, 371:5-9, 371:11-372:8, 379:16-381:24, 382:17-21; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 41:22-45:12, 48:2-7, 49:6-17, 49:22-51:1, 51:14-21, 52:8- 23; CTRMN015594-015613 (US 79903). In a December 1972 memo attached to his proposed outline for the next report, Zahn acknowledged that

[t]he research section of the CTR [Annual] Report is based on published articles by grantees and, unfortunately, not much directly related to tobacco appeared in the last 18 months.

¶CTRMN015614-015616 (US 79904).

¶93. The commentary in the Annual Reports uniformly challenged the hypothesis that smoking was linked to lung cancer and emphasized that data regarding smoking and health were controversial, contradictory, and inconclusive. For example:

• 1957 Report of the Scientific Director ("[S]ound medical and experimental knowledge of tobacco use is relatively limited, at times contradictory, and often conjectural rather than factual. . . . There is not known today any simple or quick way to answer the question of whether any one factor has a role in causing human lung cancer . . . no one has established that cigarette smoke, or any one of its known constituents, is cancer causing to man. . . . Members of the [TIRC SAB] Board take the general position that definitive conclusions or predictions of individual risks are unwarranted by the present imperfect state of knowledge in the complex field of lung cancer causation," and describing cancer as "this so-called constitutional disease.");

1958 Report of the Scientific Director ("[A] problem may well be obscured, and its solution delayed, by the soothing acceptance of an oversimplified and immature [tobacco theory] hypothesis. . . . The proponents of the tobacco theory have generated increasingly intensive and extensive propaganda. . . . As a result, a non-scientific atmosphere, conducive to prematurity, unbalance, and inadequacy of public judgement, has pervaded the whole field. . . . The prohibition concept discounts or ignores all considerations of smoking benefits in terms of pleasure, relaxation, relief of tension or other functions.");

1961 Report of the Scientific Director ("[T]hose who most actively promote this [smoking-lung cancer] hypothesis have consistently ignored or, at best, have minimized the fact that numerous directly relevant experiments either have failed to support the hypothesis or have provided only weak or uncertain data.");

1963-64 Report of the Scientific Director ("After 10 years the fact remains that knowledge is insufficient either to provide adequate proof of any hypothesis or to define the basic mechanisms of health and disease with which we are concerned.");

1964-65 Report of the Scientific Director ("[E]vidence to support the thesis that cigarettes exercise a direct carcinogenic effect on man has not been forthcoming.");

1978 Report of the Council for Tobacco Research-U.S.A., Inc. ("[T]he complex etiology of these constitutional diseases [cancer, heart disease, chronic pulmonary ailments] remains unraveled. These diseases have been associated statistically with smoking, but such associations are not proof of cause and effect.").

¶CTRAR000015-0040 (JD 090001); 501773418-3466 (US 20686); Brandt WD, 86:19-87:20; 85865693-5741 (US 22237); CTRAR000041-0073 (JD 090002); 85865742-5804 (US 21082); CTRAR000148-0185 (JD 090005); 01141473-1541 (US 20039); CTRAR000217-0253 (JD 090007); 1002315412-5483 (US 20125); CTRAR000254-0293 (JD 090008); 1002315484-5561 (US 20126); CTRAR000808-0861 (JD 090020); 1002316572-6677 (US 20131).

¶94. For more than two decades, the commentaries in the Annual Reports also discounted the conclusions reached by the public health community and the Surgeon General linking smoking and disease and simply repeated the "open question" position of the tobacco industry. 515709297- 9340 (US 20866); see Section (V)(A), infra. Robert Hockett, Associate Scientific Director at the Council for Tobacco Research–USA, which evaluated the content of the Annual Reports for the industry wrote: "The aim of [Little's] summations, much too apparently, seems to be to protect smoking." MNAT00515749-5762 at 5752 (US 63570); Brandt WD, 122:15-123:13; Lisanti PD, Small v. Lorillard, 3/31/98, 454:5-14.

¶95. A June 20, 1984 memorandum from Wendell Stone, attorney at Shook, Hardy & Bacon, during the Cipollone litigation, acknowledged the bias of CTR/TIRC's annual reports. Stone commented that the reports, especially the early ones, "contained lengthy commentary . . . which read much like industry position papers." Stone also concluded:

The TIRC/CTR commentary on research did not always seem to conform fully to the positions taken or implied in the abstract. For example, with respect to the Leuchtenberger inhalation research, the abstracts in the annual reports tend to give the impression that these researchers did in fact have a good animal model of lung cancer production by smoke inhalation. However, commentary on this research in the front material to the reports tended to argue away the relevance of the results.

¶515709297-515709340 (US 20866).

TIRC/CTR Newsletters

¶96. From October 1957 to at least 1968, first TIRC and then the Tobacco Institute published a newsletter variously named Tobacco and Health, Research Reports on Tobacco and Health, and Reports on Tobacco and Health Research. The newsletter was published two or three times a year; contained articles that disputed the relationship between smoking and disease; criticized research supporting such a relationship; and emphasized that differing opinions existed regarding tobacco use and health. Brandt WD, 84:10-85:9; TIMN0000713-0714 (US 21264); TIKU000006665-6668 (US 86007); TIMN0000719-0722 (US 86011); TIMN0000723-0726 (US 86012); TIMN0000727-0728 (US 86013); TIMN0000733-0734 (US 86014*); TIMN0000736-0738 (US 86015*); TIMN0000739-0744 (US 86016); TIMN0000745-0747 (US 86017); TIMN0000748-0750 (US 86045); TIMN0000751-0756 (US 86018); TIMN0000757-0762 (US 86019); TIMN0000763-0774 (US 86020); TIMN0000775-0780 (US 86021); TIMN0000781-0784 (US 86022); TIMN0000785-0788 (US 86023); TIMN0000789-0792 (US 86024); TIMN0000793-0796 (US 86025); TIMN0000797-0800 (US 86026); TIMN0000801-0804 (US 86027); TIMN0000805-0808 (US 86028); TIMN0000809-0812 (US 86029); TIMN0123324-3327 (US 21282); TIMN0130693-0696 (US 62844); TIMN0130707-0710 (US 62845); TIMN0130728-0731 (US 62847); TIMN0130802-0803 (US 62849); TIMN0130816-0817 (US 62851); TIMN0000713-0714 (US 21264); TIMN0123276-3279 (US 77059); TIMN0123304-3307 (US 77060); TIMN0130687-0690 (US 77068); TIMN0130742-0745 (US 77069); TIMN0130749-0752 (US 77070); TIMN0130778-0781 (US 77071); TITX0006679-6682 (US 77111); 502367882-7887 (US 49132); TIMN0123314-3317 (US 21345); TITX0006691-6694 (US 86044); TIMN0000748-0750 (US 86045); TIMN0130810-0811 (US 62850); TIMN0130735-0738 (US 62848); TIKU000006559-6562 (US 86048); TIKU000006545-6548 (US 86050); TIMN0130756-0761 (US 86051); TIMN0130714-0717 (US 62 846); TIKU000006538-6541 (US 86052); 511018410-8413 (US 22459); MNAT00515648-5651 (US 72185).

¶97. Initially, TIRC was to publish the Tobacco and Health newsletter. This provoked a strong reaction from members of the Scientific Advisory Board who received advance copies of the first issue. In a letter to SAB Chairman Clarence Little, SAB member McKeen Cattell classified the new publication as "obviously propaganda material" and expressed serious concern about the effect it would have on the SAB's program. 701235030-5030 (US 31474). Julius Comroe, another SAB member, advised that the SAB and TIRC should not be identified with the Tobacco and Health publication. 70123533-3533 (JD 093608); 70123536-3536 (JD 093610).

¶98. In response to these concerns, the Tobacco Information Committee, a subcommittee of TIRC, was formed in late 1957, from what was previously known as the TIRC Public Relations Committee. The committee was comprised of public relations employees from the companies and public relations counsel representing the companies, and one of its principal functions was to publish the Tobacco and Health newsletter. The first two issues of the Tobacco and Health newsletter were issued under the name of the Tobacco Information Committee and financed from the TIRC budget. 70123534-3534 (JD 093609); CTR-TIRC-MIN000001-0252 at 0125-0127 (JD 093292); CTRMN039046-9106 at 9056 (JD 092825).

¶99. In 1958, after the first two issues were published, the Tobacco Institute assumed responsibility for publishing the Tobacco and Health newsletter on behalf of Defendants. Even when published by the Tobacco Institute, there was close coordination with TIRC, and most editorial material derived from TIRC annual reports, the TIRC library, and other materials available through TIRC. CTR-TIRC-MIN000001-0252 at 0154, 0162 (JD 093292).

¶100. A 1968 Tobacco and Health Research procedural memorandum from Hill & Knowlton to William Kloepfer, Tobacco Institute Vice President, admitted that "[m]ost papers used in TH&R come from the Council for Tobacco Research Library through advance distribution of Ken Austin of CTR." Zahn PD, Cipollone v. Liggett, 12/18/86, 344:9-22.

¶103. In a procedural memorandum, Hill & Knowlton delineated specific criteria for selecting reports to be included in Tobacco and Health. The memorandum stated that research did not have to always deal specifically with tobacco; for example, research which suggested that other factors may cause diseases associated with smoking should be included; "[t]he most important type of story is that which casts doubt on the cause and effect theory of disease and smoking." Brandt WD, 119:7-21; TIMN00721488-1491 (US 63575); (US 21302), (US 21614); CTRPUBLICSTMT001270-1281 (US 32646).

TIRC/CTR Press Releases and Other Public Statements

¶104. TIRC/CTR, with the assistance of its public relations counsel Hill & Knowlton, and later Leonard Zahn, was remarkably effective in making certain that the Defendants' position of "no proof" and the need for "more research" reached the national media, and thus the public. Typically, news accounts of new medical findings would be accompanied by a press release or statement from TIRC/CTR insisting that "nothing new" had been found and the studies were "merely" statistical. Brandt WD, 78:18-79:2, 119:22-120:15. Moreover, TIRC/CTR was effective in mobilizing a relatively small group of skeptics and amplifying their views as if they were equal in number and significance to an emerging scientific consensus about the harms of smoking (discussed in detail at Section V(A)(3)(c), infra). Brandt WD, 79:6-8, 90:20-92:5; see, e.g., 500518759-8761 (US 20636) (1958 year-end Hill & Knowlton/TIRC press release in which TIRC Chairman Timothy Hartnett asserts that "scientists of high professional standing have produced additional evidence and opinions that challenge the validity of broad charges against tobacco use"); 503283464-3467 (US 22981) (TIRC's Clarence Cook Little's November 1959 response to Surgeon General Burney's statement that begins, "Today, more than ever before, scientific evidence is accumulating that conflicts with or fails to support the tobacco-smoking theories of lung cancer."); 500518873-8875 (US 63601) (1960 Hill & Knowlton/TIRC press release quoting Little and titled "New Evidence Shows Complexities of Lung Cancer, Scientist [Little] Says"); 00552685-2690 (US 47724) (1970 Leonard Zahn/CTR press release quoting Little that begins, "A considerable number of studies by independent scientists raise questions as to whether smoking has actually been shown to be a health hazard"); 60028206-8210 (US 53301); 670307882-7891 (US 21867); 670307882-7883 (US 63574) (1969 CTR press release quoting Little that begins, "The scientist [Little] who has been associated with more research in tobacco and health than any other person declared today that 'there is no demonstrated causal relationship between smoking and any disease. The gaps in knowledge are so great[.]'"); CTRPUBLICSTMT001241-1545 at 1265 (JD 043276) (1970 Leonard Zahn/CTR press release quoting Little on genetic and environmental factor theories); 500518873-8875 (US 20635); 500015901-5905 (US 47778).

93 94

¶105. The relationship between TIRC/CTR and Hill & Knowlton remained close for many years. Because TIRC had no headquarters and no staff when it was formed, Hill & Knowlton provided a working staff and temporary office space and assigned one of its experienced executives, Wilson Hoyt, to serve as Executive Secretary for the TIRC. In early 1956, the TIRC Executive Committee approved the relocation of TIRC's offices to the building where Hill & Knowlton's offices were located. At their January 29, 1964 meeting, the TIRC Executive Committee agreed to immediately transfer seven Hill & Knowlton employees, including Hoyt, to TIRC. TLT0902041- 2064 (US 88364); 93218985-8986 (US 21116); TLT0900114-0115 (US 88402); CTRMN003816- 3835 at 3825 (US 21147).

¶106. Even after the Tobacco Institute (discussed further infra at Section III(D)) was created in 1958, TIRC/CTR continued its public relations activities with the assistance of public relations counsel Hill & Knowlton, and later Leonard Zahn. 93218985-8986 (US 21116); 70057072-7073 (US 21983); 512678484-8499 (US 51653).

¶107. As noted earlier, Hill & Knowlton gave advice and direction to the leaders of the Enterprise even before its actual formation in December of 1953. Thereafter, it provided public relations services for TIRC/CTR from 1954 until 1964. It provided the same services for the Tobacco Institute from 1958 until 1968, in 1979, and again from 1987 through 1991. USX6390001-0400 at 0012 (US 89555). See also Adams PD, United States v. Philip Morris, 6/19/02, 495:5-17. Leonard Zahn was an integral part of TIRC/CTR's public relations program -- first as an employee of Hill & Knowlton assigned to the TIRC account, and later, on his own, as primary public relations counsel for CTR. Leonard Zahn was hired by Hill & Knowlton in 1955 to work on the TIRC account. In 1969, Zahn resigned from Hill & Knowlton; formed his own company, Leonard Zahn & Associates; and was appointed CTR's public relations counsel. Zahn PD, Cipollone v. Liggett, 12/16/86, 9:19-21, 10:4-8, 43:17-20, 44:12-20, 45:15-18, 46:5-7, 16-17; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 48:15-22, 58:8-17, 59:9-17; Zahn PD, Richardson v. Philip Morris, 12/1/98, 16:9-17:8, 21:21-22:6, 25:13-26:16; Zahn PD, Richardson v. Philip Morris, 12/16/98, 308:7-14. Zahn & Associates served as CTR public relations counsel through 1993 and was paid $127,053 by CTR that last year. CTRMIN-BD 000001-0303 at 0277, 0283 (JD 093208). During his decades with TIRC/CTR, Zahn attended and reported on scientific conferences, attended SAB meetings, organized press conferences, served as liaison between CTR and the Tobacco Institute, prepared articles, and drafted press releases and public statements as well as the annual reports for CTR. Zahn PD, Richardson v. Philip Morris, 12/16/98, 308:7-14; McAllister WD, 188:20-189:5; Kornegay PD, Cipollone v. Liggett, 12/5/84, 529:4-530:10; 70124410-4414 (US 31512); CTR98CONG00070-0070 (US 25897); CTRMN015360-5360 (US 79868); CTRMN015361-5361 (US 79869); CTRMN015362-5365 (US 79870); CTRMN015370- 5371 (US 79873); CTRMN015380-5381 (U. S. Ex. 79877); CTRMNZN475-477 (US 21160).