Relationship Between the Tobacco Institute and TIRC/CTR

¶130. Creation of the Tobacco Institute did not end TIRC/CTR's public relations activities. Rather, it marked the beginning of a joint public relations effort, between CTR, the Tobacco Institute, and their overlapping Defendant-members in which the scientific and information functions of TIRC/CTR were used by the Tobacco Institute in its public relations activities, although there was never a totally precise division of labor between TIRC/CTR and the Tobacco Industry. Brandt WD, 89:23-90:3.

¶131. During the SAB's February 14-15, 1958 meeting, SAB Chairman Little asked TIRC Chairman Timothy Hartnett about the newly-formed Tobacco Institute, its purposes, and its relationship, if any, to TIRC. Hartnett explained that the Tobacco Institute was a separate entity and that its formation did not change or alter in any respect TIRC, its objectives, or its functions. He told the SAB members that it had become apparent, during the 1957 congressional hearings before the Blatnik Committee which had addressed the disclosure of tar and nicotine yields in advertising, that the tobacco industry needed to have one spokesman, rather than someone from each tobacco company, represent it at various times and places. CTRMIN-SAB000001-1061 at 0114 (JD 090960); 681879254-9715 at 9391 (US 21020); see also Chilcote PD, Minnesota v. Philip Morris, 9/18/97, 27:5-28:6, 30:16-20.

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¶132. TIRC Chairman Hartnett also informed the SAB members at that same meeting that Hill & Knowlton was acting as public relations counsel for both TIRC and the Tobacco Institute and "pointed out the desirability of this from both organizations' standpoint." CTRMIN-SAB000001- 1061, 70011735-1757 at 0114 (JD 090960); see also Zahn PD, Cipollone v. Liggett, 12/16/86, 85:16-86:20.

¶133. At the July 1958 meeting of the Tobacco Institute Executive Committee, Chairman Bowman Gray of Reynolds reported that the respective functions of the Tobacco Institute and TIRC had been discussed at length, and announced "a tentative decision to let the matter of the respective functions of the two organizations (the Tobacco Institute and the TIRC) be decided on a case by case basis under the guidance of public relations counsel," Hill & Knowlton. 04209323-9326 at 9323 (US 47370); 681879254-9715 at 9391-9392 (US 21020).

¶134. Defendants expected the Tobacco Institute and TIRC/CTR to act in coordination when taking a position on specific news stories involving tobacco and health. In a February 1958 letter to John Hill of Hill & Knowlton, Paul Hahn, President of American, wrote, "In the present state of evidence, the position of the Institute should be compatible with that of TIRC and SAB." TLT0900385-0389 at 0387 (US 88209).

¶135. Hill & Knowlton understood that

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[c]omment from TIRC for the press remains an effective way to meet anti-tobacco publicity efforts and emphasizes the multiple factors that should be considered. This, of course, is complemented with a continuing program of supplying information to give editors and writers a balanced perspective on questions of tobacco and health.

¶HT0145148-5150 (US 21177).

¶136. Hill & Knowlton worked aggressively on behalf of both its clients, TIRC and the Tobacco Institute, to influence the media and ensure that the position and interests of the industry regarding smoking and health were well represented to journalists, broadcast reporters and magazine writers. Hill & Knowlton staff carefully documented their interventions, and their many successes. Brandt WD, 59:4-7, 131:18-132:1.

¶137. For example, Hill & Knowlton, having anticipated the appearance of an article by United States Surgeon General Leroy E. Burney in the November 1959 Journal of the American Medical Association, VXA2150046-0054 (US 63608), learned of its contents and provided the press, in advance of publication, with statements from both TIRC and Tobacco Institute representatives attacking the Surgeon General's assessment of the scientific evidence linking cigarettes to lung cancer. Brandt WD, 92:17-94:7; TIOK0000477-0477 (US 22720) (Tobacco Institute President James Richards); 503283464-3467 (US 22981) (TIRC Scientific Director Clarence Cook Little); HT0145148-5150 (US 21177); TIMN0110091-0091 (US 21319).

¶138. TIRC Chairman Timothy Hartnett reported to TIRC members in 1960 that:

The staff of TIRC is constantly in touch with Hill & Knowlton, and consults on every phase of activity relating to health matters. For example, it provides speakers for platforms, helps analyze both scientific papers and charges against smoking which appear in the public press, and consults on statements which are issued to inform the public.

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¶CTR-TIRC-MIN000174-0186 at 0184 (US 33016); CTR-TIRC-MIN000001-000252 at 0184 (JD 093292); 681879254-9715 at 9393 (US 21020).

¶139. In the 1970s, Defendants discussed the need for even closer cooperation between CTR and the Tobacco Institute. William Kloepfer and Fred Panzer, Tobacco Institute Vice Presidents, proposed specific guidelines to assist CTR Chairman Henry Ramm select a new Scientific Director for CTR. TIMN0004138-4141 (US 87588). The Tobacco Institute Executive Committee directed Tobacco Institute President Horace Kornegay to meet with Henry Ramm to discuss "closer cooperation between the Institute and the Council for Tobacco Research." Kornegay reported, at the April 2, 1973 meeting of the Tobacco Institute membership and Board of Directors, that "CTR did desire closer cooperation with the Institute and that the scientific personnel of the Institute would be invited to attend the May 15, 1973 CTR meeting in New York." LG2000457- 0461 at 0459 (US 21876).

¶140. After four months as CTR President, Addison Yeaman, chaired his first meeting of the CTR membership on December 10, 1975. He told the members that, "all the resources [of CTR], all the knowledge [of CTR], all the help that CTR can give, should be available to the lawyers, to the Tobacco Institute, and to any other of the troops in the field," and that CTR should be independent but "independent within the policies set down by the membership." 11303014-3020 (US 86005); 682631405-1421 (US 21025).

¶141. In its press releases, advertisements, brochures, and other materials, the Tobacco Institute publicized the substance of TIRC/CTR research and the aggregate amount of the funds spent, as well as the amounts contributed by the industry in order to influence the public's perception of the industry's concern about cigarette smoking and health. Duffin PD, Cipollone v. Liggett, 1/23/86, 108:15-20; see, e.g., 502644592-4616 at 4615-4616 (US 20703); 2015046793-6839 at 6828 (US 25526).

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¶142. A 1970 Tobacco Institute ad in the Washington Post discussed CTR grants totaling over $17 million under the heading "After millions of dollars and over 20 years of research: The question about smoking and health is still a question." TIMN0081352 (US 21305); 500004807-4809 (US 20608). A 1975 Tobacco Institute press release promoting its booklet "The Cigarette Controversy," an outline of doubts about the health risks of smoking, noted the industry's commitment of "$50 million to help support researchers who are seeking the truth." TIMN0120638-0639 (US 21698). In 1981, 1982, and 1984, Tobacco Institute brochures providing publicity for CTR funding of research were titled respectively "Tobacco Industry Research on Smoking and Health: A $104 Million Commitment," 2046754709-4719 (US 20474); "Tobacco Industry Research on Smoking and Health: A $111 Million Commitment," 670500617-0620 (US 20968); and "Tobacco Industry Research on Smoking and Health: A $120 Million Commitment." 2045377870-7876 (US 20460).

¶143. One Tobacco Institute advertisement that ran in major newspapers and magazines throughout the country consisted of a photocopy of a February 1969 CTR press release, 779023398- 3400 (US 36484), quoting CTR's Scientific Director, Clarence Cook Little, with a headline declaring "How Much is Known about Smoking and Health." TIMN0000560-0561 (US 21874) (ad in Broadcasting); 1005132848-2849 (US 20222) (ad in New York Times); TIMN0081695-1696 (US 21308) (ad in February through April 1969 magazines and newspapers). The General Counsel of Philip Morris, Reynolds, B&W, Lorillard, and Liggett were asked to, and did, approve the running of the advertisement. 1005153098-3099 (US 20227); TIMN0081698-1698 (US 21309).

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¶144. In a November 1962 interview on a Mutual Broadcasting System radio show discussing "Cigarette Smoking and Lung Cancer," Tobacco Institute President George Allen explained that the Tobacco Institute supported smoking and health research

through a sister organization, the Tobacco [Industry] Research Committee, which has done more investigation in the eight years since it was established than any other private scientific organization or medical organization in the specific subject of lung cancer . . . over 100 individual grants . . . over five million dollars.

¶When asked about statistical studies which seemed to implicate smoking and disease, Allen replied with the Defendants' position that

[t]hese statistical studies add up to the need for further intensive scientific work on the subject . . . nobody knows what causes cancer . . . this is a matter that remains to be found by thorough and energetic scientific investigation.

¶500052010-2018 at 2010-2011 (US 63600); Brandt WD, at 114:7-115:7.

¶145. Leonard Zahn, TIRC/CTR's public relations counsel, maintained close ties with the Tobacco Institute and served as a liaison between the two organizations. He kept in close touch with William Kloepfer at the Tobacco Institute, "advising [Kloepfer] in advance about meetings and other situations that might create a problem," such as an article or meeting "dealing with an adverse report on smokers." Zahn PD, Cipollone v. Liggett, 12/18/86, 408:5-409:19. Zahn sent carbon copies of his CTR reports to the Tobacco Institute; spoke at sessions of the Tobacco Institute College of Tobacco Knowledge; and was a member of the Tobacco Institute Communications Committee. Duffin PD, Cipollone v. Liggett, 1/23/86, 87:12-88:2; Zahn PD, Massachusetts v. Philip Morris, 5/28/98, 145:14-146:11, 149:25-150:10; TI04962331-2334 (US 86167); TI04962389-2389 (US 62201); TI04962390-2398 (US 62202); TIFL0068387-8387 (US 77028); Zahn PD, Cipollone v. Liggett, 12/16/86, 129:13-15, 18, 21-23, 130:1-3, 12-19, 130:22-131:2, 188:24-189:6; Zahn PD, Cipollone v. Liggett, 12/17/86, 274:2-8, 275:5-21; Zahn PD, Richardson v. Philip Morris, 12/1/98, 52:9-55:3, 275:17-276:6; Zahn PD, Richardson v. Philip Morris, 12/16/98, 308:7-14; Zahn PD, Richardson v. Philip Morris, 1/13/99, 837:6-21.

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¶146. According to a 1969 letter, Robert Hockett, CTR's Associate Scientific Director, was asked to review Tobacco Institute publications, such as "The Cigarette Controversy" and "Eight Questions and Answers," and give suggestions for improvement. HK0108004 (US 21171).

¶147. Members of CTR's supposedly independent SAB, like Arthur Furst and Sheldon Sommers, appeared at Tobacco Institute press conferences to discredit mainstream scientific research. In an April 1970 briefing and update "on industry public relations in the field of smoking and health," Jim Bowling of Philip Morris reported to Robert Heimann, President of American, about Tobacco Institute plans to hold a press conference on April 30, 1970, to discredit the Auerbach-Hammond beagle study (discussed further at Section III(F)(3)(¶337-342), infra). The spokesmen for the industry were to be CTR's Arthur Furst and Sheldon Sommers who would "take a stand against the ACS [American Cancer Society] propaganda approach to 'science.'" 966000976- 0977 (US 86084).

¶148. The Tobacco Institute invited Sheldon Sommers to testify before Congress on behalf of the industry. Sommers PD, Galbraith v. Reynolds, 9/4/85, 58:25-59:10. Leonard Zahn at TIRC/CTR edited the testimony that Sommers gave before Congress into a magazine article for American Druggist. Zahn PD, Cipollone v. Liggett, 12/17/1986, 223:12-224:11, 224:16-224:16, 225:7-225:12; Sommers PD, Cipollone v. Liggett, 10/3/86, 276:11-18; Sommers PT, Cipollone v. Liggett, 4/20/88, 8890:18-8890:25. The article titled "Smoking and Health: Many Unanswered Questions" was published in the September 1970 issue of American Druggist. The editor's note identified author Sheldon Sommers as Chairman of the SAB. ZN16062-6065 (US 21161); CTRMN015361 (US 79869); CTRMN015362-5365 (US 79870); CTRMN015384-5387 (US 79879); CTRMN015389 (US 79881).

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¶149. In 1974, William Kloepfer, Tobacco Institute Vice President for Public Affairs, conducted filmed interviews with several CTR-affiliated persons on issues related to smoking and health. The opinions of the CTR-affiliated persons were unanimously supportive of the Enterprise's positions on smoking and health issues, although both individuals claimed to be expressing their own individual personal opinions. Sheldon Sommers, CTR's Association Scientific Director and SAB Chairman, stated that "there is no sound evidence that smoking is harmful to the health of the nonsmoker." Domingo Aviado, CTR Special Project funding recipient, stated that "on the basis of existing scientific evidence, tobacco smoke, I think, constitutes no health hazard to normal nonsmokers in public places." Robert Hockett, CTR's Scientific Director at that time, stated that "it just seems to me there is no justification for any general laws with respect to the protecting of nonsmokers from smoke." TITX0001450-1455 (US 77110).

¶150. The Tobacco Institute failed to identify scientists as recipients of CTR Special Project funding and/or Lawyers Special Accounts funding (discussed further at Section (III)(E)(2-3), infra), when incorporating their statements and conclusions in press releases and other publications as those of supposedly independent researchers or research results. TIMN0120737-0738 (US 87601) (1982 press release challenging cigarette package warning, quoting Sterling); TI12431636-1650 (US 62384) (1984 review of medical/scientific testimony presented to Congress titled "The Cigarette Controversy: Why More Research Is Needed," quoting Aviado, Bick, Bing, Blau, Eysenck, Fisher, Furst, Hickey, Rao, Salvaggio, Seltzer, Sterling); MNAT00224317-4354 (US 21223) (1978 brochure titled "The Smoking Controversy: A Perspective," quoting Seltzer, Feinstein, Aviado, Sterling, Huber); TNWL0019638-9640 (US 21703) (1983 press release opposing cigarette package warnings, quoting Blau, Fisher, Eysenck, and CTR's Scientific Director Sommers), TIMN0138444-8446 (US 85362), TIMN0120772-0773 (US 85363), (US 87625); TIMN0125189-5189 (US 77065) (1988 press release disputing Surgeon General Koop's statement that cigarette smoking was addictive and quoting Blau).

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