Reports that Matter

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

Relationship Between the Tobacco Institute and TIRC/CTR

Section 19 of 129

Relationship Between the Tobacco Institute and TIRC/CTR

  1. 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.

  2. 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

104

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.

  1. 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.

  2. 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).

  3. 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."

  4. Hill & Knowlton understood that

105

[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).

  1. 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.

  2. 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).

  1. 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.
106

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

  1. 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).

  2. 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).

  3. 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,

107

1/23/86, 108:15-20; see, e.g., 502644592-4616 at 4615-4616 (US 20703); 2015046793-6839 at 6828

  1. 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).

  2. 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).

108
  1. 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.

  1. 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.
109

  1. 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).

  2. 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).

  3. 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

110

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).

  1. 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).

  2. 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,

111

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).

  1. Tobacco Institute Press Releases, Public Statements, Advertisements, Brochures, and Other Publications 151. During its existence, the Tobacco Institute was the leading public voice of the

Defendants. Chilcote PD, Minnesota v. Philip Morris Inc., 9/18/97, 27:5-28:6, 30:16-20; Merryman PD, Richardson v. Philip Morris Inc., 56:17-57:5; 60:1-15. To further the Enterprise's goals, the Tobacco Institute created, issued, and disseminated press releases, public statements, advertisements, brochures, pamphlets, and other written materials on behalf of Defendants (1) denying that there was any link between smoking and disease; that nicotine was addictive; that cigarette companies marketed to youth; and that environmental tobacco smoke ("ETS") posed a health risk; and (2) discrediting scientists and public health officials who took a different position on these issues (See e.g., Section V(A)(5)(c), infra). Dawson TT, 1/12/05, 9927:11-9928:18; Dawson WD, 34:5-7, 36:8- 13, 37:4-9, 64:20-23, 65:1-7, 71:12-16, 80:17-23, 81:1-7, 81:13-16, 84:18-19; 87:6-11, 89:1-5, 89:14-19; Chilcote PD, Broin, 11/19/93, 25:8-26:17, 27:15-28:15; Merryman PD, Broin, 11/18/93, 27:18-22; USX6390001-0400 (US 89555); TIMN0081352-1352 (US 21305), (US 63572);

112

78730); MNAT00276115-6117 (US 87665); TIMN0120725-0726 (US 87596); TIMN0120727-0728 (US 87597); TIOK0034156-4181 (US 63019); TIMN0120729-0730 (US 65625); TIMN0120731- 0732 (US 87598); TIMN0120733-0734 (US 87599); TIMN0120735-0736 (US 87600); TIMN0120737-0738 (US 87601); TIMN0120742-0742 (US 87603); TIMN0120743-0743 (US 87604); TIMN0120745-0745 (US 87606); TIMN012046-0746 (US 87607); TIMN0120747-0747 (US 87608); TIMN0120748-0748 (US 87609); TIMN0120750-0750 (US 87610); TIMN0120751- 0751 (US 87611); TIMN0120752-0752 (US 87612); TIMN0120753-0753 (US 87613); TIMN0120754-0754 (US 87614); TIMN0120755-0755 (US 87615); TIMN0120756-0757 (US 87616); TIMN0120758-0759 (US 87617); TIMN0120760-0760 (US 87618); TIMN0120763-0764 (US 87621); TIMN0120768-0769 (US 87623); TIMN0120770-0771 (US 87624); TIMN0120772- 0773 (US 87625); TIMN0131860-1861 (US 21744); TIMN0081712-1713 (US 87629); TIMN0081714-1714 (US 87630); TIMN0000471-0495 (US 87631); TIMN0133954-3960 (US 62653); TIMN0133707-3711 (US 87634); TIMN0076952-6961 (US 87635); TIMN0122571-2573 (US 87637); TIMN0122574-2576 (US 87638); TIMN0122577-2578 (US 87639); TIMN0120706- 0708 (US 87640); TIMN0131847-1847 (US 87641); TIMN0120619-0619 (US 87642); TIMN0120618-0618 (US 87643); TIMN0109576-9576 (US 87644); TIMN0004099-4099 (US 87646); MNAT00275488-5498 (US 87667); TIMN0120792-0793 (US 87668); (no bates) (US 21239); 2025422955-2958 (US 89306); TI 1016-1258 (US 89307); TI1016-1261 (US 89308); TI 1016-1297-1298 (US 89309); 507789709-9710 (US 89310); TIDN 0012098-2099 (US 89311); TIDN 0005825-5826 (US 89312); 506649098-9099 (89313); 507610852-0853 (US 89314); TIMN334986-4988 (US 89315); 507793570-3571 (US 89316); 877161722-1723 (US 89317); TIMN354292-4294 (US 89318); (no bates) (US 89319); (no bates) (US 89320); (no bates) (US

113

89289); (no bates) (US 89290); (no bates) (US 89291); (no bates) (US 89292); (no bates) (US 89293); (no bates) (US 89294); (no bates) (US 89295); (no bates) (US 89296); (no bates) (US 89298); (no bates) (US 89299); (no bates) (US 89300); (no bates) (US 89301); (no bates) (US 89302); (no bates) (US 89321); (no bates) (US 21286); (no bates) (US 21363); (no bates) (US 87735); (no bates) (US 85150); TI0720452-0464 (US 87155*).

  1. There is no question that the Tobacco Institute intended the public to rely on the public statements the organization made on behalf of its cigarette manufacturer members. Dawson TT, 1/12/05, 9930:2-18; Merryman PD, Minnesota v. Philip Morris, 7/15/97, 36:11-24, 38:15-17, 70:24-71:4. As already noted, the Tobacco Institute's public spokespersons appeared on various television shows broadcast on all major networks in all fifty U.S. states. Merryman PT, Minnesota v. Philip Morris, 2/6/98, 2717:22-2718:21; USX6390001-0400 (US 89555). Brennan Dawson, Vice President of Public Relations for the Tobacco Institute and one of its major spokespersons, stated that she, on behalf of the Tobacco Institute, intended the public to rely on the public statements she made on television, regardless of whether the statements she made were in response to questions posed by the media or were spontaneous statements she volunteered to the media. Walker Merryman, another long-time Tobacco Institute spokesperson, similarly stated that the Tobacco Institute intended the public to believe its public statements. Dawson TT, 1/12/05, 10110:1-6; Merryman PD, Minnesota v. Philip Morris, 7/15/97, 113:5-8, 113:15-114:11, 114:15-16, 125:11-19, 153:9-19, 155:6-11, 186:2-25, 189:14-20, 193:22-194:1, 202:19-23; 2025422955-2958 (US 89306); TI 1016-1258 (US 89307); TI1016-1261 (US 89308); TI 1016-1297-1298 (US 89309); 507789709- 9710 (US 89310); TIDN 0012098-2099 (US 89311); TIDN 0005825-5826 (US 89312); 506649098- 9099 (US 89313); 507610852-0853 (US 89314); TIMN334986-4988 (US 89315); 507793570-3571
114

(US 89316); 877161722-1723 (US 89317); TIMN354292-4294 (US 89318); 502823717-3718 (US 50255); TIMN347391-7398 (US 65675); (no bates) (US 89319); (no bates) (US 89320); (no bates) (US 89289); (no bates) (US 89290); (no bates) (US 89291); (no bates) (US 89292); (no bates) (US 89293); (no bates) (US 89294); (no bates) (US 89295); (no bates) (US 89296); (no bates) (US 89298); (no bates) (US 89299); (no bates) (US 89300); (no bates) (US 89301); (no bates) (US 89302); (no bates) (US 89321); (no bates) (US 21286); (no bates) (US 21363); (no bates) (US 87735); (no bates) (US 85150); TI0720452-0464 (US 87155*).

  1. However, when asked about public scientific support for the public statements she was making on behalf of the Tobacco Institute, Brennan Dawson could not name a single public health organization that asserted, as did the Tobacco Institute, that it had not been proven that smoking caused disease during the time she was a spokesperson on behalf of the Tobacco Institute. Dawson WD, 76:8-11. Nor could Ms. Dawson name a single medical doctor, not associated with the tobacco industry, who took the position that it was not proven that smoking caused disease. Dawson WD, 76:12-15. Similarly, Walker Merryman, also a Tobacco Institute spokesperson for over twenty years, could not name a single medical doctor not affiliated with the tobacco industry who publicly took the position that there was some medical doubt as to whether smoking caused disease. Merryman PD, Broin, 28:6-29:2.
  1. The function of the Public Relations Division of the Tobacco Institute was to represent our member companies with the press, general public, anyone who had a question about tobacco, specifically the smoking and health issue, but also economics, history. We represented all the companies, so that no one of them had to answer questions from a press person or stock analyst.
115

Duffin PD, Munn v. Philip Morris, 1/7/87, 93:21-94:5; Chilcote PD, Minnesota v. Philip Morris, 9/18/97, 27:5-28:6, 30:16-30:20. In other words, according to Tobacco Institute Vice President Brennan Dawson, the objectives of the Public Relations Division were "to make public statements and to provide the tobacco industry's point of view, not just one company's, but an industry-wide point of view on matters relating to tobacco." Dawson WD, 34:4-7; 34:13-15.

  1. A May 1, 1972 memorandum from Fred Panzer, a public relations specialist with the Tobacco Institute, to Tobacco Institute President Horace Kornegay began by describing past industry action:

For nearly twenty years, this industry has employed a single strategy to defend itself . . . it has always been a holding strategy, consisting of creating doubt about the health charge without actually denying it, advocating the public's right to smoke without actually urging them to take up the practice . . . encouraging objective scientific research as the only way to resolve the question of health hazard.

Panzer went on to discuss a proposed public relations campaign -- The Roper Proposal -- designed to persuade the public that "[c]igarette smoking may not be the health hazard that the anti-smoking people say it is because other alternatives are at least as probable" (emphasis omitted). The proposed campaign would suggest two such possible alternatives: (1) the constitutional hypothesis, i.e., smokers differ importantly from nonsmokers in terms of heredity, constitutional makeup, lifestyle, and stress; and (2) the multi-factorial hypothesis, i.e., other factors such as air pollution, viruses, food additives, and occupational hazards contribute to diseases for which smoking is considered a cause. TIMN0077551-7554 at 7551-7553 (US 63585); 87657703-7706 (US 21098), (US 79218); Brandt TT, 125:2-127:10; Panzer PD, Small v. Lorillard, 10/22/97, 206:16-207:20; Panzer PD, Iron

116

Workers v. Philip Morris, 12/18/98, 18:22-21:12; USX6390001-0400 (US 89555) (TI Response to Request for Admission Nos. 242, 243).

  1. In order to issue public statements regarding smoking and health, the Tobacco Institute contracted with numerous scientists to conduct research on related issues. Such consultants included Salvatore DiNardi, Gio Gori, Larry Holcomb, Alan Katzentein, Peter Lee, Maurice LeVois, Mark Reasor, Sorell Schwartz, Murray Senkus, David Weeks, Lawrence Wexler, Philip Witorsch, and Ray Witorsch. WAX001 1075-1127 at 1084 (US 64758) (TI Response to Interrogatory No. 8).

  2. During the twenty-one years that Anne Duffin, and the twenty-two years that Walker Merryman, worked for the Tobacco Institute's Public Affairs Division, they prepared many of the Tobacco Institute publications that disputed the existence of any link between smoking and disease; that nicotine was addictive; that cigarette companies marketed to youth; and that Environmental Tobacco Smoke ("ETS") posed a health risk. Titles of such publications include, but are not limited to: Cigarette Smoking and Heart Disease; Cigarette Smoking and Cancer: A Scientific Perspective: Smoking and Health, The Continuing Controversy 1964-1979; On Tobacco:21 The terms "charcoal" or "activated carbon" were often used interchangeably during the trial to describe these filters. See, e.g., Townsend TT, 3/8/05, 14675:25-14676:16. For the sake of simplicity, the Court uses the term "charcoal" to refer to filters containing activated carbon material. -670- Questions and Answers; The Cigarette Controversy, Eight Questions and Answers; About Tobacco Smoking: Smoking and Women; and Vital Statistics -- How Accurate Are They? Duffin PD, Munn v. Philip Morris, 1/7/87, 64:22-65:6, 95:11-97:1, 100:10-102:8, 102:14-103:1, 113:8-21, 114:1-15, 20-24, 121:1-122:24, 123:3-15, 126:3-127:19, 133:21-135:12, 136:15-19, 139:5-140:3, 141:2-10; Duffin PD, Cipollone v. Liggett, 1/23/86, 63:10-64:16; Merryman PD, Minnesota v. Philip Morris, 7/16/97, 317:13-22; 519838352-8517 (US 87707); 519838518-8621 (US 87708); 519838622-8674 (US 87709); TI01071639 (US 62099); 2501112047-2098 (US 20561); 2025431644-1748 (US 20417); TIMN0121541-1558 (US 65632); TIMN0055304-5330 (US 62816); TIOK0027221-7226 (US

117

77109); 1005152849-2896 (US 20226); TIMN300233-0257 (US 65670); TIMN0121622-1646 (US

  1. Over the years, the Tobacco Institute attempted to discredit many of the Surgeon General's Reports through its public statements, press conferences and other publications. Merryman PD, Kueper v. R.J. Reynolds, 6/26/92, 19:12-21:2; Kornegay PD, Cipollone v. Liggett, 12/6/94, 683:4-687:6; Duffin PD, Munn, 1/7/87, 100:10-102:8, 102:14-103:1, 111:10-112:9, 117:6- 25; TIMN0125189 (US 67277); TLT0390022-0024 (US 76770). For example, a "personal and confidential" Lorillard memorandum dated January 8, 1979 from Curtis H. Judge to J. Robert Ave and Arthur J. Stevens, all high corporate officials of Defendants, related a January 5, 1979 conversation that Judge had with Alexander Spears of Lorillard and another conversation with Bill Kloepfer of the Tobacco Institute:

Dr. Spears surmises that this carbon monoxide information may be the new "bombshell" part of the Surgeon General's report and the part of the report which is new and likely to attract the media. At 4:30 on Friday afternoon I talked with Bill Kloepfer at the Tobacco Institute and he had just learned of this information a few hours ago (about the same time we did) on what he described as an "intercept." He agrees with our conclusions as to how it will be used in the Surgeon General's report and the Institute will work on counteracting it. I promised that we would get the information to him should we receive it before he does.

85158126-8127 at 8126-8127 (US 56009).

  1. The Enterprise's concern about the substance of the 1983 Surgeon General's Report was a constant theme throughout the Tobacco Institute's documents for months before the report was ever published. As early as July 1, 1982, "the Scientific Affairs Division was in the process of devising strategies to counter the 1983 Surgeon General's Report." TI0396-1863-1866 at 1863 (US 62157). Before the Surgeon General's Report was even made public,
118

Sam Chilcote . . . asked that [the Tobacco Institute] take certain steps to blunt the impact of the 1983 Surgeon General's report on the ground that, as in the past, it will lack objectivity. We expect the subject to be smoking and heart diseases.

Specifically, the plans directed the Scientific Division

to prepare a relatively brief logical paper covering selected areas of inadequate knowledge and contradictions in the case for smoking as a cause of or risk factor in heart diseases.

Shook, Hardy will provide clearance of the paper and of its final format which will be developed by the Public Relations Division. At the same time the PR staff and PR counsel will prepare a list of media people who may be expected to cover the Surgeon General's Report.

The following directive was issued by Kloepfer: "When the Surgeon General's Report is issued, the PR staff will stick to the TI position rather than commenting directly on the report." TI03961860- 1861 (US 62156).

  1. A document dated October 18, 1982, titled "Memorandum for the Record -- Subject: Planning TI's Response or Planning to Meet the 1983 Surgeon General's Report" detailed the entire chronology of this Tobacco Institute effort. TI03961863-1866 at 1863 (US 62157).

  2. At the December 9, 1982 Tobacco Institute Board of Directors meeting, Tobacco Institute President Samuel D. Chilcote, Jr., discussed the Institute's approach to the upcoming 1983 Surgeon General's Report. The Tobacco Institute's plans included personally passing out summaries of its document on "Smoking and Cardiovascular Disease" to several dozen reporters; having George Schafer, Tobacco Institute Medical Director, on hand to answer the reporters' questions and lend credibility; holding its "own press conference a day or so before the Surgeon General's press conference challenging the contention that smoking causes cardiovascular disease," with Shook, Hardy & Bacon providing assistance; and attempting to "encourage a non-tobacco state congressman to launch an investigation into MRFIT [Multiple Risk Factor Intervention Trials] shortly before the Surgeon General's conference," alleging that it was a waste of 115 million tax payers' dollars, "thereby putting the Surgeon General on the defensive." TIMN0017276-7303 (US 86118).

119

  1. A January 11, 1983 memorandum detailing the monthly overview of the Tobacco Institute's Scientific Affairs Division listed as its first "key" item the "[p]reparation and refinement of Institute's response to the 1983 Surgeon General's forthcoming report on heart disease." TI03962431-2432 at 2431 (US 62160).

  2. Similarly, the Tobacco Institute was very active in planning a response regarding the release of the 1987 Surgeon General's Report which discussed the addictive nature of smoking. Dawson WD, 21:21-22:7. Suggested strategies for the Tobacco Institute response and the public's potential reaction were carefully considered. TIMN34639-9639 (US 62752); TIMN349632-9633 (US 62751). Samuel Chilcote wrote informational memoranda about the Surgeon General's Reports for distribution to the Tobacco Institute Executive Committee. See, e.g., TINY 0009385-9387 (US 58830) (1992 Surgeon General's Report). Brennan Dawson, Vice President of Public Relations for the Tobacco Institute, also made a presentation at a 1988 Tobacco Institute Communications Committee meeting, about her plans to distribute editorials favorable to the industry about the 1987 Surgeon General's Reports to editorial writers. Dawson also invited additional distribution suggestions from Communications Committee members. Dawson WD, 21:21-22:7, see Section III(D)(4)(c), infra for detailed discussion of the Tobacco Institute Communications Committee.

120
  1. In anticipation of the 1989 Surgeon General's Report, the Tobacco Institute launched its "Enough is Enough" campaign which included

national advertising efforts in 19 newspapers, a new public opinion poll, a comprehensive tobacco issues brief, and a video with smokers and nonsmokers expressing their opinions on the anti-smoking movement.

TI09911581-1615 at 1601 (US 62252); 507635309-5348 (US 66484); Dawson WD, 66:14-69:22. The Tobacco Institute launched a major media campaign, distributing materials and information to some 2,500 reporters, conducting a private briefing for the Washington, D.C. press corps, and distributing both television and radio satellite press releases, all with the aim of publicly discrediting the forthcoming Surgeon General's Report. Dawson WD, 66:14-69:22; TI0991 1581-1615 at 1601 (US 62252). Tobacco Institute documents indicate that the Tobacco Institute believed its efforts were worthwhile since the first question the Surgeon General received at his press conference releasing his 1989 Report was generated by the "Enough is Enough" campaign. TI0991 1581-1615 at 1601 (US 62252); Dawson WD, 66:14-69:22.

  1. Attorneys representing Defendants again played a major role in these efforts to discredit the Surgeon General's Reports and attack other scientific research linking smoking and disease. They meticulously edited and rewrote drafts of Tobacco Institute advertisements, articles, and public statements. Lawyers regularly recommended ideas for articles and provided materials to the Tobacco Institute for consideration. 1005134430-4432 (US 36107); 508089329-9329 (US 86089).

  2. In a July 6, 1977 memorandum to William Kloepfer of the Tobacco Institute, attorney Donald Hoel of Shook, Hardy & Bacon significantly changed the draft of an article titled "Why the

121

Case Against Smoking is Not Closed" and recommended a "major rewriting effort." Hoel also expressed dissatisfaction that attorneys had not previously had the chance to review the article. He wrote that

it would be beneficial and time-saving if the content of such material as the proposed article could be first "cleared" with the appropriate persons at the Tobacco Institute before an "approved" draft is sent here for legal clearance.

Hoel went on to recommend that the lawyers be given advance notice of such articles so they could "make suggestions and provide materials for consideration." TIMN262629-2629 (US 62734).

  1. The Tobacco Institute also worked with its public relations counsel and its member companies to anonymously disseminate deceptive and misleading public statements, such as the True magazine article, to promote the sale of cigarettes. CTRMN 015575-15593 (US 79902); Zahn PD, Cipollone v. Liggett, 12/18/86, 349:1-4, 20-23, 351:4-14, 357:22-25, 361:3-8, 17-22. Joseph Fields, a public relations agent for B&W, arranged for a reporter named Stanley Frank to write a smoking and health article, titled "To Smoke or Not to Smoke - That Is Still The Question," which appeared in the January 1968 issue of True magazine. In the article, Frank stated that he had reviewed the evidence and found it contradictory and inconclusive; he concluded that the hazards of cigarette smoking were not so real as the public had been led to believe. TIMN462375-2380 (US 21660). Frank did not disclose that he had been paid $500 by the Defendants for his time and expenses in writing the article and had been guaranteed another $1250 in the event that it was not published; that tobacco industry representatives including Ed Jacob of Jacob & Medinger, attorneys for TIRC, had reviewed the article prior to publication; or that he worked for Hill & Knowlton. 690012994-2993 (US 54322); Zahn PD, Cipollone, 12/18/86, 349:1-4, 20-23, 351:4-14, 357:22-25, 361:3-8, 17-22.
122

  1. Furthermore, one of the Tobacco Institute's public relations agencies, The Tiderock Corp., had arranged to run a one-half-page advertisement promoting the True article titled "Are Cigarettes Really Harmful to Your Health?" The advertisement ran in the top seventy-two markets in the United States at an estimated cost of $69,000 paid for by Defendants Philip Morris, Reynolds, B&W, American, and Lorillard. The public did not become aware of these facts until the information was revealed in a series of investigations by the Wall Street Journal, Consumer Reports, and Senator Warren Magnuson. Zahn PD, Cipollone, 12/18/86, 349:1-4, 20-23, 351:4-14, 357:22- 25, 361:3-8, 17-22; TIMN462375-2380 (US 21660); TIMN0123336-3336 (US 21628).

  2. In addition to its press releases and publications, the Tobacco Institute regularly published various newsletters to further publicize its viewpoint on behalf of the Enterprise. TIMN339121-9128 at 9121 (US 86127); TINY 0009385-9387 (US 62964); 947089976-9979 (US 32332); TI16300337-0345 (JE 062448). In May 1976, the Tobacco Institute published its first issue of its most widely distributed newsletter, The Tobacco Observer. The public purpose of the newsletter, as stated in the first issue, was to "enable 'thousands' whose livelihoods are associated with tobacco 'to be well informed about the problems facing tobacco.'" The Tobacco Observer was published bi-monthly from 1976 until December 1988, under the supervision of the Tobacco Institute's Special Projects. 690018786-8786 (US 86119); TIOK0015372-5378 at 5373 (US 86126); TIMN366674-6895 at 6864 (US 86120).

  3. The Tobacco Institute circulated The Tobacco Observer free of charge to company employees, broadcasters, newspapers, and individuals. At the early stages of publication, the Tobacco Institute requested and received lists of names and addresses of potential subscribers from the tobacco companies. In 1978, the Tobacco Institute calculated circulation to have reached 80,000 and by 1988 circulation had almost doubled to 145,000. Most subscriptions, however, were unsolicited. According to a June 1, 1987 memorandum from Anne Duffin to Peter Sparber, "TTO [The Tobacco Observer] subscribers, some dating back 11 years, have never been asked if they want copies. Most were added to the subscription list by Institute staff through personal contact or tobacco group rosters[.]" 670059500-9506 at 9503 (US 86121); 690019767-9767 (US 86122); 680549177-9182 at 9179 (US 86123); TIOK0015372-5378 at 5372 (US 86126).

123
  1. Articles in The Tobacco Observer perpetuated the Enterprise's denials of causation and harm from smoking. One headline announced, "Smoke not harmful to average non-smoker" (October 1978). In the May 1976 issue, one headline read "No Simple Answers; Research Disputes UPI;" this article followed another that stated, "no cause and effect relationship between cigarette smoking and pulmonary emphysema has been established." In a June 1, 1987 memorandum, Anne Duffin wrote candidly about The Tobacco Observer:

Historically TTO [The Tobacco Observer] has related good news only, presenting the bad only in its most optimistic context . . . TTO's purpose was to inform, to cast favorable light upon tobacco's many controversies.

03048388-8399 at 8388 (US 86124); TIMN0127465-7475 at 7467 (US 86125); TIOK0015372-5378 at 5373 (US 86126).