Reports that Matter

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

TOBACCO PRODUCTS ARE ADDICTIVE AND POSE

Section 64 of 129

TOBACCO PRODUCTS ARE ADDICTIVE AND POSE

SERIOUS HEALTH HAZARDS"; and

  • deleted Star's statement explaining that "Because many smokers smoke to get nicotine, they tend to smoke more intensely when smoking 'lights' or 'ultra lights,' and that because of such nicotine-driven compensation 'lights' and 'ultra-lights' are NOT NOW viewed by health scientists as reliably less hazardous." Instead, B&W stated in minuscule type only that smokers "can increase or decrease the amount of smoke that they take in depending on how they smoke their cigarettes" and thus actual delivery may differ from the FTC test measurements.
761

Compare 524942388-2389 (no bates) (US 52963) with 524942390-2391 (US 88038*) with TLT0960001-0002 (US 87216) (onsert to B&W Advance). See also Wessel 30(b)(6) PD, United States v. Philip Morris, 19:3-22:23; Blackie TT, 10/26/04, 3897:15-3900:15.

  1. Before test marketing of the refined Advance product, Brown & Williamson provided copies of its onsert to the National Association of Attorneys General ("NAAG"), which enforces the Master Settlement Agreement ("MSA") reached between Defendants and the states. 282402357- 2454 (JD 012690). In both Arizona and Indiana, where Brown & Williamson conducted extensive test marketing of Advance,

Brown & Williamson personnel went to visit not only the attorney general but also other state officials and local officials, advised them of the [test market] plans, gave them examples of the advertising materials and the cigarettes themselves so that they could be informed about what B&W was doing, and given an opportunity to comment and ask questions.

Mellen, United States Dep., 7/22/04, at 314:19-315:23. Neither NAAG, nor its individual member Attorney Generals, have complained about Brown & Williamson's onsert for, or marketing of, Advance. Id.

d. Lorillard's Zero Tar and PMO Projects 1997. As discussed above, ciliastasis is a condition in which the lung's cilia, the hair-like

structures lining the lung passageways that are responsible for removing foreign matter such as particulate matter from cigarette smoke, become immobilized, or static, and cease their cleansing function. Lorillard conducted a significant amount of research relating to one compound in particular, phenol methyl oxadiazole ("PMO"), as a possible solution to the problem of ciliastasis.

762

See, e.g., (no bates) (JD 020259) (reporting a range of 1969-1970 PMO biological studies);

  1. Lorillard could not demonstrate by consistent experimental proof that PMO resulted in a health benefit. Indeed, a number of the tests, including a long term chronic inhalation study in dogs that was done by the Tobacco Working Group incorporating some of Lorillard's PMO research, did not show that the addition of PMO to tobacco provided any prophylactic effect. (no bates) (JD 020261 at 1); and 504210547-0915 at 0547-0550 (JD 061133). Lorillard never marketed a commercial cigarette containing PMO. Coggins, United States Dep., 06/27/02, at 33:2-21, 148:21- 24.

e. Liggett's Project XA 1999. By the early 1970s, Liggett had developed a new cigarette product, known as "XA,"

that internal research led it to conclude was less hazardous to smokers. Liggett saw XA as a way to increase its market share, which had fallen to around 5%, by attracting smokers who desired a cigarette that was potentially less harmful than the cigarette they had been smoking. Ross PD, Washington v. American Tobacco, 10/22/98, 97:1-98:25; Harris WD, 174:13-175:2.

  1. The XA product utilized palladium as a catalyst to alter the chemical reactions occurring in a burning cigarette, thus modifying the composition of cigarette smoke. LATH00312201-2202 (US 22149); Albino TT, 3/29/05, 17099:11-19, 17106:23-17107:1. By 1972, researchers at Liggett had determined that the smoke from XA cigarettes contained lower concentrations of polycyclic aromatic hydrocarbons ("PAHs"), some of the most harmful constituents in cigarette smoke. 681879254-9715 at 9485 (US 21020); LATH00312201-2202 (US 22149). By 1976, Liggett researchers had concluded, using the standard mouseskin-painting model, that the smoke condensate from XA cigarettes reduced overall tumors in mice by 85-88%, and cancerous tumors by 77-100%. Harris WD, 174:13-175:2; LG 2013584–3587 (US 21208); LG166090–6102 at 6101 (US 21195) (Figure 2); Meyer PT, Washington v. American Tobacco, 11/10/98, 5441:14-5443:2; Mold PD, Cipollone v. Liggett, 11/25/85, 100:2-105:15. Liggett also performed animal inhalation studies and chemical analyses that showed that the addition of palladium did not adversely affect the test animals or create threatening byproducts. Id. at 104:17- 105:15 (skin painting and inhalation studies "demonstrated that we had, in fact, eliminated the animal carcinogenicity"); 681879254-9715 at 9487 (US 21020).
763

  1. Liggett spent twelve years and significant amounts of money to produce XA. Despite that investment, Liggett chose, for a variety of reasons, not to market it. Albino TT, 3/29/05, 17103:9-11. First, Liggett concluded that the XA cigarette lacked consumer acceptability because it had a metallic taste, like gunpowder, and was not smokeable. Bereman, United States Dep., 4/23/02, at 67:2-13. Second, Liggett also believed that the FTC Guidelines would not permit it to make health claims about XA. Mold, Cipollone Dep., 12/13/85, at 283:22-284:08 ("we had been told that we couldn't say about the health benefits of this directly because The Federal Trade Commission would object"); LG2013239-3253 (US 34095); (no bates) (JD 010547 at 7-11) (discussed with Harris TT, 10/18/04, 2810:20-2816:15); Ross, Washington Dep., 10/22/98, 112:21- 114:21.

  2. Third, other Defendants suggested they did not support the marketing of XA. Philip Morris "threatened to do everything in its power to prevent the marketing of the new cigarette." 681879254-9715 at 9295 (US 21020). According to Liggett President Kinsley V. Dey, that pressure from Philip Morris not to market XA in the United States contributed to Liggett's decision. Mold

764

PD, Cipollone v. Liggett, 11/26/85, 191:17-193:18. Ernest Pepples, B&W's representative on the Tobacco Institute's Committee of Counsel, threatened Liggett's "very existence" if it marketed the XA cigarette, including freezing Liggett out of joint defense agreements, and perhaps excluding Liggett from the Tobacco Institute as well, because selling XA would be an admission against the interest of all Cigarette Company Defendants. Meyer PT, Washington v. American Tobacco, 11/10/98, 5511:4-5518:13.

  1. XA's technology remained dormant at Liggett for nearly two decades. Shortly after creation of Liggett's affiliate Vector Tobacco in the late 1990, Drs. Bereman and Albino, Liggett- turned-Vector scientists, developed the Omni cigarette based on the XA technology and managed to market the product.