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Decades of deception: secrets of lead, asbestos, and tobacco.

Deadly industry conspiracies kept the truth about the health hazards of lead, asbestos, and tobacco from the public. The story of their undoing is a lesson in trial strategy.

A seven-year-old boy struggles in special education classes, his mental ability diminished by neurological injuries caused by lead paint poisoning. Although the boy has endured excruciatingly painful chelation therapy, his injuries are permanent ones.

A 47-year-old man learns that he has contracted a painful and fatal lung disease --mesothelioma--after years of exposure to asbestos in the power plant where he works. He worries about how his wife and three children will survive after he dies.

A 62-year-old woman lies hooked to an oxygen tank in her hospital bed. Every breath she takes is painful. She gasps for air, slowly suffocating from the emphysema she developed after years of smoking cigarettes.

The injured party in each of these cases is a victim of corporate misconduct. Although each person has been poisoned by a different product, the industries that produced and marketed those products acted in disturbingly similar ways to conceal their dangers.

For decades, leaders in each of these industries wove a web of secrecy, deception, and propaganda, all for the sake of profits. The conspiracy of silence and deceit was necessary to camouflage the hazards associated with exposure to these products--hazards that industry leaders knew about for years.

Lead is a naturally occurring element (Pb), mined and refined into its elemental form, then converted into other chemical forms. One of these is white lead (basic lead carbonate), a paint pigment desired for its color stability.(1) People have been suffering lead poisoning--sometimes called saturnism, plumbism, or colic--for thousands of years. Scientific documentation of lead's dangers appears as early as 1897 when a physician in Queensland, Australia, published accounts of childhood lead poisoning there.(2)

Asbestos is the name for a group of naturally occurring silicate minerals that are mined and separated into fibers. The fibers are strong, durable, and resistant to heat and fire. Asbestos has been used since prehistoric times, and its toxic effects on humans have been recognized for at least 2,000 years.(3)

Tobacco is derived from the dried leaves of nicotiana tabacum, an annual plant native to tropical America and cultivated in several parts of the world. Native Americans introduced tobacco to European settlers, and it eventually became an important cash crop for the mid-Atlantic region of the United States. By the 19th century, tobacco was known to contain "a very powerful and poisonous fluid alkaloid named Nicotine."(4)

As America industrialized, lead, asbestos, and tobacco were commonly used by Americans, thanks in part to aggressive marketing. White lead was synonymous with the best paint one could buy. The word "asbestos" on product descriptions connoted strength and durability. And a person who smoked cigarettes was considered sexy, strong, and spirited.

Closing ranks

As knowledge of the hazards of lead, asbestos, and tobacco grew, the threat of limiting or regulating use of the products intensified. In the early 1920s, the lead industry was subjected to much criticism regarding lead poisoning. By then, white lead paint had already been banned in other countries. The lead paint market had been on a steady decline, although, in 1930, business still generated more than $30 million in revenue annually.(5)

In 1928, executives from the lead industry met in New York City to conduct the first meeting of the Lead Industries Association (LIA).(6) Minutes from the association's annual meeting a few years later reveal that members understood the importance of solidarity--
 Moreover, all the lead industries are closely related and, as a unit in the
 Lead Industries Association, possess the important advantage of colidarity
 [sic] in matters of public relations or legislation affecting their
 interests, to make their views effective. In this connection it is
 important to remember that the lead industries must have the good-will of
 the public for it is more often subjected to unfavorable comment than other
 metal industries.... Invariably the answer is that, if left to individual
 initiative many of our important problems would receive little or no
 attention, or, if they did, the cost of attending to them would be either
 prohibitive, or an unfair burden on any single factor in the industry.(7)


Complicity extended beyond the industry's borders. Members of the American Zinc Institute (AZI) produced products that competed with those made by members of the Lead Industries Association. However, in the 1940s, these groups recognized that public statements making "comparisons between the toxicity of lead and zinc products" were detrimental to the sales of both.(8)

The LIA and AZI agreed to a
 statement of policy which declared that, while the American Zinc Institute
 and the Lead Industries Association should feel free to defend any unfair
 attack upon zinc and lead and their products, any defense measures used on
 behalf of one product which directly or indirectly, stated or implied,
 involve an attack upon another, should be declared inimical to the
 interests of the combined industries.(9)


The story of asbestos is eerily similar. In the early 1900s, reports of asbestosis began to appear in published literature. In the early 1930s, asbestos workers who had the disease began filing claims against Johns-Manville and Raybestos-Manhattan, the nation's largest asbestos manufacturers.

In 1936, officials from asbestos manufacturing companies met in New York City to sign a secret agreement to finance animal experiments at the Trudeau Foundation's Saranac Laboratory at Saranac Lake, New York. The intent was to gather data that would support a defense to the lawsuits. The asbestos industry recognized that "no one company acting independently could adequately or effectively represent an entire industry in dealing with the press and with government officials."(10)

The conduct of tobacco company executives followed suit. In the early 1950s, studies documented the scientific link between smoking and disease, and the consumption rates of cigarettes sharply declined for the first time since the Depression. Industry leaders hired the public relations firm Hill & Knowlton to develop a strategy to counter the health scare. It was understood that this was "the most challenging problem that ever faced a great industry, one with annual sales of almost $5 billion at retail."(11)

Presidents of the leading tobacco companies met with Hill & Knowlton representatives in New York City on December 15, 1953, to form the Tobacco Industry Research Council, now known as the Council for Tobacco Research. Documents reveal that, contrary to the industry's public assertions that public health was its priority, the council's purpose was to "sponsor a public relations campaign which is ... entirely `pro-cigarettes.'"(12) Like the Lead Industries Association, the council attacked studies showing that its members' products caused disease.

Another result of the 1953 meeting was an industry agreement not to compete on the basis of health, something the lead industry had also done.(13) The tobacco companies realized that"their own advertising and competitive practices [were] a principal factor in creating a health problem" since the companies had competed on the basis of explicit health claims.(14) Industry leaders, who knew that a formal agreement not to compete would violate federal antitrust laws, shared an understanding--sometimes called the "Gentlemen's Agreement"--that no cigarette manufacturer would seek a competitive advantage by making explicit health claims or compete to produce safer cigarettes.

In January 1958, the tobacco companies formed the Tobacco Institute to further create doubt and controversy about the health risks of smoking. A few years later, one tobacco insider dubbed the institute's actions the "chronology of confusion."(15)

Deception and disinformation

All three industries, often through research they funded, continually received information condemning their products. Instead of publishing this information, industry leaders organized public relations campaigns to keep their products in a favorable light and discredit those who pointed out the products' negative sides.

In 1937, the directors of the Lead Industries Association considered issuing a leaflet on lead poisoning. But that idea was rejected in favor of a strategy of undermining and discrediting each individual claim.(16) Nevertheless, childhood lead poisoning "continued to be a major time-consuming headache" for the lead industry--inhibiting its ability to market white lead pigment in paint.(17)

But industry leaders didn't give up. In 1952, despite reports of childhood lead poisonings associated with paint, the LIA promoted white lead, saying it "adds more desirable qualities to paint than other white pigment and has practically no undesirable qualities to nullify its advantages."(18)

Similarly, in 1935, Sumner Simpson, the president of the asbestos manufacturer Raybestos-Manhattan, wrote to Vandiver Brown, head of Johns-Manville's legal department, telling him, "I think the less said about asbestos the better off we are," to which Brown replied, "I quite agree with you that our interests are best served by having asbestosis receive the minimum of publicity."(19)

The 1936 Saranac findings originally made reference to cancer, but these were soon deleted. The revised report, published in 1951, also neglected to include criticisms of the asbestos dust threshold limit value (TLV)--a U.S. Labor Department standard of permissible levels of asbestos inhalation--and animal studies linking asbestos with cancer. In 1952, a Saranac symposium that included discussions of asbestosis and cancer in product users was never published.(20)

In 1947, members of the Asbestos Textile Institute (ATI), an organization of manufacturers of asbestos textile products, sponsored a study of textile factories by the Industrial Hygiene Foundation. The study found asbestosis in workers, made recommendations about medical exams, and recommended re-evaluation of the industry's threshold limit value for asbestos. These findings were never circulated outside the ATI. In the mid-1950s, the institute rejected funding for cancer studies, reasoning that "such an investigation would stir up a hornet's nest and put the whole industry under suspicion."(21)

The coverup continued. In 1950, the Quebec Asbestos Mining Association, whose members included Canadian asbestos mining companies, contracted with Saranac to determine whether asbestos caused cancer.(22) A 1952 report, which was never published, showed increased cancer in mice and suggested further study.(23) In 1957, the Canadian association contracted with the Industrial Hygiene Foundation of America to study asbestos and cancer. The resulting report concluded that those with asbestosis had an increased occurrence of lung cancer.(24) Nevertheless, attorneys and doctors hired by the Canadian association recommended these conclusions be omitted from the final report. The 1958 published report concluded that asbestos exposure did not lead to an increased statistical occurrence of lung cancer.(25)

Ten years later, asbestos industry members organized the Asbestos Building Products Manufacturers and Environmental Health Council. At its first meeting at Johns-Manville offices in New York, members discussed publishing a health safety booklet. One industry member, National Gypsum, strongly opposed publication because "the booklet creates fear in the minds of buyers, users, and workers without justification. These fears would be damaging to the entire industry."(26)

As the condemnation of asbestos intensified in the 1960s, the Canadian asbestos association planned to combat the continuing "extremely bad press concerning the question of asbestos and health." To counter the adverse publicity, the association's public relations committee sought to "produce some rebuttal" and provide "some counter propaganda."(27)

But the truth would come out. In the late 1970s, the U.S. surgeon general promised to make workers aware that asbestos "is one of the most dangerous and insidious substances in the workplace."(28)

The story of the tobacco industry's campaign of deceit is now well known. For years the industry sponsored a publication entitled Tobacco and Health Research, which was intended to cast doubt on the cause and effect theory of smoking and disease. The document was widely circulated to doctors, scientists, and regulators.

The Tobacco Institute's campaign worked to shift the focus from disease caused by smoking to issues of unnecessary government regulation and taxation, freedom of choice, accommodation and courtesy among smokers and nonsmokers, and the history and economics of tobacco in America. When health issues remained central, the institute called antismoking activists "health nuts," criticized reports issued by the U.S. surgeon general linking smoking to increased risk of disease, and tried to shift blame for smoking-related health problems to other causes.

The industry's master plan is described in an internal 1972 memo by the former vice president of public relations for the Tobacco Institute:
 For nearly 20 years, this industry has employed a single strategy to defend
 itself on three major fronts--litigation, politics, and public opinion.
 While the strategy was brilliantly conceived and executed over the years,
 helping us win important battles, it is only fair to say that it is
 not--nor was it intended to be--a vehicle for victory. On the contrary, it
 has always been a holding strategy consisting of creating doubt about the
 health charge without actually denying it.(29)


Years later, an editorial in the Journal of the American Medical Association stingingly said, "IT]he evidence is unequivocal--the U.S. public has been duped by the tobacco industry. No right-thinking individual can ignore the evidence. We should all be outraged, and we should force the removal of this scourge from our nation and by so doing set an example for the world."(30)

Former Surgeon General C. Everett Koop recently called the tobacco industry "the sleaziest, slimiest, most devious industry in the world," whose members "also are the smartest and the richest." That, he noted, is "a bad combination.(31)

Regulation wars

Leaders in all three industries believed that government regulations requiring warnings on products and limiting their use hurt sales. Consequently, regulations were viewed as a threat to the industries' existence.

Sophisticated lobbying techniques were employed to keep the industries alive. Their professional organizations played a vital role in keeping deadly products on the market. For example, a primary objective of the Lead Industries Association was
 preventing undue discrimination against lead. Childhood lead poisoning
 continues to be our major "headache" and source of adverse publicity.
 Threats of poison labeling regulations for lead paints have come from
 health authorities in New York, Chicago, and some other cities. We are
 working with the Paint Association to combat these moves with the outcome
 promising, but still in doubt.(32)


The lead industry's efforts focused on fighting adverse publicity and potential regulation. The LIA secretary-treasurer's annual report in 1959 said,
 The toxicity of lead poses a problem that other nonferrous industries
 generally do not have to face. Lead poisoning, or the threat of it, hurts
 our business in several different ways. While it is difficult to count
 exactly in dollars and cents, it is taking money out of your pockets every
 day.

 In the first place, it means thousands of items of unfavorable publicity
 every year. This is particularly true since most cases of lead poisoning
 today are in children, and anything sad that happens to a child is material
 for newspaper editors and is gobbled up by the public. It makes no
 difference that it is essentially a problem of slums, a public welfare
 problem. Just the same the publicity hits us where it hurts.

 Secondly, it means that we are often subjected to unnecessarily onerous
 regulations, either in the use of our product or in its labeling. This may
 mean either an added expense in labeling or in control equipment in your or
 your customers' plants. It may even mean that your product won't be used at
 all because your potential customer doesn't want the problems that the use
 of lead may involve.

 What are we doing about all this? We are working closely with
 governmental health authorities, childhood poisoning centers, the medical
 profession, and organizations like the American Standards Association, the
 Paint, Varnish and Lacquer Association, and the Manufacturing Chemists
 Association to prevent enactment of unfair and onerous legislation and
 regulations. In fact we were largely responsible for the increase of
 one-third in the maximum permissible concentration of lead dust and fumes
 that became effective a couple of years ago. We make every effort to
 convince industry of the safety of using lead if properly handled. We
 attempt to correct unfavorable publicity.(33)


In 1972, eight companies met in New York City to form the Asbestos Information Association of North America (AIA) to fight impending federal regulations. As part of this campaign, the association's executive secretary, Matthew Swetonic, later told members that "the words `cancer' or `danger' should not be used on labels.(34)

In a 1973 speech before the Asbestos Textile Institute, Swetonic outlined the history of the association's efforts to fight dissemination of information on asbestos hazards to the public and to prevent regulation. "Fortunately--and properly--the association has had the wisdom to alter its original limited concept of its proper functions and now endeavors to assume whatever activities and responsibilities it deems necessary to protect the interests of the asbestos manufacturing industry in the United States vis-a-vis asbestos--health," Swetonic said.(35)

To avoid regulation by the Food and Drug Administration (FDA), tobacco company representatives have for decades denied that tobacco is addictive. Just a few years ago, top company executives stood before Congress and swore that they believed nicotine was not addictive.

Industry leaders dared not tell the public that they knew they were selling a "nicotine delivery system." They understood addiction played a critical role in products liability litigation and feared the effect such a declaration would have on juries. Even more, they feared it would lead to FDA regulation, which would hurt sales.(36) They understood that FDA jurisdiction "could be tantamount to a marketing preclusion."(37)

Corporate leaders also feared that regulations would affect sales to young people. An internal Philip Morris document noted that
 raising the legal minimum age for cigarette purchases to 21 could gut our
 key young adult market (17-20) where we sell about 25 billion cigarettes
 and enjoy a 70 percent market share.... Moreover, 66 percent of all smokers
 begin smoking at or before age 18, 80 percent begin before age 21. Finally,
 banning vending machines would affect 8 percent of our market (5.4 percent
 of total industry market)especially the young adult segment who so often
 purchase by the pack.(38)


A 1994 editorial by former U.S. Surgeon General Joseph Califano Jr. described the impact of the tobacco industry's actions on public policy makers. He said, "Thus, tobacco companies use their money to distort public policy in two ways: to mislead the American public on the dangers of tobacco, and to buy legislative votes to block efforts to educate the public about the dangers of tobacco products, regulate their availability, and keep them from children by raising taxes."(39)

The united fronts organized by leaders in these three industries enabled them to accomplish what no company could have done alone. The impact of these unholy industry unions will be felt well into the next century.

Today, lead poisoning is one of the most common pediatric health problems in the United States. Ingestion of lead has its most serious effects in children under the age of six, whose developing brains are most susceptible to lead's toxic properties.

Asbestos-related diseases continue to plague asbestos workers. An estimated 259,000 workers have died from asbestos-related diseases, and another 166,000 are expected to die in the next 30 years.(40)

Cigarette smoking kills about 400,000 people each year in the United States.(41) Every day, about 3,000 teens start smoking.(42) Although it appears that more adults are quitting, officials warn that the rate of smoking may be increasing due to a rise in teen smoking.(43)

The challenge for the plaintiff lawyer is to show how these industries' propaganda tools and concerted actions ultimately kept three deadly products on the market. By putting the industries on trial, plaintiff lawyers can tell their stories of conspiracy and deception.

And these industries are not alone. Others use similar propaganda and secrecy tactics to keep lethal products on the market. Comparing public and private statements of industry representatives can reveal not only that the industries knew their products were dangerous, but that they kept this knowledge from consumers, lawmakers, and regulators.

The process of exposing an industry's deceptive tactics may be slow, but--as the examples of the lead, asbestos, and tobacco industries show--dedicated and persistent research can yield far-reaching rewards.

Notes

(1.) JOHN PESCE & AMADEO J. PESCE, THE LEAD PAINT PRIMER 21 (2d. ed. 1995).

(2.) A. Jefferis Turner, Lead Poisoning Among Queensland Children, 16 AUSTRALASIAN MED. GAZETTE 475 (1897).

(3.) First-century historians and authors Strabo and Pliny the Elder both observed adverse biological effects of asbestos in the lungs of slaves who wove asbestos into cloth. See Douglas H.K. Lee & Irving J. Selikoff, Historical Background to the Asbestos Problem, 18 ENVT'L RES. 300, 303 (1979).

(4.) SAMUEL O.L. POTTER, HANDBOOK OF MATERIA MEDICA, PHARMACY, AND THERAPEUTICS 407 (5th ed. 1893).

(5.) Lead Industries Association, Minutes of the Meeting of the Board of Directors (Oct. 1, 1930) (on file with authors).

(6.) Lead Industries Association, Minutes of the First Meeting of the Board of Directors (Nov. 14, 1928) (on file with authors).

(7.) Lead Industries Association, Minutes of the Annual Meeting (Apr. 12,1933) (on file with authors).

(8.) Lead Industries Association, Minutes of the Executive Committee Meeting (Apr. 2, 1948) (referencing Letter from E.V. Gent, Secretary, American Zinc Institute, to Robert L. Ziegfeld, Secretary, Lead Industries Association (Dec. 31, 1947)) (on file with authors).

(9.) Id.; see also Lead Industries Association, Minutes of the Board of Directors Meeting (May 21, 1948) (referencing Letter from Robert L. Ziegfeld, Secretary, Lead Industries Association, to E.V. Gent, Secretary, American Zinc Institute (Apr. 9,1948)) (on file with authors).

(10.) Matthew M. Swetonic, Presentation by the Asbestos Information Association/North America to the Asbestos Textile Institute (June 7, 1973) (on file with authors).

(11.) Memorandum from Edwin E Dakin, Research Department, Hill & Knowlton, to Members of the Planning Committee (1953) (on file with authors).

(12.) Memorandum from Bert C. Goss, Member, Tobacco Institute Public Relations Committee, Hill & Knowlton, titled Background Material on the Cigarette Industry Client (Dec. 15, 1953) (on file with authors).

(13.) Id.; Lead Industries Association, Minutes of the Annual Meeting, supra note 7.

(14.) Memorandum from Bert C. Goss, supra note 12.

(15.) Letter from James C. Bowling, Vice President, Philip Morris, Inc., to Carl Thompson, Vice President, Hill & Knowlton (June 14, 1965) (on file with authors).

(16.) Lead Industries Association, Minutes of the Board of Directors Meeting (June 29, 1937) (on file with authors).

(17.) Lead Industries Association, Minutes of the Annual Meeting (Apr. 24-25, 1956) (on file with authors).

(18.) LEAD INDUSTRIES ASSOCIATION, LEAD IN MODERN INDUSTRY 153 (1952).

(19.) Paul Brodeur, The Asbestos Industry on Trial, NEW YORKER, June 17, 1985, at 45, 75. 20. Id.

(21.) Asbestos Textile Institute, Minutes of the Air Hygiene and Manufacturing Committee Meeting (Mar. 7, 1957) (on file with authors).

(22.) Memorandum from J.P. Woodard, Director of Industrial Relations, Johns-Manville Corp., to A.R. Fisher, President, Johns-Manville Corp. (Oct. 20, 1950) (on file with authors); Memorandum from J.P. Woodard to Vandiver Brown, Legal Counsel, Johns-Manville Corp. (Nov. 10,1950) (on file with authors); Memorandum from J.P. Woodard to Arthur J. Vorwald, Director, Saranac Laboratory (Dec. 4,1950) (on file with authors).

(23.) Asbestosis and Pulmonary Cancer First Interim Report to Quebec Asbestos Mining Association (May 7, 1952) (submitted by Arthur J. Vorwald) (on file with authors).

(24.) Daniel C. Braun, An Epidemiological Study of Lung Cancer in Asbestos Miners, Report to the Quebec Asbestos Mining Association: 76 (Sept. 1957) (on file with authors).

(25.) Daniel C. Braun & T. David Truan, An Epidemiological Study of Lung Cancer in Asbestos Miners, 17 ARCHIVES INDUS. HEALTH 634, 651 (1958).

(26.) Letter from Frank H. Zimmerman, Director of Safety, National Gypsum Co., to Clifford L. Sheckler, Manager, Occupational Environmental Control, Johns-Manville Corp. (Apr. 17, 1968) (on file with authors).

(27.) Quebec Asbestos Mining Association, Minutes of the Special Summer Meeting (Aug. 8-11, 1967) (on file with authors).

(28.) Donald J. Billmaier, Presentation of Questions and Answers Concerning Asbestos Before Owens-Corning Plant Employees in Berlin, N.J. (Nov. 28, 1978) (on file with authors).

(29.) Memorandum from Fred Panzer, Vice President of Public Relations, Tobacco Institute, to Horace R. Kornegay, President, Tobacco Institute (May 1, 1972) (on file with authors).

(30.) James S. Todd et al., The Brown and Williamson Documents: Where Do We Go from Here? 274 JAMA 256, 258 (1995).

(31.) Tom Groening, Koop Attacks GOP Lawmakers, Tobacco "Biggest Health Care Problem," BANGOR D. NEWS, Apr. 17, 1999.

(32.) Lead Industries Association, Minutes of the Annual Meeting (Apr. 22,1954) (on file with authors).

(33.) Lead Industries Association, Annual Report of the Secretary-Treasurer for the Year 1959, at 4 (1959) (on file with authors).

(34.) Letter from Matthew M. Swetonic, Executive Secretary, Asbestos Information Association, to Association Members (OSHA Regulations on Asbestos) (June 12, 1972) (on file with authors).

(35.) Swetonic, supra note 10.

(36.) Memorandum from Unknown Authors, Meeting with Dr. Bob DiMarco to Review White Paper on Smoking and Health (Mar. 12, 1983) (on file with authors).

(37.) Memorandum from Mick McGraw, Attorney, Brown and Williamson, to Ray Pritchard, Chairman and Chief Executive Officer, Brown and Williamson (Apr. 24, 1992) (on file with authors).

(38.) Unknown Authors, Notes on Sociopolitical Strategy (Jan. 21, 1986) (on file with authors).

(39.) Joseph A. Califano Jr., Revealing the Link Between Campaign Financing and Deaths Caused by Tobacco, 272 JAMA 1217, 1218 (1994).

(40.) John Bell, Asbestos Companies Try to Eliminate Their Liability, TRIAL, May 1999, at 10.

(41.) Centers for Disease Control & Prevention, Cigarette Smoking-Related Morbidity (visited June 28,1999), http://www.cdc.gov/tobacco/mortali. htm.

(42.) Centers for Disease Control & Prevention, Incidence of Initiation of Cigarette Smoking Among U.S. Teens (visited June 1,1999), http://www.cdc.gov/ tobacco/initfact.htm.

(43.) Id.

Ronald L. Motley is a partner with Ness, Motley, Loadholt, Richardson & Poole in Charleston, South Carolina. Anne McGinness Kearse an associate with the firm.
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Author:Kearse, Anne McGinness
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Date:Oct 1, 1999
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