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The Cigarette Papers.

In August 1970 a leading tobacco defense attorney, David R. Hardy, wrote a confidential letter warning that indiscreet comments by industry scientists, including references to "biologically active" components of cigarette smoke and "the search for a safer cigarette," "constitute a real threat to the continued success in the defense of smoking and health litigation. Of course, we would make every effort to 'explain' such statements if we were confronted with them during a trial, but I seriously doubt that the average juror would follow or accept the subtle distinctions and explanations we would be forced to urge." Such remarks by employees, Hardy explained, would suggest "actual knowledge on the part of the defendant that smoking is generally dangerous to health, that certain ingredients are dangerous to health and should be removed, or that smoking causes a particular disease. This would not only be evidence that would substantially prove a case against the defendant company for compensatory damages, but could be considered as evidence of willfulness or recklessness sufficient to support a claim for punitive damages."

The letter was among the Brown & Williamson documents leaked to anti-smoking activist Stanton A. Glantz and New York Times reporter Philip J. Hilts in 1994. It nicely summarizes the quandary of the cigarette companies, which developed largely because of their own dishonesty and continues to this day. In the 1950s, responding to the first widely publicized studies finding a link between smoking and lung cancer, the industry adopted a skeptical posture that was initially reasonable but has long since become a joke. It created the Tobacco Industry Research Council, later renamed the Council for Tobacco Research, supposedly to fund studies examining "all phases of tobacco use and health." Although some CTR-funded researchers produced further evidence of tobacco's hazards, most worked in areas far afield from the CTR's ostensible focus, while certain "special projects" were deliberately selected to cast doubt on the connection between smoking and disease. The CTR helped maintain the pretense that more research was needed - always and forever. The industry's strategy, as Tobacco Institute Vice President Fred Panzer put it in a 1972 memo, was "creating doubt about the health charge without actually denying it." Company officials steadfastly maintained that the case against smoking was not conclusive, and it soon became clear that no amount of evidence would sway them from that position.

In adopting this strategy, the cigarette companies hoped to prevent a decline in sales, discourage government regulation, and avoid potentially ruinous product liability. As the evidence about the health hazards of smoking accumulated, and especially after the 1964 surgeon general's report, liability protection - avoiding the appearance of"actual knowledge" - eclipsed the other concerns. True, the cigarette companies continued to aim propaganda about "the smoking and health controversy" at the general public. The Cigarette Papers, a guide to the juiciest Brown & Williamson documents assembled by Glantz and four co-authors, describes plans in 1969 for a public relations campaign intended to "set aside in the minds of millions the false conviction that cigarette smoking causes lung cancer and other diseases." As late as 1985, R.J. Reynolds ran misleading ads suggesting that a large epidemiological study had not found evidence of a link between smoking and heart disease. But in a culture saturated with warnings about the hazards of smoking, from school curricula to the surgeon general's messages on every pack of cigarettes, few people were buying the industry's wait-and-see line.

It nevertheless remained true that conceding a causal link between smoking and disease would make it easier for tobacco plaintiffs to prevail in court. Furthermore, as Hardy noted in 1970, a sudden reversal of the industry's long-standing position would invite punitive damages based on charges of deliberate wrongdoing. The tobacco companies have always feared (and their opponents have always hoped) that one successful suit would lead to a flood of litigation, sweeping the industry away. Nowadays that fear seems more realistic than ever, given the hundreds of pending state lawsuits, secondhand smoke claims, class actions, and cases filed by individual smokers. In August, a Florida jury told Brown & Williamson to pay Grady Carter, a former smoker with lung cancer, $500,000 in damages, plus $250,000 to his wife. If upheld, this would be the first-ever award to a smoker for tobacco-related disease. In these circumstances - and despite the Liggett Group's settlement of several state lawsuits and the now-defunct Castano class action - the tobacco companies are more determined than ever not to yield an inch.

As these three books show, the industry's defense strategy has produced several paradoxes. Industry lawyers simultaneously argue that the hazards of smoking have never been proven (casting doubt on the link between cigarettes and the plaintiff's illness) and that everyone knows smoking is bad for you (showing that the plaintiff voluntarily assumed the risk). Cigarette manufacturers insisted they were not acknowledging the hazards of smoking even as they responded to health concerns by introducing brands with filters and lower tar yields. Until the late 1980s, despite much research on the issue, tobacco companies declined to market cigarette designs that promised substantial safety improvements, apparently fearing that such innovations would impugn conventional cigarettes by implication and expose them to liability. Now attorneys suing the tobacco companies (including Grady Carter's lawyer) cite the failure to market safer cigarettes as evidence of negligence. Similarly, the industry's see-no-evil attitude, which was supposed to protect it from liability, has prompted charges of a conspiracy to deceive the public - a central theory in most of the current lawsuits.

It is also the central thesis of both The Cigarette Papers and Hilts's Smokescreen. The jacket of Glantz et al.'s book promises "a shocking inside account" that will "fundamentally change the public's perception of the industry." How, exactly, isn't clear. It's not as if the tobacco companies, commonly viewed as sneaky, slimy, and sinister, have been getting a free ride until now. The book does offer many interesting and often amusing contrasts between public and private statements by industry officials. It also brings out the tension between those who favored a more candid approach (usually scientists) and those who insisted that the industry dared not concede anything that might be useful to the enemy (usually lawyers). Had the former group prevailed, the tobacco companies today might not be the most reviled and distrusted industry in America. But their very reputation suggests that the conspiracy of deception alleged by the lawsuits was not terribly successful. In his foreword to The Cigarette Papers, former Surgeon General C. Everett Koop notes that "the public knows about the deleterious effects of smoking," and "[e]ven smokers do not believe what they hear from the tobacco industry." Nevertheless, he says, "smokers and nonsmokers alike should feel misled by the tobacco companies and their deceptive practices." Got that? They should feel misled, even if they weren't.

Similarly, the subtitle of Hilts's book promises "The Truth Behind the Tobacco Industry Cover-Up," which is basically this: When they claimed to believe that smoking may not cause lung cancer, or that nicotine isn't addictive, they didn't really mean it. This "expose," the jacket says, is a "shocking, fascinating, and infuriating page-turner" that will "make your blood boil." That may be true, but only if you shell out 22 bucks for this over-hyped book, instead of getting a free review copy like I did. It's not that Hilts offers nothing useful or interesting (although there is little here that you can't get from the other two books); it's just that readers expecting startling disclosures will instead find details about something they already know. Tobacco industry dishonesty is a cliche, not a revelation.

In other words: Duh. Both Glantz and Hilts anticipated this objection. "The thing that shocked me was that it was all there," Glantz told The Chronicle of Higher Education in April. "It's a little bit like knowing your wife is sleeping with someone else, versus walking in and catching them. Anybody who follows the tobacco issue, and who's thought about it, just assumed the tobacco companies knew all this stuff - that the tobacco companies had a better understanding of nicotine addiction than anybody else, that they knew smoking caused cancer and heart disease - because they had to. I mean, they're not stupid. But to see it all spelled out in their own words is amazing."

In a much cited 1963 memo, for example, Addison Yeaman, then Brown & Williamson's vice president and general counsel, stated flatly that "nicotine is addictive. We are, then, in the business of selling nicotine, an addictive drug effective in the release of stress mechanisms." The minutes from a 1978 research conference sponsored by BAT, Brown & Williamson's parent company, said, "There has been no change in the scientific basis for the case against smoking. Additional evidence of smoke-dose related incidence of some diseases associated with smoking has been published. But generally this has long ceased to be an area for scientific controversy." Unlike many of the indiscretions cited by Glantz et al., which could be explained away (though not very convincingly) by creative lawyers, such statements directly contradict the industry's public positions. The amazing thing, though, is not so much the content of the statements as the fact that they were committed to paper and preserved.

Hilts, for his part, attributes doubts about the significance of the tobacco industry cover-up to the conspirators themselves: "But everyone knows what the situation is anyway, they say. It's not as if anyone were actually deceived by the company comments on addiction or the waffling on the hazards of smoke. We only have to speak that way because of what we'll be forced to do in court if we are too open in front of the enemy." Then he goes on, for several paragraphs, to compare people who say such things to "the guards and doctors in the Nazi death camps." Later he concedes that tobacco companies "don't want to be blown all over the landscape by the legal actions of angry smokers when they do admit what they have been doing," and "[t]he fear is understandable." Nevertheless, he insists, "it should be required that the companies come clean."

Hilts's commitment to honesty is admirable. I wish he honored it a bit more consistently. Here is what he has to say about me, in a section on secondhand smoke: "They [tobacco companies] paid writers to get stories out attacking the science and the scientists. In one series of ads, a piece by Jacob Sullum, who works for a foundation supported by tobacco, was run whole. In other ads, it was excerpted with the headline, 'If we said it, you might not believe it.' But of course, they did say it. Sullum not only works for a tobacco supported foundation, but was paid directly by the company when they used his story. And, more to the point, his arguments came from industry sources and articles...."

Glantz et al. make a similar effort to discredit me. First they recount a notorious episode from the late 1960s: A public relations agent working for Brown & Williamson paid a sports writer, Stanley Frank, to produce an article criticizing the evidence on smoking and health. The Tobacco Institute, through a P.R. firm, ran an ad promoting the article, which appeared in the January 1968 issue of True magazine, and distributed reprints of the piece. Immediately after relating this story, under the heading, "USING THE SAME TECHNIQUE IN THE 1990s," Glantz et al. note that two of my articles have been reprinted in tobacco company ads.

Here's what actually happened: In 1994 I wrote an op-ed piece for The Wall Street Journal about the Environmental Protection Agency's report on secondhand smoke. R.J. Reynolds subsequently used the piece in an ad campaign and paid me for the reprint rights. I also wrote an article about press coverage of the secondhand smoke issue, which appeared in the Summer 1994 issue of Forbes MediaCritic. Philip Morris reprinted that article in a series of ads. I did not give the company permission to do so (MediaCritic had all rights to the article), and I was not paid. Pace Hilts, neither piece "attack[ed]...scientists," and neither quoted or cited "industry sources and articles." The critics of the EPA report on whom I relied are respected scientists who agree that smoking is hazardous but emphasize that the evidence against secondhand smoke is much less convincing.

In addition to suggesting that I am a tobacco industry flack, Hilts and Glantz et al. insinuate that the Reason Foundation, which publishes this magazine, is some kind of front group for the cigarette companies. Hilts alludes to, and Glantz et al. explicitly mention, donations from Philip Morris - which last year amounted to less than 1 percent of the foundation's budget. To anyone familiar with the foundation or the magazine, the idea that we adopt whatever positions we think will please our donors is more than a little silly. But Hilts neither names the foundation nor mentions the magazine; indeed, from his description you would not even know my occupation. This is like identifying Hilts, not as a reporter for The New York Times, but as an employee of a company supported by anti-smoking groups (which take out ads in the Times). Not exactly false, but pretty misleading - just the sort of thing for which he faults the tobacco industry.

Hilts also neglects to mention that the MediaCritic article reprinted by Philip Morris criticizes him by name for sloppy reporting on the secondhand smoke issue. He has never, to my knowledge, answered that criticism, and his book actually repeats one of the mistakes (by another reporter) that I cited in my article. In 1994, he notes, Philip Morris ran an ad that said: "A large U.S. study published in the American Journal of Public Health found no overall statistically significant link between second-hand smoke and lung cancer. Why did the EPA not include this study?" Hilts says "[t]he study, in fact, supported the EPA conclusion," and "[i]t would be difficult to imagine advertising that is more deceitful." He quotes the following comment from the researchers: "In summary, our study and others conducted during the past decade suggest a small but consistent elevation in the risk of lung cancer in nonsmokers due to passive smoking. The proliferation of federal, state and local regulations that restrict smoking in public places is well founded." That is indeed what the researchers said, but the issue is what their data showed. Not only did the study fail to find a statistically significant overall relationship between lung cancer and exposure to secondhand smoke in childhood or adulthood, but almost none of the subgroup results were significant either. Given the large size of the sample, it is reasonable to think that including these data would have had a noticeable impact on the EPA's calculations.

The basic syllogism on which Hilts and many of his fellow journalists rely when they write about secondhand smoke goes something like this: The tobacco companies are lying when they say the evidence against smoking is not conclusive, so they must be lying when they say the evidence against secondhand smoke is not conclusive. Hilts calls the industry's criticism of the claim that secondhand smoke kills "almost a motion-by-motion replay of 1953 and 1954, when the industry had to begin its campaign of denying that smoking itself causes disease." This facile analogy is convenient, since it means you don't have to look at the evidence very carefully. You can simply dismiss skeptics as tools of the industry. Yet Hilts himself, though persuaded that secondhand smoke causes lung cancer, writes that "the data assessing...other illnesses has not been collected in large enough samples yet." He seems to be saying the evidence is not conclusive. He sounds just like the tobacco companies!

Unlike Hilts, Richard Kluger does not fall into the trap of assuming that, whatever the tobacco companies say, the opposite must be the truth. Kluger is highly critical of the industry's posture vis-a-vis the health effects of smoking - especially the decision to actively criticize the research, instead of simply remaining silent. But he recognizes that public health officials and anti-smoking activists, in their eagerness to discourage smoking by making it inconvenient and socially unacceptable, have exaggerated both the strength of the evidence against secondhand smoke and the magnitude of the risks involved. "[T]he government's agencies," he writes, "seemed nearly as capable in this instance of blowing smoke at the public to cloud the scarcity of cold, clinical science in support of the indictment of ETS as a substantial public health risk as the cigarette companies had habitually been in denying and distorting the overwhelming scientific case against direct use of their product." Furthermore, "by stressing the risk of ETS exposure, the smoking control movement was effectively trivializing the risk from direct smoking, which was thirty to forty times greater. It was an incendiary, effective, but questionable tactic for those on the side of the angels."

As that observation suggests, Kluger is basically sympathetic to the anti-smoking movement but prepared to criticize its errors and excesses. He takes a much broader and longer view than either Hilts or Glantz et al., and the result is far more nuanced and evenhanded. Kluger spent six and a half years on Ashes to Ashes, interviewing hundreds of sources and absorbing a huge amount of material from scientific studies, books, and press reports. He says his task was "to try to suspend moral judgment as long as possible in sifting through this immense and untidy collection of materials in order to craft a coherent social narrative about an industry that was, after all, a thriving enterprise well before a conclusive scientific consensus on the hazards of its products was achieved. My intent throughout has been to bring an unpremeditated approach to a subject that has historically generated more heat than light." In this respect he is remarkably successful, telling the story of the American tobacco industry not as a morality play but as a complex drama full of ambiguous characters and fascinating detail. Kluger's account is stylish, witty, and engaging - an impressive accomplishment given the amount of information he has managed to include. Although his eventual judgment of the industry is harsh, he cannot hide his appreciation for the entrepreneurial talents of the men who built it.

"The question," Kluger writes in his foreword, "is whether cigarette merchants are businessmen basically like any other, selling a product judged to be hazardous long after its usefulness to millions was well established, and are now sorely abused by 'health fascists' and moralizing busybodies, or are they moral lepers preying on the ignorant, the miserable, the emotionally vulnerable, and the genetically susceptible?" To his credit, he never explicitly answers that question - his book is too subtle for that - but he clearly leans toward the latter description. Kluger's prejudices are those of a conventional left-liberal: He is more wary of corporations than the state; he exaggerates the power of advertising; and he never doubts the government's authority to promote "public health" by discouraging risky behavior. But despite his unexamined premises, he is refreshingly fair-minded, willing to question the dogma of the anti-smoking movement. He is skeptical, for example, of the claim that smokers impose costs "on society" that should be recouped through higher excise taxes. Of the state lawsuits seeking compensation for Medicaid costs associated with smoking, he asks, "Was this any more reasonable than demanding that automakers and oil companies reimburse the states for their highway maintenance and driving-caused injury cost?"

Kluger's book shows that a knowledge of history is important in evaluating the claims of tobacco's opponents. Take the uproar that began in 1994, when Food and Drug Commissioner David Kessler suddenly discovered that nicotine was an addictive drug and that tobacco companies were manipulating it. "That nicotine was the ingredient in tobacco that induced a habitual craving for, dependency upon, or addiction to smoking cigarettes - call it what you will - had been common scientific knowledge for much of the twentieth century," Kluger writes. "That manufacturers had been controlling or manipulating the amount of nicotine their customers ordinarily derived from their cigarettes had been known for forty years, ever since the introduction of filter tips, to students of the subject, and to any portion of the public that thought a moment about it."

Kluger also reminds us that the wonderfully innovative legal arguments that are all the rage nowadays, including the cover-up charge, the alternative design claim, and the idea that addiction negates assumption of risk, have been used before without success. In Cipollone v. Liggett, filed in 1983, attorney Marc Z. Edell, using hundreds of previously confidential industry documents for support, argued that the tobacco companies had conspired to deceive consumers about the dangers of cigarettes. As a result, Rose Cipollone, who was "severely dependent" on tobacco, was falsely reassured and continued smoking until she got lung cancer. The jurors didn't buy it. They did find that Liggett had not adequately cautioned consumers in the era prior to federally mandated warnings and had in fact breached warranties of safety offered by certain ads. But they deemed Rose Cipollone 80 percent responsible for her disease, since she had chosen to smoke, and therefore did not award any damages in her name. Instead, they gave her husband a sympathy award of $400,000, which was overturned on appeal.

The recent award to Grady Carter, whose attorney submitted some of the Brown & Williamson documents as evidence, may indicate that jurors are now more receptive to the conspiracy theory. After the trial, one of the jurors said, "We wanted to send a message to the tobacco companies: We ain't going to take it no more." In other words: Cut the crap. Juries in many other kinds of cases have been only too willing to give sympathetic plaintiffs money from the deep pockets of big corporations. It's just that smokers trying to blame others for their self-inflicted injuries have not seemed very sympathetic. But then neither have tobacco companies. Since they are viewed in a more sinister light nowadays than ever before, the balance may be shifting.

Whether it should is another matter. Yes, the industry's position on the hazards of smoking has been disingenuous and irresponsible. But does it amount to fraud? The answer is clearer when it comes to early advertising claims. A 1952 Liggett ad cited in Cipollone, for example, announced, "Nose, Throat, and Accessory Organs Not Adversely Affected by Smoking Chesterfields." Even at a time when evidence about the health effects of smoking was still emerging, such claims were reckless, and they can reasonably be viewed as guarantees of safety. But after the mid-1950s, the tobacco companies eschewed bold reassurances. Instead of promising safety, they expressed doubts about the hazards of smoking. Except to the extent that they misrepresented their own beliefs - which is the essence of the "cover-up" decried by Hilts and Glantz et al. - what industry spokesmen said was not, by and large, literally false. Indeed, they carefully phrased their statements to avoid direct denial of tobacco's hazards.

More to the point, it is difficult to show that consumers relied on these legalistic evasions in deciding whether to smoke. Supporters of tobacco product liability suits argue that the industry's statements make it easier for smokers to continue their habits by offering them rationalizations: Maybe it really isn't that dangerous. Maybe I won't get sick. But it would take a smoker's willing creation of disbelief to escape what has been common knowledge for decades: that smoking is dangerous and hard to give up. "How, then," wonders Kluger, "to justify a claim that the cigarette makers had massively imposed an intentionally addicting product on an innocent public that had little knowledge or choice in the matter?"

Consider Rose Cipollone. She was exposed to hundreds of articles on the hazards of smoking. Her husband and her children repeatedly urged her to quit. She recalled that in 1964, when the Surgeon General's Advisory Committee concluded that smoking causes lung cancer, "I didn't want to hear it. I liked to smoke. It gave me something to do." Beginning in 1966, every pack she smoked carried a warning from the surgeon general. She acknowledged that she understood the warning meant "smoking was dangerous," though she insisted, "I didn't believe it." She said she felt "that if there was anything that dangerous, that the tobacco people wouldn't allow it and the government wouldn't let them do that." Still, when she developed a "smoker's cough" in the mid-'60s, "I was making novenas, I was so scared that I was getting sick, and I used to make all kinds of promises to God if he didn't let me have cancer, that I wouldn't do this and I wouldn't do that."

At some level, Rose Cipollone clearly knew that smoking was bad for her, though she did not like to think about it. The question is whether the tobacco companies should be held liable for assisting such self-deception. The answer hinges on how strictly we define individual responsibility and, conversely, how broadly we define fraud. One thing seems pretty clear: The tobacco companies didn't fool anyone who didn't want to be fooled.

Senior Editor Jacob Sullum (jsullum@aol.com) is writing a book about the anti-smoking movement for The Free Press.
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Author:Sullum, Jacob
Publication:Reason
Article Type:Book Review
Date:Dec 1, 1996
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Previous Article:Arts & artifacts.
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