Progress came slowly. But as scientific studies kept widening the range of health problems caused by tobacco, we continued to highlight the findings in oversight hearings. The purpose, as always, was to raise awareness that might lead to better laws and stronger regulation. One particular focus was the effect of secondhand smoke. During the 1980s, a number of studies began to amplify its dangers—demonstrating, for instance, that nonsmoking spouses of heavy smokers develop lung cancer at far higher rates that other nonsmokers, and that babies whose mothers smoke developed infections and diseases far more readily than those whose mothers didn’t. In 1986, Koop authored the first surgeon general’s report devoted to examining the effects of secondhand smoke. He concluded that “it is now clear that disease risk due to inhalation of tobacco smoke is not solely limited to the individual who is smoking, but can also extend to those individuals who inhale tobacco smoke in room air.” This was the news the tobacco industry feared. But while our hearings called attention to these findings, the initial results did not materialize in Washington, where the industry maintained a hammerlock, but at the state and local levels, prompting hundreds of anti-smoking ordinances in municipalities across the country.
In 1987, Representative Richard Durbin, an Illinois Democrat, finally forced the issue in Congress by introducing an amendment to the Federal Aviation Act banning smoking on airplane flights shorter than two hours. Durbin, the son of a two-pack-a-day smoker who died of lung cancer when he was fourteen, knew he faced an uphill battle. His proposal was opposed by the Transportation Department, then twice defeated in the House, first in an Appropriations subcommittee and again in the full committee. Only deft maneuvering and an assist from Claude Pepper of Florida, the chairman of the Rules Committee (who had helped create the National Cancer Institute as a senator in the 1930s), brought the Durbin amendment to the House floor and presented the first direct challenge to tobacco’s dominion.
The floor debate was a microcosm of the larger fight over tobacco. Supporters of the amendment, including me, emphasized the overwhelming scientific consensus about the dangers of secondhand smoke: the National Academy of Sciences, the American Cancer Society, and the surgeon general all agreed. Furthermore, polls showed that two-thirds of Americans supported a smoking ban on airplanes. The industry’s allies threw up every obstacle they could, arguing against the amendment on grounds of procedure (it had been defeated in subcommittee), cost of compliance (an industry group ginned up the figure of $613 million), safety (desperate addicts would surreptitiously smoke in airplane lavatories, creating “an onboard fire hazard”), complacency (“If it ain’t broke, don’t fix it”), and even, oddly enough, constitutionality (“It seems to me that under our Constitution,” Representative Dan Daniel of Virginia argued, “under our form of government, our philosophy, that if a person wants to smoke, they have the right to do that”). Others resorted to ridicule and scare tactics. Tom DeLay of Texas warned that “a smoking patrol” would “interrogate passengers” as they disembarked. Jim Bunning of Kentucky conjured up Orwellian squads of “smoke sniffers” crawling through airplanes to hunt for rogue puffers.
It was a reflection of tobacco’s power, of how thoroughly the industry had conditioned Americans to accept the ubiquity of cigarette smoking, that being forced to sit for hours in a big metal tube and breathe other people’s tobacco smoke needed to be debated at length on the floor of Congress. But as voting began, the outcome was very much in doubt. In the end, the Durbin amendment squeezed through by a single vote (the final tally being 198-193 after several members switched sides to keep up appearances once the outcome became clear) to everyone’s surprise, including Durbin’s.
NOT UNTIL 1993 DID WE ACHIEVE A BREAKTHROUGH THAT TRULY began to shift the balance of power. Our greatest difficulty in battling the tobacco industry had been our frustrating inability to find out what was happening on the inside. A veil of silence shrouded and protected the industry, which forced its employees, including scientists and researchers, to sign nondisclosure agreements that forbade them from revealing any internal information. But a handful had quietly begun to talk.
A convergence of several factors that year convinced our team that the time had come to intensify our campaign. The EPA had just released a comprehensive risk assessment of secondhand smoke certifying its carcinogenic qualities and revealing that children were at especially high risk. The report concluded that secondhand smoke was a “Class A” carcinogen like asbestos, arsenic, and benzene that caused three thousand lung cancer deaths each year. In response, we introduced legislation banning smoking in restaurants and federal buildings. Around the same time, David Kessler, the FDA commissioner so outspoken about the dangers of dietary supplements, announced plans to consider regulating cigarettes as a drug, after learning that the tobacco companies were manipulating nicotine levels to addict more smokers. Along with Congress and the federal agencies, the news media, too, had renewed their interest in Big Tobacco, delivering several penetrating investigations, none more illuminating than a Wall Street Journal series entitled “Smoke and Mirrors” that documented the industry’s “massive effort to cast doubt on the links between smoking and disease” by creating and funding entire organizations devoted to manufacturing bogus scientific research. The Health and Environment Subcommittee became a kind of clearinghouse for emerging information, as we held hearing after hearing and issued reports that drove the issue ever closer to the center of public attention.
Visibility brings sources. As stories about our oversight hearings appeared more and more frequently in newspapers and on television, a handful of researchers and scientists who had done work for tobacco companies got in touch with the committee and provided the first glimpse behind tobacco’s iron wall. What they described was often astonishing: tests on children to see how they reacted to tobacco smoke; cigarette advertising designed to hook children in order to capture their “brand loyalty” early in life; a South American laboratory where company scientists experimented with gene manipulation to produce a tobacco plant with a higher level of nicotine. One particularly helpful informant, a former research scientist at Philip Morris named Victor DeNoble, described to us how he had conducted comprehensive studies in the 1980s that demonstrated nicotine addiction and tolerance in rats—studies that Philip Morris had, in fact, twice forbidden him to publish. The company continued to insist publicly that its products were not addictive. This knowledge strengthened our resolve and helped guide our investigations and hearings. But the nondisclosure agreements prevented our sources from testifying or supplying the government with documentary evidence. We needed to find a way to share what they were telling us with the American public.
OVER AND ABOVE OUR INABILITY TO CALL THESE SCIENTISTS AND researchers as witnesses, an abiding frustration of the oversight hearings was the witnesses the industry did put forward. These were the highly compensated “experts” stationed at industry front groups like the Tobacco Institute and the Council for Tobacco Research whose work was bought and paid for precisely so that when Congress took up the issue of smoking it could be claimed that scientists remained uncertain as to whether tobacco had deadly effects. Although these fraudulent experts were always offset by our own legitimate ones, the very nature of a congressional hearing and its coverage in the news media creates a false equivalency that muddies the question of truth. Both sides tend to be treated equally, regardless of merit—which is, of course, precisely what the industry always counted on.
It was always clear to us that a major reason why the tobacco industry got away with such patent deception was because it operated through just these sorts of carefully chosen proxies. Tobacco had the best spokespeople, lawyers, lobbyists, ad men, and corporate icons that money could buy. This allowed the industry to hide the truth: that the very wealthy and powerful CEOs who controlled the seven major tobacco companies preyed on millions of people, including children, to generate ever larger profits at an enormous cost to society. The vast gulf between tobacco
’s myth and its reality was maintainable only because the American public had never been made to confront this disparity. We became convinced that the key to shattering tobacco’s public image and exposing the industry for what it really was (a necessary precursor to any serious reform) lay in setting up just such a confrontation.
By the spring of 1994, the collective weight of congressional investigations, oversight hearings, and pending legislation, along with Kessler’s efforts at the FDA, had thrust the tobacco industry into the unaccustomed position of being on the defensive. Getting a significant bill through Congress remained an unlikely proposition. But the weight of public opinion was beginning to swing against the industry. Americans were particularly repelled by the charge that tobacco companies were spiking the nicotine level in cigarettes to induce addiction—a turn of affairs that frightened the industry sufficiently that it filed a $10 billion libel suit against ABC News for its reports on the subject.
To force the issue, we invited Kessler to testify before the subcommittee about nicotine spiking. He appeared on March 25, 1994, to state that he considered cigarettes to be “high-technology nicotine delivery systems”—drugs, in other words—that warranted FDA regulation. In riveting testimony, he described the intricate methods by which tobacco companies controlled nicotine delivery, punching tiny holes in cigarette filters, for instance, to make “inhalation” more difficult for the smoking machines that government scientists use to measure tar—holes that an actual smoker would cover with his lips or fingers, thereby increasing the potency of the smoke and the amount of tar inhaled. Having put these public charges into play, I thanked him for his testimony, and, noting that the industry denied these claims, I issued a very public invitation to the seven tobacco company CEOs to appear before the subcommittee and offer a rebuttal. To raise the stakes even further, we announced that they would be the only witnesses invited to testify—and made clear that the hearing would be held whether or not they agreed to appear. If they chose not to avail themselves of the opportunity, the television cameras would capture seven empty chairs, leaving the public to draw its own conclusions about whether the tobacco industry had something to hide.
THERE WAS NO REASON, NO VALID ARGUMENT TO MAKE, FOR WHY they could not present themselves. The New York Times editorialized in favor of the idea, adding to the steadily growing pressure. Ultimately, they agreed to testify before the subcommittee on April 14.
For all the clamor, they probably did not regard the hearing as a serious threat, and certainly not as the pivotal moment that it wound up becoming. To all outward appearances, in fact, it hardly seemed a fair fight: a subcommittee chairman and his handful of allies against the most formidable industry Washington had known in forty years, its legions of high-priced lawyers and fixers filling up the gallery behind the seven powerful men at the witness table.
My own belief is that the CEOs viewed the hearing not as a threat but as an opportunity. The proceedings were taking place against a backdrop of growing populist anger at Washington and the Democratic Party that controlled it. Driven by aggressive Republican leaders like Newt Gingrich and Tom DeLay, momentum was already building toward what would become a historic rout in the midterm elections seven months hence that would deliver Congress to the Republicans. The popular Republican charge that Democrats favored intrusive big government was one the tobacco companies eagerly adopted, portraying their executives as victims of a power-addled chairman bent upon taking away everybody’s cigarettes. But as the CEOs stood in a row to be sworn in, they were unprepared to be confronted by facts rather than partisan ideology.
My staff and many of the members most closely aligned with us had spent weeks preparing for the showdown. We had organized the hearing around four issues that would be the focus of relentless questioning: What were the health effects of smoking cigarettes? Did the tobacco companies believe nicotine was addictive? Did they market cigarettes to children? Did they manipulate the nicotine level in their products?
Over the next seven hours, under the full glare of the spotlight, the CEOs testified together for the first time. Their struggle to provide compelling answers to these questions and the self-evidently false nature of so much of their testimony forever changed the way that Americans view the tobacco companies. At every turn, they denied that cigarettes were addictive, and yet readily admitted that they would prefer their own children not to smoke. The inconsistencies were plain for all to see.
One of the day’s most starkly memorable exchanges occurred between me and Andrew H. Tisch, chairman and chief executive of the Lorillard Tobacco Company, who had stated in an earlier sworn deposition that he did not believe cigarettes caused cancer. I asked him again whether he knew that cigarettes caused cancer.
“I do not believe that,” he replied.
“Do you understand how isolated you are from the scientific community in your belief?”
“I do, sir.”
The tobacco executives also denied marketing to children. Hearing this, Mike Synar of Oklahoma displayed an advertising poster that showed Joe Camel in a nightclub surrounded by young people who were hanging out and smoking. Synar pressed the executives repeatedly to explain who the ad was intended to reach, if not kids. As the back-and-forth proceeded, people could see the facts for themselves simply by looking at the poster. The CEOs’ positions became harder and harder to defend.
Our plan for the day was to extract more than just testimony. A high-profile hearing temporarily shifts the balance of power, presenting opportunities to those with the presence of mind to exploit them. Drawing out the CEOs gave us a brief tactical advantage by eliminating the lawyers and public relations types ordinarily in a position to run interference. It exposed the decision makers themselves, and did so on a public stage that limited their ability to dissemble. Synar used this advantage to spring a trap. Drawing on what we knew from Victor DeNoble, he asked William Campbell, the president and chief operating officer of Philip Morris, whether the company, despite its earlier denials, had indeed suppressed DeNoble’s study showing that laboratory animals could become addicted to nicotine. Campbell admitted that it had. Synar pressed further. In light of this news, would the company agree to waive DeNoble’s secrecy agreement and allow him to testify about his work? Campbell at first tried to hedge, replying that he’d have to check with the company’s lawyers to see if that would be possible. Synar wouldn’t relent, pointing out that Campbell, as the head of the company, had the final say. With the cameras rolling, it became impossible to hold out. Campbell was trapped. He reluctantly agreed to let DeNoble testify, setting the stage for the next act of the drama.
By day’s end, each of the tobacco chiefs had agreed, however grudgingly, to provide Congress with extensive, previously secret research that their companies had performed on nicotine addiction in humans and animals.
THE CEOS DID NOT SUBMIT MEEKLY TO OUR CHARGES. WHAT THE “anti-tobacco industry wants is prohibition,” James W. Johnston, chairman and chief executive of R. J. Reynolds Tobacco Company, declared in his testimony. Accusations of prohibitionist fanaticism filled the air, even though tobacco’s opponents, myself included, had repeatedly stated that, while we did support regulating cigarettes and wanted to find ways to lessen the health and safety dangers they posed, we had no intention of seeking to ban them outright.
In the days that followed the hearing, the industry went back on the offensive, marshaling the full strength of its forces to push back against the congressional “witch hunt.” But the charge never really gained traction. Big Tobacco seemed to have lost its grip on its own public image. The iconic picture of the seven CEOs being sworn in supplanted, in most people’s minds, the ad-generated myth that the industry had so brilliantly carried off for so long. And the impoverished arguments the executives had put forth at the hearing—Reynolds claimed that cigarettes were no more addictive than Twinkies—collapsed of their own weight. We had accomplished our primary purpose: The industry’s image was indelibly stained.
Even as the CEOs were testifying, the calls started pouring into our office from industry insiders outraged that their executives would so blatantly lie. Some of the most important witnesses against the industry, including Jeffrey Wigand, the vice president of research and development for the Brown & Williamson Tobacco Company, whose story was the basis for the hit movie The Insider, came forward after watching the hearing.
Two weeks after the CEOs testified, Victor DeNoble and his research partner, Paul Mele, appeared before the subcommittee to discuss their work for Philip Morris on the pharmacology of nicotine and its addictiveness in animals. Armed with graphic pictures, they described experiments in which rats were taught to depress levers that administered an intravenous injection of nicotine, how they gradually developed a tolerance that demanded ever greater amounts to achieve the same effect, and how they finally chose their nicotine fix over water. DeNoble testified that this research suggested that nicotine was addictive “on a level comparable to cocaine,” a conclusion that completely contradicted the testimony given by his own company’s CEO just days earlier.
The Waxman Report Page 18