The Cigarette Century

by Allan Brandt

  Another expert for the plaintiff, consumer psychologist Joel B. Cohen, offered a theory of cognitive dissonance to account for Cipollone’s smoking. According to Cohen, Cipollone had minimized the findings linking smoking to disease to reduce the “dissonance” between her desire to continue smoking and her concerns about its impact. Cohen claimed that brand switching, especially to filters and light cigarettes, was one important mechanism by which dependent smokers dealt with their ambivalence about cigarette use.66

  Rose Cipollone herself—now dead for over three years—was, in a sense, on trial. The outcome would turn on her behavior and how it was regarded by the jury. Edell vigorously sought to demonstrate that Cipollone was addicted and that the addictive properties of cigarettes had been well-known to the companies. The defendants emphasized that “Rose Cipollone was fully aware of the alleged risks of smoking before she began smoking and at all times thereafter.” The industry insisted that smoking was purely a “personal choice,” and so it had been for Cipollone.67

  Addiction subverted this traditional industry position. And it disrupted the claim of “assumption of risk.” As Edell argued, Cipollone did not knowingly “assume” the risks of addiction and cancer when she began smoking as a sixteen-year-old girl. The trial illuminated a long history of debates about addiction and nicotine. Even though the difficulty of quitting cigarettes had been widely recognized since the nineteenth century, there was considerable disagreement about whether this difficulty constituted an addiction. There were questions about the pharmacologic properties of nicotine as well as considerable medical and social uncertainty about the definition of addiction and its relationship to “habituation.” The trial would reveal a deep cultural ambivalence about the meaning of “addiction.”68

  Meanwhile, the surgeon general’s office, under the leadership of C. Everett Koop, was preparing a new surgeon general’s report on nicotine addiction. Released to much fanfare and debate in May 1988—during the trial—the report offered three major conclusions. First, cigarettes were addicting. Second, nicotine was the drug causing addiction. And third, the pharmacologic and behavioral processes determining nicotine addiction “are similar to those that determine addiction to drugs such as heroin or cocaine.” The explicit comparison to powerful, illicit drugs was a carefully considered strategy on Koop’s part.69 It generated intense media coverage of his report as well as intense controversy, stirred by the industry.

  Koop’s report focused on the science of addiction, as well as new findings about nicotine that had emerged since the first surgeon general’s report was published in 1964. Research over the previous decades had demonstrated that tobacco use possessed the three characteristics of all addictive substances: dependence, tolerance, and withdrawal. Fundamental research into the pharmacokinetics and pharmacodynamics of nicotine demonstrated it to be clearly within the scientific rubric of addictive substances. This research, Koop explained, overturned the 1964 report’s conclusion that cigarette smoking was “habituating” rather than “addicting.”

  The first surgeon general’s report had sought to dispel concerns that nicotine led to addiction. It did, however, confirm that cigarettes could be habit-forming: “Smokers and users of tobacco in other forms usually develop some degree of dependence upon the practice, some to the point where significant emotional disturbances occur if they are deprived of its use.” Still, the committee reached the comforting conclusion that the “evidence indicates this dependence to be psychogenic in origin.” The committee drew a sharp distinction between “habituation” and “addiction,” assuring the public that “the biological effects of tobacco, like coffee . . . are not comparable to those produced by morphine, alcohol, barbiturates, and many other potent addicting drugs.” Following definitions promulgated by the World Health Organization, the 1964 report insisted that addiction was a more severe condition than habituation and indicated an underlying psychiatric disease. Addictions led to states of “periodic or chronic intoxication” and of “overpowering desire” to continue taking the drug and “to obtain it by any means.” Further, addictive substances had a “detrimental effect on the individual and society.” Habituation merely led to a “desire (but not a compulsion)” to continue using the drug and an absence of physical dependence. Most importantly, the detrimental impacts, “if any,” fell primarily on the individual.70

  Given the popularity of cigarette smoking at mid-century and its legitimacy in American culture, identifying smokers as having a psychiatric disorder must have seemed extreme to Terry’s committee. They ultimately agreed to punt on the fundamental question of the nature of nicotine. In subsequent decades, as the meaning of smoking shifted and definitions of addiction became more rigorously systematized into disease models, nicotine would come to be incorporated into the medical and psychiatric nomenclature of addiction—a critical transformation that led, ultimately, to Surgeon General Koop’s Report on Nicotine Addiction.71 This shift had important implications for Cipollone in her suit.

  If the goal of the 1964 report was to demonstrate categorically that smoking caused pathology, the next two decades’ research established smoking as a pathology, an addiction to a powerful and dangerous drug. Increasingly, smoking was embedded in an emerging discourse of “substance abuse.” Terry’s distinction between habit and addiction did not survive the vigorous medical and scientific scrutiny of the cigarette.72

  As the incentives for quitting rose sharply, many responded. Smoking rates among Americans declined steadily after 1964, from a high of over 40 percent to approximately 25 percent thirty years later. Over 40 million Americans successfully quit during these years.73 Yet the very fact that so many Americans gave up their cigarettes suggested to some that it was less addictive than other drugs. Further, as the industry liked to point out, unlike most other addictive drugs, cigarettes did not impair judgment. This was a critical element of the companies’ argument about personal responsibility. According to industry logic, Rose Cipollone, had she chosen to do so, could have joined the 40 million other Americans who had quit smoking over the previous three decades. Yet ironically, the more that smokers sought to quit, the more they came face to face with withdrawal and tobacco craving. It was the recognition of the harms of smoking that explicitly exposed its addictive properties.

  As Marc Edell attempted to introduce the 1988 report into evidence, the industry subjected both it and Koop to withering criticism, mounting what it would call a “contradiction of common sense” defense against the claim that cigarettes were addictive. Charles O. Whitely of the Tobacco Institute said that the comparison of cigarette smoking to cocaine and heroin use “trivializes, and almost mocks, the serious narcotic and other hard drug problems faced by our country.” Koop had deliberately sought to incorporate tobacco into the “drug problem.” Major newspapers like the Boston Globe attacked what they perceived to be Koop’s effort to include smoking in the drug abuse crisis of the 1980s:Smoking bears no resemblance to drug abuse or alcohol abuse. Smoking does not affect mental acuity, nor temporarily derange a person, nor produce so much as a lull in anyone’s contact with reality.74

  The industry also pointed to the large number of Americans who had now quit smoking as proof that nicotine was not addictive in any commonly used sense of the word. Walker Merryman of the TI commented:Well, I think it’s very clear that, as the Surgeon General also told us, forty-three million people have quit smoking. And ninety-five percent of those who quit do so on their own. Now, if that’s an addiction, then the definition of addiction has been stood on its head. There’s nothing about smoking that interferes with an individual’s ability to make a decision about whether or not to quit or continue, unlike truly addictive drugs, such as heroin or cocaine or other things which impair the individual’s ability to make that decision.75

  “I’ve not heard of anyone holding up a liquor store or mugging an old lady to get money to buy cigarettes,” Merryman told the Wall StreetJournal.76

  Nonetheless, Judge Saro
kin agreed to admit the Koop report into evidence. At the trial, Edell would go beyond simply proving the addictiveness of cigarette smoking: he would show that the tobacco companies had known the addictive properties of nicotine for decades. Despite their campaign to discredit the Koop report, the companies had been deeply involved in studying the scientific and behavioral effects of nicotine since at least the 1960s.

  Edell used internal industry documents to show that the rise of medical evidence implicating cigarettes as a cause of lung cancer and other diseases had spurred the companies to conduct new research into the biochemistry of their product and its physiological effects. He also introduced memos in which tobacco lawyers who followed this research expressed concern about how the publication and discussion of such studies might make the industry vulnerable to litigation. In a 1983 legal memo produced by the law firm Shook, Hardy & Bacon evaluating research done by Philip Morris researchers Victor DeNoble and Paul Mele that demonstrated the “reinforcing properties of nicotine,”77 the firm concluded that “their overall results are extremely unfavorable”78 and that “research such as this strengthens the adverse case against nicotine as an addictive drug.”79

  Shook, Hardy & Bacon recommended that company scientists stop all research on the addictive properties of nicotine.

  Research engaged in, as well as some possibly under consideration, by Philip Morris, has undesirable and dangerous implications for litigation positions the industry takes in regard to smoking behavior. The pharmacological nature of the research implies strongly a view of the importance of nicotine. What is worse, research reports under Philip Morris’ sponsorship contain claims of physiological tolerance to nicotine, as well as claims of unequivocal demonstrations of reinforcement by nicotine in animals. This kind of research is a major tool of our adversaries on the addiction issue; the irony is that industry-sponsored research is honing that tool. In the final analysis, the performing and publishing of nicotine research clearly seems ill-advised from a litigation point of view.80

  During this same period, industry executives and scientists began to speculate more explicitly about ways to deliver nicotine without the risks of tar. R.J. Reynolds researcher Claude Teague made clear:It should then be possible, using modifications of techniques developed by the pharmaceutical and other industries, to deliver that nicotine to the user in efficient, effective, attractive dosage form, accompanied by no “tar,” gas phase, or other allegedly harmful substances.81

  At the trial, Edell would introduce several internal documents that confirmed the industry’s knowledge of the addictive properties of cigarettes. For example, expert witness Jeffrey Harris cited a memorandum from J. L. Charles, a Philip Morris researcher, noting that nicotine has “powerful” effects on the body and “may be the most important component of cigarette smoke.” Charles had argued that “nicotine and an understanding of its properties are important to the continued well being of our cigarette business since [it] has been cited often as ‘the reason for smoking’ ”; he also noted that nicotine had effects on the “nervous system as well as influencing memory, learning, pain perception, response to stress and level of arousal.”82 A memo from Philip Morris researcher W. L. Dunn put it more boldly, describing a cigarette pack as “a storage container for a day’s supply of nicotine,” a cigarette as a “dispenser for a dose unit of nicotine,” and “a puff of smoke” as a “vehicle of nicotine.” He went on to say:The physiological effect [of smoking] serves as the primary incentive; all other incentives are secondary.

  The majority of the conferees would go even further and accept the proposition that nicotine is the active constituent of cigarette smoke. Without nicotine, the argument goes, there would be no smoking.83

  These documents and others, Edell contended, proved that Cipollone’s smoking was not simply a matter of choice.

  At trial the industry would also assert, as it had for decades, that it had yet to be demonstrated that smoking causes lung cancer. Nearly a quarter-century after the first surgeon general’s report, the industry still took the position that the harms of smoking were “not proven.” By the time of the trial, this claim was barely credible, and the defense lawyers downplayed it. They did, however, offer evidence that Cipollone’s particular type of lung cancer was not typically associated with smoking. Sheldon Sommers, a pathologist, and longtime member of the Scientific Advisory Board of the CTR, and an experienced industry witness, testified, “It’s my opinion that cigarette smoking has not been proved to be a cause of lung cancer.” He added, however, that “it is a risk factor.” This carefully parsed conclusion would become the industry’s new “official” position in the years following the trial. At the same time, Sommers, who had examined the slides from Cipollone’s right lung, concluded that her cancer, a type called atypical small cell lung cancer, was not caused by smoking.84 In other words, even if smoking did cause some lung cancers, it did not cause Cipollone’s.

  The tobacco companies mounted a classic “plaintiff-conduct” defense. As one tobacco-industry lawyer explained, “people think there’s something a little tawdry about deciding to smoke and then turning around and suing the tobacco companies.”85 Using this argument, even if cigarettes did cause Rose Cipollone’s death, it was not the tobacco companies’ responsibility. This defense was viewed within the industry as reducing the “strictness” of strict liability. A focus on the behavior of the plaintiff would direct attention away from the product and its dangers. Throughout the trial, attorneys repeatedly pointed to the evidence that Cipollone, by her own admission, understood the dangers of smoking and had knowingly and voluntarily exposed herself to the risks. The key issue, they stressed, was not the reality of these risks but whether Cipollone was duly aware of them. They contended that she was well-informed and had therefore “consented” in her decision to continue to smoke. The industry would consistently portray Cipollone as a smart, forceful, determined, and independent woman, capable of quitting or continuing to smoke at her own discretion.

  This tactic gave the industry a powerful psychological advantage in their arguments before the jury. In American culture, the ability of individuals to take control over their behaviors and their health is the cornerstone of rational notions of personal responsibility. Edell was forced to assert that Cipollone was not in control. Not only did this view not comport with jurors’ views of her—repeatedly offered by the defense—it also threatened a view of the world in which individuals can and should take action to secure their health. Blaming the tobacco companies disrupted this powerful cultural notion of individual control.

  Edell sought to show that the mandated warning labels had been “drowned out” by the industry’s aggressive advertising and promotion. The defense sought to rebut this argument by asserting that the “information environment” was saturated with warnings about the potential harms of smoking. Slang terms like coffin nails to describe cigarettes, which long pre-date the first surgeon general’s report, showed that the public had been warned long before the congressionally mandated labels. Given such hostile terms and the wide media coverage of rising health concerns in the 1950s, the industry argued that it would have been impossible for Cipollone not to know the purported risks of using its product. Frederick C. Carstensen, a University of Connecticut economics professor who served as an expert witness for the defense, offered the opinion that “common knowledge” of the risks of smoking was widespread. He testified that the Bergen County Record, the local newspaper where Cipollone lived, had carried some 155 articles on the relationship of smoking and health in the five years prior to the mandated warning labels.86

  Such testimony did not go uncontested. On cross-examination, Edell forced Carstensen to admit that the many articles he collected constituted less than 1 percent of all the stories printed in those years. Moreover, the articles that Carstensen cited as indicative of the “information environment” also contained industry denials concerning the link of cigarettes to disease. Carstensen, a political economist who h
ad never previously researched tobacco issues, was also forced to admit that he had not investigated the impact of advertising, movies, and other instances where cigarettes were portrayed as “socially desirable” or glamorous within the “information environment.” Nonetheless, the industry had effectively asserted that knowledge about the harms of tobacco was widespread for decades.

  The next industry expert, Claude Martin of the University of Michigan School of Business, offered testimony supporting the industry claim that advertising’s principal rationale was to encourage smokers to switch brands. According to Martin, advertising had little impact on decisions to take up smoking. Sarokin interceded, asking Martin, “If a cigarette manufacturer put out an ad showing an attractive young woman in a tennis outfit in a nice setting, or put an ad showing a funeral for that woman and said, smoking kills, you mean that second ad would not have an impact on the information environment?” Defense lawyers objected, calling the judge’s interrogation “prejudicial.”87

  The star witness for the defense proved to be Joseph Cullman III, CEO of Philip Morris, who was actually called to testify by Edell. Even though Liggett & Myers was the company principally at risk (especially as trial claims came to center on the period before 1966, when Cipollone smoked Chesterfields and L&Ms), the defense team relied on the gregarious, energetic Cullman to rebut the allegations of industry malfeasance. Ironically, it was rising concern about the health impacts of smoking that had helped to turn Cullman’s small boutique company, Benson and Hedges, into a target for acquisition by Philip Morris in the early 1950s. Benson and Hedges’s principal brand, Parliament, had been introduced with a cotton filter in 1931. In the face of rising public anxieties about the health risks of smoking, Philip Morris bought Parliament, the company’s filter expertise, and the redoubtable Cullman. By the time of the Cipollone trial, he was widely credited with moving Philip Morris from a marginal spot in the constellation of major tobacco companies to the center of the tobacco universe. He had played a central role in the reconstruction of the Marlboro brand and had initiated major programs for international marketing and diversification of the company.88