The Cigarette Century
Page 43
“When you look at the entire decision, it’s good for us,” explained Steven Parrish, vice president and general counsel of Philip Morris. Laurence Tribe responded, “If this is a victory for the smoking industry, I wonder what kind of nuclear meltdown it would take to make them admit defeat.”107
The Court did leave the door ajar for suits against tobacco companies by not ruling out plaintiffs’ claims of fraud and misrepresentation by the industry. Still, the legal basis for bringing individual claims against the industry had become more constricted. Moreover, the Cipollone litigation, which had cost Edell and his firm several million dollars to pursue—as the industry had intended—stood as a powerful disincentive to any lawyers considering a future suit. If Edell had not succeeded with a suit that looked so promising, the likelihood of a big victory, and consequent award, now appeared to have poorer odds than a roulette wheel. In the years immediately after the Third Circuit vacated the award to Cipollone, the filing of new litigation slowed to a trickle.108
At first, Edell was all for retrying the case on the basis of the Supreme Court’s rulings. But any support within his firm for pursuing tobacco litigation had now all but disappeared. He soon withdrew, and the family—after more than nine years of litigation—decided to end the case. Edell then dropped his other pending tobacco cases. In each instance it was difficult, if not impossible, to find law firms that would step into such costly and risky litigation.109
Edell and his current firm, Budd Larner, Gross, Rosenbaum, Greenberg & Sade, had made unprecedented commitments in both time and money to suing the tobacco companies and had come up empty-handed after a cash outlay widely estimated to be near $10 million. Edell had spent more than 3,000 hours a year during the Cipollone trial; more than one hundred motions had been briefed. For him and his partners, taking on tobacco plaintiffs had proven to be a “bad business decision.” One former partner at Budd Larner complained, “There was a direct relationship between what I had in my checkbook and Marc Edell.”110
The industry pursued what Richard Daynard, a leading proponent and strategist of antitobacco litigation, called a “king of the mountain” strategy. 111 Industry lawyers used a wide range of procedural tactics designed to discourage the plaintiffs’ bar. R.J. Reynolds attorney J. Michael Jordan explained:The aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs’ lawyers . . . to paraphrase General Patton, the way we won all of these cases was not by spending all of [R.J. Reynolds’s] money, but by making the other son of a bitch spend all his.112
Edell’s brilliant challenge to the industry had taken nearly a decade of tenacious work and brought no reward. “Marc was sort of like Moses taking his people across the Red Sea, but not being able to go to the promised land,” offered Daynard. “Other people will have to finish the job.”113
The Cipollone case marked a critical transition in both the legal and social history of the cigarette in American life. For the first time, the courts—even including the Supreme Court—had emerged as a critical battle site in the tobacco wars. The industry had long feared the emergence of such aggressively contested litigation. Much of its strategy since the 1950s had centered on reducing the risks of unpredictable and financially devastating tort claims. In the courts, antitobacco advocates certainly had not found a level playing field; nonetheless, they had found a field. The courts opened up a new and important venue for tobacco regulation and public health initiatives.
Tobacco litigation became a lightning rod for a larger public debate about the role of tort litigation in American society. For critics of the liability revolution, suits against the tobacco companies epitomized the excesses of tort claims, if not the ultimate perversion of the courts. According to such arguments—encouraged by the industry—tobacco litigation was an abuse of the legal system in several ways. First, it was a veiled attempt to secure through the courts regulatory legislation that Congress had never enacted. This marked a constitutionally inappropriate breach in the separation of powers. Second, the litigation created a radical expansion of torts that threatened to flood all industries with costly and spurious claims from consumers. Finally, tobacco liability was seen as a cultural failure: the refusal of individuals to take responsibility for their own willful actions. It was the height of moral hypocrisy, according to this view, for Rose Cipollone, and others like her, to try to hold the tobacco industry responsible for her illness and death after she had been repeatedly warned by both her husband and the surgeon general that smoking could kill her. Case closed.
These arguments did not go uncontested. Advocates for tobacco litigation believed they had at last found a forum to confront the deceptions and frauds perpetrated by the tobacco industry since the development of medical knowledge demonstrating the harms of smoking. Tobacco regulation had crashed and burned in Congress, where the tobacco lobby had proven itself so powerful and effective, but public health would finally have its day in court. Through the litigation process—and especially the discovery of internal industry documents—the companies’ strategy of denial of the science and aggressive promotion of their product would finally be revealed. Judges and juries would then force the industry to pay its victims their due. If the legislatures were “captured,” the judiciary would now charge tobacco’s massive costs in health and well-being back to those who were truly responsible.
Liability would be the spur to corporate responsibility in a consumer age. Torts, these advocates asserted, were Big Tobacco’s Achilles’ heel. Liability cases had been the expressed nightmare of the companies since 1954, when the first case was filed. Now, after four decades, the companies would confront this nightmare in the light of day.
For Edell, the goals had been compensation for Rose Cipollone and her family for the wrongs committed by the industry and, not trivially, compensation for himself and his firm. He had taken huge risks and failed. But from the perspective of public health, there were critical victories that made the case a turning point in the history of tobacco litigation. Perhaps the most significant of these was the discovery of incriminating industry documents. Eager lawyers and antitobacco advocates were sure there were more where those came from.
Others were skeptical about what such suits would accomplish. Would a big settlement for the Cipollone family, had it occurred, have helped control smoking? Would it have led to a decline in tobacco-induced illness? These were important questions, but they overlooked the potential of liability to assign responsibility and contribute to new public health strategies. Even as Edell failed in Cipollone, he had demonstrated to antitobacco activists that the courts now offered a new venue of possibility in the ongoing tobacco wars. Following Cipollone, litigation would be the heavy cloud over the future of the industry.
The battles in the courtroom illuminated deep faults in the American cultural geology. On one side of the culture wars, such cases were viewed as the ultimate abdication of personal responsibility. Individuals who had suffered because of their own willful self-indulgence now sought sympathy and compensation (often in the millions if not billions) from corporate America. Such suits were seen as marking the corrosion and the corruption of basic moral assumptions about risk, blame, and responsibility. The litigation represented the refusal of individuals to take responsibility for their folly and the perverse use of the system of justice.
Proponents of tobacco litigation, on the other hand, saw such cases as an opportunity to bring a greedy, unregulated industry to the bar of justice. For these people, the tobacco industry marked the worst excesses of American corporate capital. It was a business where profits had trumped all sense of citizenship or responsibility for the dire effects of their product. In this view, the courts offered the last recourse to victims of the frauds and deceptions perpetrated by a morally bankrupt industry.
In this deeply contested debate over the meaning and nature of agency, responsibility, and addiction, cigarettes hold a speci
al place. They are a legal product, powerfully identified with the rise of the consumer culture, yet a remarkably dangerous one. When such products cause harm, how do we adjudicate responsibility? When the product turns out to have addictive properties, how does this change our perception of responsibility? Addiction has historically served the complex and even contradictory functions of relieving some individuals of responsibility for their actions and generating moral outrage. While many Americans have become convinced of the addictiveness of cigarettes—and increasingly understand the role of the companies in creating these addictions—there remains a strong disposition to continue to hold smokers accountable for their actions. While we insist medically and scientifically that addictions are diseases meriting support and treatment, we also insist that individuals must take responsibility for their plight if they are to be treated.
At stake in such debates about addiction are deep cultural norms and values about the nature of agency and the dynamics of social and personal control. On the one hand, we seem increasingly aware of the powerful corporate forces in modern societies that subtly and not so subtly shape opinion, behavior, and action, often in ways that do not conform to individual interests and health. Nonetheless, the need to believe that we can and must assert individual will over these forces is a characteristic element of contemporary American culture. Embedded in this tension lies both our hostility to the cigarette and those who produce it, and our ongoing skepticism and antagonism toward those who smoke.
We have looked at the data and the data that we have been able to see has all been statistical data that has not convinced me that smoking causes death.1
ANDREW TISCH, 1994
CEO, LORILLARD
Cigarette smoking is no more addictive than coffee, tea, or Twinkies.2
JAMES W. JOHNSTON, 1994
CEO, R.J. REYNOLDS
For decades, the tobacco companies have been exempt
from the standards of responsibility and accountability
that we apply to all other American corporations.
Companies that sell aspirin, cars, and soda are all held
to strict standards when they cause harm. We don’t
allow companies to sell goods that recklessly endanger
consumers. We don’t allow them to suppress evidence of
dangers when harm occurs. We don’t allow them to ignore
science and good sense. And we demand that
when problems occur, corporations and their senior executives
be accountable to Congress and the public.3
CONGRESSMAN HENRY WAXMAN, 1994
Whatever the challenges, the industry cannot be left to peacefully reap billions of dollars in profits, totally unrepentant, and without thought to the pain caused in the process. For that remains its intent.4
DAVID KESSLER, 2001
FORMER FDA COMMISSIONER
CHAPTER 11
Mr. Butts Goes to Washington
THE TOBACCO INDUSTRY had dodged a bullet. In decades of litigation against the companies brought by individuals claiming fraud and deception, there had never been a case as long and powerfully argued as Cipollone. Yet in the face of this attack, the industry had largely sustained the argument for the individual smoker’s assumption of risk. Edell had argued not only that cigarettes were addictive but that the companies knew about the effects of nicotine from their own research. Nonetheless, the jury deemed Rose Cipollone—addicted though she might be—principally responsible for her own death. The experts might split hairs over definitions of habit, habituation, addiction, and dependence, but it had been widely known for over a century that cigarettes were hard to quit. Yet as the industry kept repeating, millions had done so.
It was another thing entirely, however, to assert that the companies had deliberately taken steps to maintain the addictive nature of their product. This was precisely the claim that would be made beginning in 1994. A potent combination of investigations by journalists, Congress, and the Food and Drug Administration—as well as continued litigation—would be fueled by unprecedented whistle-blower revelations from within the industry. For the first time, scientists from within the secure laboratories of Big Tobacco would emerge to reveal the industry’s sophisticated knowledge about the pharmacologic properties of cigarettes. To these accounts would be added a mountain of incriminating internal documents: memos, letters, and reports that the industry had scrupulously guarded from disclosure.
Already under severe stress, the companies would soon discover that the terrain of the tobacco wars had undergone a seismic shift. The public was about to get a look inside the complex machinery of cigarette research and development, as well as the public relations and political strategies that had guided the industry since the fateful days of late 1953. The firewall surrounding the tobacco industry’s intricate scientific, legal, and trade secrets was about to come down. It was one of the great ironies that this industry, so protective of its prerogatives and so aggressive in defense of its secrets, would be so publicly exposed that we now know more about the history of the tobacco industry than any other business in the history of business. Indeed, this book would not have been possible without access to that archive.
In 1991, Walt Bogdanich, a Pulitzer Prize-winning reporter at the Wall Street Journal, was hired by ABC News to work for a broadcast news-magazine then under development, to be known as Day One. Bogdanich, who had won his Pulitzer for a series of articles exposing unregulated medical laboratories, was in search of stories. Sidney Wolfe, the activist physician directing Ralph Nader’s Public Citizen Health Research Group, referred him to Clifford Douglas, a longtime tobacco control advocate and attorney who was then working for the American Cancer Society. After consulting with Douglas, Bogdanich decided to do a series of three eighteen-minute segments on nicotine. The first piece, “Secret Sickness,” which aired in late 1993, was about “green tobacco sickness” a form of severe nicotine poisoning suffered by tobacco pickers after extended contact with the leaves. In producing this report, Bogdanich became increasingly knowledgeable about the chemistry and toxicology of nicotine.5
Douglas had been confidentially contacted by an informant from R.J. Reynolds, who soon came to be called “Deep Cough”—in a reference to Watergate informant “Deep Throat”—by Bogdanich’s team at ABC. She agreed, somewhat reluctantly, to tell Bogdanich about the production process at R.J. Reynolds, becoming one of the first industry whistle-blowers to go public. Anchor Forrest Sawyer led off the segment, which aired on February 28, 1994, by explaining that “for nearly a year Day One has been investigating nicotine—the ingredient in cigarettes that keeps smokers addicted—and we’ve discovered that cigarette manufacturers had been carefully controlling levels of nicotine in cigarettes.”6 John Martin, the on-camera reporter of the piece, told viewers that Day One had “uncovered perhaps the tobacco industry’s last best secret—how it artificially adds nicotine to cigarettes, to keep people smoking and boost profits.” According to Martin, “The methods the cigarette companies use to precisely control the levels of nicotine is something that has never before been disclosed to consumers or the government.”7 He went on to quote from a Philip Morris document that had become available through the discovery process in Cipollone: Think of the cigarette pack as a storage container for a day’s supply of nicotine.
Think of the cigarette as a dispenser for a dose unit of nicotine.
Think of a puff of smoke as the vehicle of nicotine.8
Deep Cough had described a process that had become standard throughout the tobacco industry. Part of cigarette production required separating the tobacco leaves from the stems. Once simply discarded, beginning in the 1940s and 1950s these stems and other scraps were recovered and used.9 Through a process known as pulping, their soluble elements could be removed and then pressed into sheets to make thin rolls of “reconstituted leaf,” which was then ground up and used in cigarettes along with natural tobacco leaf.10 But this was not the only by-product. As the pu
lp was made into sheets, the rollers squeezed out a liquid, often called “tobacco liquor,” that was rich in sugars and nicotine. Extract from this liquid was added back—often sprayed on—to the reconstituted leaf. According to Deep Cough, who appeared in silhouette with her voice disguised, tobacco liquor was purchased from the “flavor houses” that produced the complex recipes for adding taste to tobaccos. The Day One report showed a clip of tankers unloading barrels, purportedly of nicotine to be added to reconstituted leaf.
Following the recognition that tars were carcinogenic, the companies had made significant efforts to reduce their volume in cigarettes, typically by adding filters. Reduced tar, available in so-called “light” cigarettes, quickly became a critical aspect of cigarette promotion. But less tar also meant less nicotine. Within the industry, it was widely understood that nicotine was essential to the product, the key ingredient motivating “dependence.” As Philip Morris nicotine expert William Dunn noted in 1972, “No one has ever become a smoker by smoking cigarettes without nicotine.” 11 Thus, it became critical to the companies to produce a “light” cigarette with enough nicotine to sustain addiction. Otherwise demand for cigarettes would ultimately decline.
Bogdanich and his ABC colleagues now claimed that they had discovered the industry’s “secret” of adding back nicotine into cigarettes. Bogdanich had a good ear for the explosive sound bite. His report showed Jack Henningfield, a leading addiction expert at the National Institute on Drug Abuse, calling cigarettes “the crack cocaine form of nicotine delivery.” Cliff Douglas, who had helped coax a nervous Deep Cough to go on camera, added, “The public doesn’t know the industry manipulates nicotine, takes it out, puts it back in, uses it as if it were sugar being put in candy.” Confronted onscreen with the ABC findings, Democratic Congressman Mike Synar, a strong critic of the industry, said, “it disgusts me.”